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Max Planck Yearbook of

United Nations Law

Volume 15 2011


United Nations Law

Founding Editors Jochen A. Frowein Rüdiger Wolfrum


United Nations Law

Volume 15 2011

Editors Armin von Bogdandy

Rüdiger Wolfrum

Managing Editor Christiane E. Philipp

Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

This book should be cited as follows: Max Planck UNYB Printed on acid-free paper. ISSN: 1389-4633 ISBN: 978-90-04-22124-6 Copyright 2011 Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed in The Netherlands. Articles from previously published volumes are electronically available under www.mpil.de/red/yearbook

Commemorating

DAG HAMMARSKJÖLD

29 July 1905 – 18 September 1961

Contents

List of Contributors ................................................................................ IX Abbreviations ....................................................................................... XIII Grewe, Constance/ Riegner, Michael,

Internationalized Constitutionalism in Ethnically Divided Societies: Bosnia-Herzegovina and Kosovo Compared .................... 1

Orakhelashvili, Alexander,

The International Court’s Advisory Opinion on the UDI in Respect of Kosovo: Washing Away the “Foam on the Tide of Time” ................................................................................................... 65

Kolb, Andreas S./ Salomon, Tim René/ Udich, Julian,

Paying Danegeld to Pirates – Humanitarian Necessity or Financing Jihadists ............................................................................ 105

Manger-Nestler, Cornelia,

Impacts of International Law on the Restructuring of the Global Financial System .................................................................. 165

Mehring, Sigrid,

Medical War Crimes ......................................................................... 229 Douhan, Alena,

Commonwealth of Independent States – Is There Any Chance to Establish an Effective System of Collective Security in the Region? .............................................................................................. 281

Max Planck UNYB 15 (2011) VIII

Tanaka, Yoshifumi, Protection of Community Interests in International Law: The Case of the Law of the Sea ....................................................... 329

Nasu, Hitoshi,

The UN Security Council’s Responsibility and the “Responsibility to Protect” ............................................................. 377

Haugen, Hans M.,

Human Rights Principles – Can They be Applied to Improve the Realization of Social Human Rights? ....................................... 419

Kirschner, Adele J.,

The Human Right to Water and Sanitation .................................... 445 Gulati, Rishi,

The Internal Dispute Resolution Regime of the United Nations ................................................................................. 489

Book Reviews ........................................................................................ 539

List of Contributors

Douhan, Alena Dr., Associate Professor of the Department of International Law, Bela-rusian State University, Minsk, Belarus Grewe, Constance Professor of Public Law, University of Strasbourg, and Visiting Profes-sor at the Max Plank Institute for Comparative Public Law and Inter-national Law, Heidelberg; Vice-President of the Constitutional Court of Bosnia and Herzegovina Gulati, Rishi University of New South Wales; Bachelor of Laws with Honors (Aus-tralian National University), LL.M. Advanced Studies Program in Pub-lic International Law (Leiden University) Haugen, Hans M. Associate Professor, Diakonhjemmet University College, Oslo, Nor-way. From 2009-2012 responsible for the Norwegian Research Council funded project “Biofuels and Human Rights” Kirschner, Adele J. Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg; Ph.D. candidate at the Faculty of Law, University of Heidelberg, Germany Kolb, Andreas S. LL.M. (University of British Columbia, Vancouver, Canada); Ph.D. candidate at the Bucerius Law School, Hamburg, Germany

Max Planck UNYB 15 (2011) X

Manger-Nestler, Cornelia Dr. iur., LL.M., Professor of German and International Economic and Business Law at Leipzig University of Applied Sciences (HTWK Leip-zig), Germany Mehring, Sigrid Senior Research Fellow in the Max Planck Research Group on “Ethics and Law in the Areas of Biotechnology and Biomedicine” at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg; Ph.D. candidate at the Faculty of Law, University of Ham-burg, Germany Nasu, Hitoshi BA, MA (Aoyama Gakuin), M. Int’l L., Ph.D. (Sydney); Lecturer in Law, The Australian National University, Canberra, Australia Orakhelashvili, Alexander LL.M cum laude (Leiden), Ph.D. (Cantab.); Lecturer, School of Law, University of Birmingham, United Kingdom Riegner, Michael Senior Research Fellow and Ph.D. candidate at Justus-Liebig-University Gießen, Germany; Member of the Schumpeter Research Group “Law and Governance of Development Cooperation”; Consult-ant for the legal reform project of the German development agency Ge-sellschaft für Internationale Zusammenarbeit (GIZ) in Kosovo Salomon, Tim R. Senior Research Assistant and Ph.D. candidate at the Bucerius Law School, Hamburg, Germany; Associate at the International Max Planck Research School for Maritime Affairs, Hamburg, Germany

List of Contributors XI

Tanaka, Yoshifumi Ph.D., DES (Graduate Institute of International and Development Studies, Geneva), LL.M. (Hitotsubashi University, Tokyo); Associate Professor of Law, Faculty of Law, University of Copenhagen, Denmark Udich, Julian Senior Research and Teaching Assistant and Ph.D. candidate at the Bucerius Law School, Hamburg, Germany

Abbreviations

ACABQ Advisory Committee on Administra-tive and Budgetary Questions

AD Annual Digest of Public International Law Cases

A.F.D.I. Annuaire Français de Droit Internatio-nal

AJDA Actualité Juridique – Droit Administra-tif

AJIL American Journal of International Law Am. U. Int’l L. Rev. American University International Law

Review Am. U. J. Int’l L. & Pol’y American University Journal of Inter-

national Law and Policy Anu. Der. Internac. Anuario de Derecho Internacional Arch. de Philos. du Droit Archives de Philosophie du Droit ASIL American Society of International Law Aus Pol. & Zeitgesch. Aus Politik und Zeitgeschichte Austr. Yb. Int’l L. Australian Yearbook of International

Law Austrian J. Publ. Int’l Law Austrian Journal of Public International

Law AVR Archiv des Völkerrechts Brook. J. Int’l L. Brooklyn Journal of International Law B. U. Int’l L. J. Boston University International Law

Journal BVerfGE Entscheidungen des Bundesverfas-

sungsgerichts (Decisions of the German Federal Constitutional Court)

Max Planck UNYB 15 (2011) XIV

BYIL British Yearbook of International Law Cal. L. Rev. California Law Review Cal. W. Int’l L. J. California Western International Law

Journal Cal. W. L. Rev. California Western Law Review Case W. Res. J. Int’l L. Case Western Reserve Journal of Inter-

national Law Chi. J. Int’l L. Chicago Journal of International Law CLJ Cambridge Law Journal CML Rev. Common Market Law Review Colo. J. Int’l Envtl. L. & Pol’y Colorado Journal of International En-

vironmental Law and Policy Colum. Hum. Rts L. Rev. Columbia Human Rights Law Review Colum. J. Transnat’l L. Columbia Journal of Transnational

Law Colum. L. Rev. Columbia Law Review Comunità Internaz. La Comunità Internazionale Conn. J. Int’l L. Connecticut Journal of International

Law Cornell Int’l L. J. Cornell International Law Journal CTS Consolidated Treaty Series CYIL Canadian Yearbook of International

Law Den. J. Int’l L. & Pol’y Denver Journal of International Law

and Policy DGVR Deutsche Gesellschaft für Völkerrecht

(German Society of International Law) Dick. J. Int’l L. Dickinson Journal of International Law Duke J. Comp. & Int’l L. Duke Journal of Comparative and In-

ternational Law Duq. L. Rev. Duquesne Law Review EA Europa-Archiv ECOSOC Economic and Social Council ed. editor eds editors

Abbreviations XV

e.g. exempli gratia EJIL European Journal of International Law ELJ European Law Journal Env. Policy & Law Environmental Policy and Law Envtl L. Rep. Environmental Law Reports EPIL Encyclopedia of Public International

Law et al. et alii et seq. et sequentes etc. et cetera EuGRZ Europäische Grundrechte-Zeitschrift FAO Food and Agriculture Organization Fla. J. Int’l L. Florida Journal of International Law Fordham Int’l L. J. Fordham International Law Journal Fordham L. Rev. Fordham Law Review Foreign Aff. Foreign Affairs Foreign Pol’y Foreign Policy Ga. J. Int’l & Comp. L. Georgia Journal of International and

Comparative Law Geo. Int’l Envtl L. Rev. Georgetown International Environ-

mental Law Review Geo. L. J. Georgetown Law Journal Geo. Wash. J. Int’l L. & Econ. George Washington Journal of Interna-

tional Law and Economics Geo. Wash. L. Rev. George Washington Law Review GYIL German Yearbook of International

Law Harv. Int’l L. J. Harvard International Law Journal Harv. L. Rev. Harvard Law Review Hastings Int’l & Comp. L. Hastings International and Compara- Rev. tive Law Review HRLJ Human Rights Law Journal HRQ Human Rights Quarterly HuV-I Humanitäres Völkerrecht – Informa-

tionsschriften

Max Planck UNYB 15 (2011) XVI

IAEA International Atomic Energy Agency ibid. ibidem; in the same place IBRD International Bank for Reconstruction

and Development ICAO International Civil Aviation Organiza-

tion ICJ International Court of Justice ICLQ International and Comparative Law

Quarterly ICSID International Centre for Settlement of

Investment Disputes id. idem; the same IDA International Development Association i.e. id est; that is to say IFAD International Fund for Agricultural

Development ICC International Criminal Court IJIL Indian Journal of International Law ILA International Law Association ILC International Law Commission ILCYB Yearbook of the International Law

Commission ILM International Legal Materials ILO International Labour Organization ILR International Law Reports ILSA J. Int’l L. ILSA Journal of International Law (In-

ternational Law Students Association) IMF International Monetary Fund IMO International Maritime Organization Ind. Int’l & Comp. L. Rev. Indiana International and Compara-

tive Law Review Ind. J. Global Legal Stud. Indiana Journal of Global Legal Studies Int’l Aff. International Affairs Int’l Law. The International Lawyer Int’l Rev. of the Red Cross International Review of the Red Cross

Abbreviations XVII

Iowa L. Rev. Iowa Law Review IP Die internationale Politik Isr. L. R. Israel Law Review Isr. Y. B. Hum. Rts Israel Yearbook on Human Rights J. History Int’l L. Journal of the History of International

Law J. Int’l Aff. Journal of International Affairs JA Juristische Arbeitsblätter JIEL Journal of International Economic Law JIR Jahrbuch für internationales Recht JPR Journal of Peace Research JWT Journal of World Trade Law & Contemp. Probs Law and Contemporary Problems LJIL Leiden Journal of International Law LNTS League of Nations Treaty Series Loy. L. A. Int’l Comp. L. Rev. Loyola of Los Angeles International

and Comparative Law Review McGill L. J. McGill Law Journal Miami U. Int’l & Comp. L. University of Miami International and Rev. Comparative Law Review Mich. J. Int’l L. Michigan Journal of International Law Mich. L. Rev. Michigan Law Review Mil. L. Rev. Military Law Review Minn. J. Global Trade Minnesota Journal of Global Trade N. Y. U. J. Int’l L. & Pol. New York University Journal of Inter-

national Law and Politics N. Y. U. L. Rev. New York University Law Review NAFTA North American Free Trade Agreement NATO North Atlantic Treaty Organization NILR Netherlands International Law Review NJCL National Journal of Constitutional Law NJW Neue Juristische Wochenschrift Nord. J. Int’l L. Nordic Journal of International Law

Max Planck UNYB 15 (2011) XVIII

NQHR Netherlands Quarterly of Human Rights

NYIL Netherlands Yearbook of International Law

Ocean & Coastal L. J. Ocean and Coastal Law Journal Ocean Dev. Int. Law Ocean Development and International

Law OJEC Official Journal of the European Com-

munities Pace Int’l Law Rev. Pace International Law Review PCIJ Permanent Court of International Jus-

tice Pol. Sci. Political Science RADIC Revue Africaine de Droit International

et Comparé RBDI Revue Belge de Droit International RdC Recueil des Cours de l’Académie de

Droit International RDI Revue de Droit International, de Sci-

ences Diplomatiques et Politiques RECIEL Review of European Community and

International Environmental Law REDI Revista Española de Derecho Interna-

cional Rev. Dr. Mil. Dr. Guerre Revue de Droit Militaire et de Droit de

la Guerre RGDIP Revue Générale de Droit International

Public RIAA Reports of International Arbitral

Awards Riv. Dir. Int. Rivista di Diritto Internazionale RTDE Revue Trimestrielle de Droit Européen RUDH Revue Universelle des Droits de

L’homme San Diego L. Rev. San Diego Law Review Santa Clara L. Rev. Santa Clara Law Review

Abbreviations XIX

Stanford J. Int’l L. Stanford Journal of International Law Stanford L. Rev. Stanford Law Review SZIER/ RSDIE Schweizerische Zeitschrift für interna-

tionales und europäisches Recht/ Revue Suisse de Droit International et de Droit Européen

Temp. Int’l & Comp. L. J. Temple International and Comparative Law Journal

Tex. Int’l L. J. Texas International Law Journal Tex. L. Rev. Texas Law Review Transnat’l L. & Contemp. Transnational Law and Contemporary Probs Problems Tul. Envtl L. J. Tulane Environmental Law Journal Tul. J. Int’l & Comp. L. Tulane Journal of International and

Comparative Law U. Chi. L. R. University of Chicago Law Review UCDL Rev. University of California Davis Law

Review UCLA J. Envtl L. & Pol’y University of California Los Angeles

Journal of Environmental Law and Policy

UCLA J. Int’l L. & University of California Los Angeles Foreign Aff. Journal of International Law and For-

eign Affairs UCLA Pac. Basin L. J. University of California Los Angeles

Pacific Basin Law Journal UNCIO United Nations Conference on Interna-

tional Organization UNCITRAL United Nations Commission on Inter-

national Trade Law UNCTAD United Nations Conference on Trade

and Development UNDP United Nations Development Pro-

gramme UNEP United Nations Environment Pro-

gramme

Max Planck UNYB 15 (2011) XX

UNESCO United Nations Educational, Scientific and Cultural Organization

UNFPA United Nations Population Fund UNHCR United Nations High Commissioner

for Refugees UNICEF United Nations Children’s Fund UNIDO United Nations Industrial Develop-

ment Organization UNITAR United Nations Institute for Training

and Research UNJYB United Nations Juridical Yearbook UNRWA United Nations Relief and Works

Agency for Palestine Refugees in the Near East

UNTS United Nations Treaty Series UNU United Nations University UNYB Yearbook of the United Nations UPU Universal Postal Union Va. J. Int’l L. Virginia Journal of International Law Va. L. Rev. Virginia Law Review Vand. J. Transnat’l L. Vanderbilt Journal of Transnational

Law Vol. Volume VRÜ Verfassung und Recht in Übersee VVDStRL Veröffentlichungen der Vereinigung der

Deutschen Staatsrechtslehrer Wash. L. Rev. Washington Law Review WFP World Food Programme WIPO World Intellectual Property Organiza-

tion WMO World Meteorological Organization WTO World Trade Organization Yale L. J. Yale Law Journal Yale J. Int’l L. Yale Journal of International Law

Abbreviations XXI

ZaöRV/ HJIL Zeitschrift für ausländisches öffentliches Recht und Völkerrecht/ Heidelberg Journal of International Law

ZEuS Zeitschrift für europarechtliche Studien ZRP Zeitschrift für Rechtspolitik

Internationalized Constitutionalism in Ethnically Divided Societies: Bosnia-Herzegovina and Kosovo Compared

Constance Grewe*/ Michael Riegner**

A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 15, 2011, p. 1-64. © 2011 Koninklijke Brill N.V. Printed in The Netherlands.

Max Planck UNYB 15 (2011) 2

I. Introduction 1. Divided Societies as a Challenge for Internationalized Constitutional

Projects 2. Comparative Perspectives: Three Forms of Constitutionalism in Bos-

nia-Herzegovina and Kosovo II. The Historic Context and the Internationalization of Constitution-

Making in Bosnia-Herzegovina and Kosovo 1. The Historical and Ethno-Political Context 2. The Internationalized Genesis of the Constitutional Orders

III. Ethnicity in the Constitutional Orders and Constitutional Jurisprudence of Bosnia-Herzegovina and Kosovo 1. The Conceptual Status of Ethnic Groups: Between Ethnos and Demos 2. Territorial Organization: Local Self-Determination or Ethnic Segrega-

tion? 3. Ethnic Quotas and Vetoes: Balancing Protection and Participation

with Democratic Equality and Majority Rule IV. Forms and Defects of Internationalized Constitutionalism in Bosnia-

Herzegovina and Kosovo 1. Internationalized Constitutional Courts

a. Composition b. Competencies c. Applicable Law and Standards of Review

2. International Supervision by the Representatives of the International Community

V. Concluding Observations

Grewe/Riegner, Internationalized Constitutionalism 3

I. Introduction

Over the past decades, the international community has increasingly become involved in processes of state-building. These processes often include the creation of new constitutional orders. Although this is not an entirely new phenomenon, internationalized constitution-making has gained particular momentum since the mid-1990s in such diverse circumstances as Bosnia-Herzegovina, Macedonia, East Timor, Sudan, Afghanistan, Iraq and Kosovo.1 All these internationalized constitu-tional projects draw to some extent on basic concepts of liberal consti-tutionalism, such as democracy, separation of powers, rule of law and human rights. However, constitutional choices in these contexts go be-yond classical questions of the architecture of democracy and the rule of law. They pose the problem of constitutional design in “divided so-cieties”, and they raise the connected question of the legitimate consti-tutional role of international institutions and of international law.

1. Divided Societies as a Challenge for Internationalized Constitutional Projects

In political science, a society is considered as “divided” not simply be-cause it is ethno-culturally diverse. Rather what defines a divided soci-ety is that these differences are, in the words of Sujit Choudhry, “politi-cally salient – that is, they are persistent markers of political identity

* The views expressed here are given from a personal academic point of view

and not in an official judicial capacity. ** The views expressed here are his own and do not reflect the position of the

GIZ. Both authors would like to thank Karin Oellers-Frahm for her com-ments on an earlier version of this paper.

1 For an overview, see A. von Bogdandy/ S. Häußler/ F. Hanschmann/ R. Utz, “State-Building, Nation-Building, and Constitutional Politics in Post-Conflict Situations: Conceptual Clarifications and an Appraisal of Differ-ent Approaches”, Max Planck UNYB 9 (2005), 579 et seq., and further contributions in that volume; S. Chesterman, You, the People. The United Nations Transitional Administration, and State-Building, 2004; N. Feldman, “Imposed Constitutionalism”, Connecticut Law Review 37 (2004), 857 et seq. and the responses to his contribution in the same issue.


and bases for political mobilization”.2 Ethnicity is equated with politi-cal interest, and ethno-cultural diversity translates into political frag-mentation.3 Political parties often are organized along ethnic lines, and simple majority democracy risks turning into domination of one ethnic faction over others. The general lack of trust between ethno-political groups renders it difficult to reach consensus on important questions of public policy, including the constitutional order and its day-to-day functioning. Hence ways must be found to enact a constitution which institutes a legitimate form of government and guarantees the protec-tion of all ethnic groups, while still ensuring a modicum of governmen-tal effectiveness. What is more, in situations where many features of the classical nation state are absent, the constitution must often constitute the very demos that governs itself through this foundational text4 – i.e. it must help create the shared political identity which transcends the dominant ethnic allegiances. In short: the challenge is one of both state- and nation-building at the same time.5

The question of how to address these challenges has been at the heart of a debate in comparative political science for some time. Politi-cal scientists have highlighted mechanisms of power sharing, consocia-tional democracy or territorial autonomy, and they have discussed the adequate balance of accommodation and integration of ethnic diver-sity.6 Comparative constitutional law initially approached more con-temporary aspects of constitutionalism from the specific perspectives of transitional democracy, minority protection or human rights law. Only recently have comparative lawyers started to give deeper thought to di-

2 S. Choudhry, “Bridging comparative politics and comparative constitu-

tional law: Constitutional design in divided societies”, in: S. Choudhry (ed.), Constitutional Design for Divided Societies: Integration or Accom-modation?, 2008, 3 et seq. (5).

3 Ibid. 4 Ibid., 5-6. 5 On the distinction between state- and nation-building see von Bogdandy et

al., see note 1, 579 et seq. 6 B. Brian, “Political accommodation and consolidated democracy”, British

Journal of Political Science 5 (1975), 477 et seq.; A. Lijphart, Democracy in Plural Societies: A Comparative Exploration, 1977; D. Horowitz, Ethnic Groups in Conflict, 1985; G. Lehmbruch, Verhandlungsdemokratie. Bei-träge zur vergleichenden Regierungslehre, 2003; A. Lijphart, Thinking about Democracy: Power Sharing and Majority Rule in Theory and Prac-tice, 2008.


vided societies as a more general and comprehensive phenomenon which affects all areas of constitutional law.7

This turn to comparative law coincides with a renewed interest of international law scholars in constitutional engineering after interna-tional interventions. For international law and international institutions often influence the genesis, substance and institutional design of the new constitutions for post-conflict societies. While power sharing and consociational devices have been used for some time, internationaliza-tion is a rather recent attempt at coping with the particularities of di-vided societies. The integration of international and constitutional law is often given a positive connotation as a form of “progressive constitu-tionalism”, but international constitutional engineering also raises ques-tions with regard to the effectiveness and legitimacy of such external in-terventions in core areas of state sovereignty and popular self-determination. Generally speaking, models of internationalized consti-tutionalism in divided societies seem to challenge many of comparative constitutionalism’s basic theoretical prerequisites for legitimate gov-ernment. Consequently, as Joseph Marko puts it with regard to Kosovo, it is precisely such environments which may be the litmus test for mod-ern democratic theory and constitutionalist thinking.8

2. Comparative Perspectives: Three Forms of Constitutionalism in Bosnia-Herzegovina and Kosovo

In this article, we propose to approach divided societies from the per-spective of comparative constitutional law. We make an attempt to compare two internationalized constitutional projects which lend them-selves to comparison perhaps more than others: Bosnia-Herzegovina (BiH) and independent Kosovo, whose new constitution entered into

7 Y. Gai (ed.), Autonomy and Ethnicity: Negotiating Competing Claims in

Multi-Ethnic States, 2000; S. Tierney, Constitutional Law and National Pluralism, 2004; S. Choudhry (ed.), Constitutional Design for Divided So-cieties: Integration or Accommodation?, 2008. For a view of the practical relevance of constitutional law for managing cultural diversity worldwide, see UNDP, Human Development Report: Cultural Liberty in Today’s Di-verse World, 2004.

8 J. Marko, “Power Sharing and Territorial Pluralism in Kosovo”, in: F. Pal-ermo/ J. Woelk (eds), Territorial Pluralism in Comparative Perspective, 2011, in print.


force on 15 June 2008.9 Both territories share a common (constitu-tional) history within Yugoslavia and a similar experience of ethno-political violence. With ethnic tensions still ongoing, they both repre-sent “divided societies” as defined above. Both have been placed in a highly internationalized regime by the international community – BiH at the beginning of the new wave of internationalized constitutional en-gineering, Kosovo much further down the road in that process. Given the experiences with and criticisms of the Bosnian model,10 one might thus expect to find a certain learning curve in constitutional design in Kosovo. In addition, the experiences gained from the implementation of the Bosnian constitution might contain lessons for the same process which Kosovo is currently undergoing. Conversely, the solutions em-

9 For first substantive treatments of the Kosovo Constitution, see J. Marko,

“The New Kosovo Constitution in a Regional Comparative Perspective”, Review of Central and East European Law 33 (2008), 437 et seq.; M. Weller, “The Kosovo Constitution and Provisions for the Minorities in Kosovo”, European Yearbook of Minority Issues 6 (2006/07), 485 et seq.; D. Doli/ F. Korenica, “Calling Kosovo’s Constitution: A Legal Review”, The Denning Law Journal 22 (2010), 51 et seq.; id., “What about Kosovo’s Constitution: Is there anything special? Discussing the grundnorm, the sovereignty, and the consociational model of democracy”, Vienna Journal on International Constitutional Law 5 (2011), 49 et seq.; M. Riegner, “Die internationalisierte Verfassungsgerichtsbarkeit in Kosovo: Instrument zur Friedenssicherung und Entwicklungsförderung?”, ZaöRV/ HJIL 71 (2011), 543 et seq.; Marko, see note 8.

10 From the extensive literature, see on constitutional aspects for instance S. Yee, “The New Constitution of Bosnia and Herzegovina”, EJIL 7 (1996), 176 et seq.; C. Stahn, “Föderalismus im Dienste der Friedenssicherung – Bosnien-Herzegowina unter dem Friedensabkommen von Dayton”, in: Europäisches Zentrum für Föderalismus-Forschung Tübingen (ed.), Jahr-buch des Föderalismus, 2002, 393 et seq.; J. Marko, “Five Years of Constitu-tional Jurisprudence in Bosnia and Herzegovina: A First Balance”, Euro-pean Diversity and Autonomy Papers 7/2004, available at <www.eurac. edu/edap>; K. Oellers-Frahm, “Restructuring Bosnia-Herzegovina: A Model with Pit-Falls”, Max Planck UNYB 9 (2005), 179 et seq.; J. Woelk, “Stagnation oder Integration: die Verfassung Bosnien-Herzegowinas”, in: Europäisches Zentrum für Föderalismus-Forschung Tübingen (ed.), Jahr-buch des Föderalismus, 2009, 353 et seq.; C. Steiner/ N. Ademovic, Consti-tution of Bosnia and Herzegovina. Commentary, 2010; C. Grewe, “Territo-rialität und Ethnizität in Bosnien-Herzegowina oder wie unmöglich ist die Demokratie?”, in: Europäisches Zentrum für Föderalismus-Forschung Tübingen (ed.), Jahrbuch des Föderalismus, 2010, 329 et seq.


ployed in Kosovo may have ramifications for the necessary constitu-tional reform process in Bosnia.

The comparison illustrates that both BiH and Kosovo respond to the divided nature of their societies by combining three forms of consti-tutionalism: “classical”, “ethnic” and “internationalized” constitution-alism. For the purposes of this article, we understand “classical consti-tutionalism” as a specific combination of normative principles govern-ing the exercise of public authority, including the separation of powers, rule of law, human rights protection as well as democratic self-determination of a unified nation on the basis of citizenship, individual equality and majority rule. These elements of classical constitutionalism were modified in significant ways in BiH and Kosovo alike in order to adapt them to the contextual circumstances of the respective divided so-cieties. We group these modifications into two analytical categories, which we term “ethnicization” and “internationalization” of the consti-tutional orders. Hence, the aim of our comparison is, firstly, to high-light the differences and similarities in the “ethnic” and “international-ized” constitutional choices made and to inquire how far these choices represent modifications of classical constitutionalist thinking. Secondly, we will attempt to evaluate how the respective constitutional choices perform in terms of legitimacy and governmental effectiveness, and we will try to point out problems and lessons learned.

Our analysis proceeds in four steps: we will begin in Part II. by briefly setting out the respective ethno-political and historic contexts and the internationalized genesis of the constitutional orders. In Part III., we address selected elements of ethnic constitutionalism and com-pare how the constitutional orders and constitutional jurisprudence at-tempt to balance recognition and accommodation of ethnic diversity on the one hand and inclusion and integration on the other hand. In Part IV., we turn to internationalization. More precisely, we will compare two important internationalized institutions imbued with a continuing constitutional role in both legal orders: the hybrid Constitutional Courts on the one hand, and the supervisory representative of the in-ternational community – termed High Representative in BiH and In-ternational Civilian Representative in Kosovo – on the other hand. Part V. attempts to draw some general conclusions.

Such comparisons, and evaluative assessments, pose methodological problems.11 Constitutional arrangements and their performance cannot 11 On respective problems of functionalist and contextualist comparative

methodologies, see for instance G. Frankenberg, “Critical Comparisons:


be assessed by merely looking at constitutional texts, and both may de-pend more on diverging extra-legal contexts than on legal factors. In addition, the notions of governmental effectiveness (understood as the capacity to take and implement decisions) and of “classical constitu-tionalism” offer no homogenous and precise normative frame of refer-ence. Yet, a context-sensitive comparative analysis still has the advan-tage that it highlights similarities and differences in constitutional choices, and possibly helps to identify how far these choices were de-termined by, or indeed helped change, the respective context. Moreover, comparison offers a – relative, if not absolute, and admittedly imperfect – standard for assessment. We do not intend to postulate a universally applicable normative constitutional standard, nor will we venture into a more thorough political, sociological or otherwise empirical evaluation. Instead, as comparative lawyers, we propose to pay particular attention to case law – from both Constitutional Courts and from the European Court of Human Rights. While the Constitutional Courts’ jurispru-dence might provide some indication of the practical workings and dif-ficulties of the systems, the European Court’s case law may furnish a provisional yardstick to assess the systems’ performance against what is increasingly seen as a common European constitutional standard.12

Re-thinking Comparative Law”, Harv. Int’l L. J. 26 (1985), 411 et seq.; R. Teitel, “Comparative Constitutional Law in a Global Age”, Harv. L. Rev. 117 (2003-2004), 2570 et seq.; P. Legrand, “The Same and the Different”, in: P. Legrand/ R. Munday (eds), Comparative Legal Studies: Traditions and Transitions, 2003, 240 et seq.

12 J.A. Frowein, “Der Europäische Menschenrechtsschutz als Beginn einer europäischen Verfassungsrechtsprechung”, Juristische Schulung 26 (1986), 845 et seq.; F. Hoffmeister, “Die Europäische Menschenrechtskonvention als Grundrechtsverfassung und ihre Bedeutung in Deutschland”, Der Staat 40 (2001), 349 et seq.; C. Walter, “Constitutionalizing (inter)national Gov-ernance”, GYIL 44 (2001), 170 et seq. Using the European Court of Hu-man Rights case law as a reference point is not to say, however, that such case law itself is necessarily immune to critique.


II. The Historic Context and the Internationalization of Constitution-Making in Bosnia-Herzegovina and Kosovo

Constitutionalization in BiH and Kosovo took place in specific historic and demographic circumstances. We will briefly recall this context be-fore describing the internationalized genesis of both constitutions.

1. The Historical and Ethno-Political Context

The story of ethnic conflict in Yugoslavia and of its violent break-up has been told in detail elsewhere.13 As far as constitutional history is concerned, BiH and Kosovo had formally differing constitutional statuses under the constitutional system of the Socialist Federal Repub-lic of Yugoslavia in place since 1974.14 BiH was considered as one of the constituent republics of the Federal Republic, a status which arguably included the constitutional right to secede, which Bosnia made use of in 1992. While the three main ethnic groups in BiH – Serbs, Croats and Bosniacs – were constitutionally recognized as co-nations within the Yugoslav Federation, Kosovo Albanians were accorded only the status of a “nationality”, whose ethnic kin had formed a nation state outside Yugoslavia.15 Kosovo enjoyed a somewhat lesser, but still considerable degree of self-government as an autonomous province within the Serb republic, a status which constitutionally precluded secession. In 1989/1990, a constitutional reform largely abrogated the autonomy status, and a declaration of independence by Kosovo-Albanian repre-sentatives in 1991 remained inconsequential.16

13 See, for instance, L. Sell, Slobodan Milosevic and the Destruction of Yugo-

slavia, 2002. 14 The Constitution of 1974 is reprinted in W. Simons, The Constitutions of

the Communist World, 1980, 424 et seq. For the following, see notably the preambular article I as well as arts 1 and 2.

15 T. Várady, “Minorities, Majorities, Law, and Ethnicity: Reflections of the Yugoslav Case”, HRQ 19 (1997), 9 et seq.; Marko, see note 8, at 2.1.

16 E.F. Pichl, “Kosovo in den jugoslawischen Verfassungssystemen: 1974 bis 1998”, in: J. Marko (ed.), Gordischer Knoten Kosovo/a. Eine politikwissen-schaftliche, rechtsvergleichende und völkerrechtliche Analyse des Kosovo/a-Konflikts, 2000, 75 et seq.; Sell, see note 13, 65 et seq.


The demographics of the two territories differ: according to the 1991 census, Bosnia had roughly 4.3 million inhabitants, of which 43 per cent identified as Bosniacs, 31 per cent as Serbs, 17 per cent as Croats, and nine per cent as others.17 Before the Bosnian civil war, these groups we-re dispersed over the entire territory, a situation which drastically changed during and after the war. The Dayton Agreement of 1995 split the Bosnian territory in two Entities, the Bosniac/Croat Federation of Bosnia and Herzegovina (about 51 per cent of the territory) and the Republika Srpska (49 per cent of the territory). According to a 1997 es-timation quoted by the Constitutional Court of BiH,18 the share of Serbs living in the Republika Srpska has increased from 54,3 per cent in 1991 to 96,79 per cent in 1997, whereas the number of Bosniacs de-clined from 28,77 per cent to 2,19 per cent and Croats from 9,39 per cent to 1,02 per cent and the “others” from 7,53 per cent to 0,00 per cent.

In contrast, independent Kosovo is home to a clear ethnic Albanian majority and a considerably smaller group of local Serbs and other eth-nic groups. Figures concerning current population shares in Kosovo va-ry, but range from 88-92 per cent Albanian, 5-8 per cent Serb and 4-5 per cent others, with a total population of less than two million inhabi-tants.19 Another difference is that Serbs and other ethnic minorities are less concentrated but dispersed over the territory. This is particularly true for most parts of central and south Kosovo, which holds some small enclaves of Serb populations. The exception is the district of North-Mitrovica, north of the Ibar river up to the border to Serbia,

17 Agency for Statistics of Bosnia Herzegovina, Demography, Thematic Bul-

letin 2 November 2010. As the Bosnian legislator has so far failed to adopt the necessary law to organize a new census, the numbers cited for periods after the war must be considered as estimations.

18 See U 5/ 98, Constituent Peoples, four partial Decisions of 28 and 30 Janu-ary, 18 and 19 February, 30 June and 1 July and 18 and 19 August 2000, here: 3rd Partial Decision, paras 86 and 87. All Decisions of the Court are published in English on the website of the Court, available at <http://www.ccbh.ba/eng>.

19 UNMIK/ Kosovo Ministry of Public Services, Kosovo in Figures, 2005, 9, available at <http://web.archive.org/web/20080309073836>; Statistical Of-fice of Kosovo, Series 4: Population Statistics, February 2008, 7; CIA World Factbook, Kosovo <https://www.cia.gov/library/publications/the-world-factbook/geos/kv.html>. The numbers cited here must equally be seen as estimations. The results of the 2011 census were still pending at the time of writing and already contested before publication.


which is mainly populated by Serbs.20 In terms of the historic context, Kosovo, unlike BiH, has had a strong record of continuous ethnic divi-sion, oppression and retaliation between the Albanian and Serb popula-tions ever since the Serb conquest of the territory from the Ottoman Empire in 1912.21

2. The Internationalized Genesis of the Constitutional Orders

When NATO interventions sought to bring an end to inter-ethnic vio-lence in 1995 and 1999 respectively, the hostilities had intensified ethnic divisions, and BiH and Kosovo alike represented divided societies in their most extreme form.22 The establishment of a new peaceful order was thus confronted with questions at the heart of the debate on di-vided societies in political science:23 how can the parties to a conflict be incentivized to compromise on a new constitutional order in the first place? And how can the constitution-making process be protected from capture by one particular ethnic group? In both situations, the answer to these questions was the strong involvement of the international community in the respective constitution-making processes. This exter-nal influence is captured by the notion of the “internationalized pouvoir constituant”.24 Such international involvement touches upon core areas of internal sovereignty and collective self-determination and modifies the classical liberal notion of the pouvoir constituant, which requires it to be somehow connected to, and reflect, the will of the people.25 Ex-

20 Marko, see note 8, at 2.1. 21 Ibid., at 1.1.; E. Marko-Stöckl, “Identity Formation, State- and Nation-

building in Bosnia-Herzegovina and Kosovo: On Historical Continuities and Discontinuities of Minority Conflicts in South East Europe”, in: E. Lantschner/ J. Marko/ A. Petriþušiü (eds), European Integration and Its Ef-fects on Minority Protection in South Eastern Europe, 2008, 11 et seq.

22 On the effects of war on ethnic mobilization and identity formation, see I. Macek, Sarajevo under Siege. Anthropology in Wartime, 2009.

23 Cf. Choudhry, see note 2, 20. 24 P. Dann/ Z. Al-Ali, “The Internationalized Pouvoir Constituant: Constitu-

tion-Making Under External Influence in Iraq, Sudan and East Timor”, in: A. von Bogdandy/ R. Wolfrum (eds), Max Planck UNYB 10 (2006), 423 et seq.; N. Maziau, “L’internationalisation du pouvoir constituant”, RGDIP 106 (2002), 549 et seq.

25 See, for instance, the overview by A. Kalyvas, “Popular Sovereignty, De-mocracy, and the Constituent Power”, Constellations 12 (2005), 223 et seq.;


ternal involvement may gain some functional legitimacy though, per-haps comparable to that of Constitutional Courts, if it pursues the le-gitimate aim of, for instance, mediating a compromise between conflict-ing parties, counterbalancing disproportionate factional influence and ensuring the inclusiveness and equal access to the drafting process. In addition, as has been argued elsewhere, legitimacy concerns can further be met if and when international involvement is transparent, as unob-trusive as possible, not guided by self-interest and rather concerns the process than the substance of constitution-making.26 We will see that in Kosovo these requirements were met better than in BiH, which is partly due to lessons learned, but also a result of the different military and political context.

In BiH, constitution-making occurred in the context of diplomatic peace negotiations behind closed doors, and was shaped by the immedi-ate need to end the continuing bloodshed. International involvement pursued the – surely legitimate – aim of ending the hostilities and coerc-ing the conflicting parties to compromise on a new institutional order, but was not specifically aiming at a particularly inclusive or transparent drafting process. The result was the General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP), also called the Dayton Peace Agreement (DPA), which is an international treaty supplemented by eleven27 Annexes. Annex 428 contains the constitution of BiH. It is written in English language only and its content is considered to be largely imposed by the international community.29 Despite its imposed

C. Cronin, “On the Possibility of a Democratic Constitutional Founding: Habermas and Michelman in Dialogue”, Ratio Juris 19 (2006), 343 et seq.; C. Möllers, “Pouvoir Constituant – Constitution – Constitutionalisation”, in: A. von Bogdandy/ J. Bast (eds), Principles of European Constitutional Law, 2006, 183 et seq.

26 On legitimacy considerations and (the absence of) legal requirements re-garding external involvement in constitution-making processes, see Dann/ Al-Ali, see note 24, 458 et seq.; Feldman, see note 1, 880 et seq.; S. Choudhry, “Old Imperial Dilemmas and the New Nation-Building: Con-stitutive Constitutional Politics in Multinational Polities”, Connecticut Law Review 37 (2005), 933 et seq. (936 et seq.).

27 Some authors speak of twelve Annexes see <http://www.ohr.int/dpa/de fault.asp?content_id=380>, given that Annex 1 is divided in Annex 1 A and Annex 1 B.

28 Reprinted in Steiner/ Ademovic, see note 10, 1 et seq. 29 On the genesis of the constitution and the lack of real negotiations, see

Oellers-Frahm, see note 10, 187 et seq.


nature, the Dayton Constitution largely accepted the territorial parti-tion along the frontlines of the day, which is reflected in the provisions on territorial organization and on the status of ethnic groups.30

While the Dayton Agreement deserves credit for having ended the armed conflict, its unrepresentative and intransparent genesis and its imposed nature have cast doubts on the Constitution’s internal legiti-macy. The text entered into force simply upon signature by the presi-dents of the Republics of Serbia, Croatia and BiH, i.e. two foreign offi-cials not representing those subjected to the newly established order.31 The text was never ratified nor formally approved by representatives of the entire people of BiH.32 It derives its formal validity from interna-tional law, and its legitimacy rests on the international law principle of state consent, and not on the constitutional law principle of popular sovereignty. The constituent power, incarnation and symbol of state sovereignty, has largely been transferred to the international commu-nity. This is perceived as a legitimacy deficit, which has impaired the Constitution’s ability to fulfil important constitutional functions.33 Subsequent attempts to amend the constitution and remedy its deficien-cies, as had been intended by its framers, have failed until today due to disagreements among the local mostly mono-ethnic political parties, which is the actual core of the Bosnian constitutional malaise today.34

30 E. Šarþeviü, “Völkerrechtlicher Vertrag als ‘Gestaltungsinstrument’ der

Verfassungsgebung: Das Daytoner Verfassungsexperiment mit Präzedenz-wirkung?”, AVR 39 (2001), 297 (329 et seq.).

31 Ibid., 309. 32 While the Parliament of the former Republic of BiH approved the text, it

did so without the majority required for constitutional amendments under the applicable old constitution. It was only accepted later by the respective legislative bodies of the two Entities composing the new state of BiH, the Federation of BiH and the Republika Srpska. See C. Steiner/ N. Ademovic, “Introduction: Genesis and Legitimacy of the Constitution of Bosnia and Herzegovina”, in: id., see note 10, 29 et seq.; Marko, see note 10, 8 et seq.

33 From the literature on this problem, see e.g. Steiner/ Ademovic, see note 32, 30 et seq. Šarþeviü, see note 30, 305 et seq., doubts whether it is a consti-tution at all. For a contrary view that analyses the situation as a “legal revo-lution”, see N. Maziau, “Les constitutions internationalisées. Aspects théo-riques et essai de typologie”, available at <www.unisi.it/ricerca/dip/dir_ eco/COMPARATO/maziau.doc>.

34 On the (failed) reform efforts, see J. Marko, “Constitutional Reform in Bosnia and Herzegovina 2005-06”, European Yearbook of Minority Issues 5 (2006-2007), 2008, 207 et seq.; Woelk, see note 10, 361 et seq.


If these criticisms apply to a lesser extent to Kosovo, this is first and foremost due to the different political context in which constitution-making took place. Kosovo had been placed under international territo-rial administration and military control by Security Council Resolution 1244 of 10 June 1999.35 Constitution-making occurred in several steps and mainly in the context of negotiations about Kosovo’s future status. Territorial control and the prospect of independence gave the interna-tional community considerable political leverage over both Belgrade and the Kosovo Albanian leadership. When the Constitution of the Re-public of Kosovo entered into force in June 2008, this was only the last of multiple steps in the internationalized process:36 already in 2001, the head of the UN territorial administration, the Special Representative of the Secretary General, had decreed a so-called “Constitutional Frame-work for Provisional Self-Government in Kosovo”37 on the basis of Se-curity Council Resolution 1244. The Framework created provisional institutions of self-government, including an Assembly of the Republic of Kosovo (Kosovo Assembly) as a legislative body.38 Further steps of constitution-making occurred mainly in the context of subsequent status negotiations with Belgrade, moderated by the UN special envoy Martti Ahtisaari. Kosovo Albanians were represented by a “Unity Team”, whose composition was largely determined by earlier elections held under international supervision and boycotted by Kosovo Serbs.39 The negotiations eventually failed, and Ahtisaari unilaterally submitted

35 For a comparative overview over UN territorial administration in BiH and

Kosovo, see C. Stahn, “International Territorial Administration in the for-mer Yugoslavia: Origins, Developments and Challenges ahead”, ZaöRV/ HJIL 61 (2001), 107 et seq.; J. Friedrich, “UNMIK in Kosovo: Struggling with Uncertainty”, Max Planck UNYB 9 (2005), 225 et seq.

36 For a more detailed account of the following legislative history, see Marko, see note 9, 439 et seq.; M. Riegner, “The two faces of the internationalized pouvoir constituant: Independence and constitution-making under external influence in Kosovo”, Goettingen Journal of International Law 2 (2010), 1035 et seq. (1041 et seq.).

37 UNMIK Regulation 2001/9 of 15 May 2001. 38 C. Stahn, “Constitution Without a State: Kosovo under the United Nations

Constitutional Framework for Self-Government”, LJIL 14 (2001), 531 et seq.

39 On the status negotiations, see in detail M. Weller, Contested Statehood: Kosovo’s Struggle for Independence, 2009; H. Perrit, The Road to Inde-pendence for Kosovo. A Chronicle of the Ahtisaari Plan, 2010.


the so-called “Comprehensive Settlement Proposal”40 (Ahtisaari Plan) to the UN in March 2007, recommending “supervised independence” for Kosovo. Due to disagreements with Serbia and the Russian Federa-tion, the proposal was neither included in an international treaty nor endorsed by the Security Council. It was only unilaterally accepted as binding by the Kosovo Assembly and in the Kosovo Declaration of In-dependence of 17 February 2008.41

Unlike the Dayton Agreement, the Ahtisaari Plan did not comprise a constitution as such. Rather its Annexes contained detailed procedural and substantive prescriptions for future constitution-making in an in-dependent Kosovo. These prescriptions were deeply concerned with the constitutional protection of the Serb and other minorities in the newly independent polity. The protective mechanisms were largely im-posed upon the Albanian majority, who accepted them in exchange for independence. As foreseen by the Ahtisaari Plan, the actual constitu-tional text was drafted by a constitutional commission of local repre-sentatives, supported by international advisors.42 The draft was then approved by the International Civilian Representative, who had largely replaced the Special Representative of the Secretary General, and by the Kosovo Assembly.43 The constitutional text is written in Albanian, Ser-bian and English and closely follows the substantive prescriptions in the Ahtisaari Plan, notably with regard to minority protection. As a re-sult of the entire process, the Constitution’s legitimacy is formally based on popular sovereignty and on the consent of those governed by it. International involvement pursued the legitimate aim of ensuring the inclusiveness of, and equal access to, the drafting process, in particular for the Serb minority. Influence on substance extracted far-reaching concessions regarding minority protection from the dominant Albanian majority. Hence, even though international influence was indirect and gave way to mainly local involvement towards the end, it nevertheless was – and remains – pervasive. Thus local elites still deplore a sense of lack of ownership at times, while the Serb minority living within Kos-

40 Doc. S/2007/168/Add. 1 of 26 March 2007, available at <http://www.unos

ek.org/unosek/en/statusproposal.html>. 41 On the status process and the Plan, see Marko, see note 9, 441 et seq.; Per-

rit, see note 39, 119 et seq.; Riegner, see note 36, 1044 et seq. 42 On the drafting process, see Marko, see note 9, 442 et seq.; J. Tunheim,

“Rule of Law and the Kosovo Constitution”, Minnesota Journal of Inter-national Law 18 (2009), 371 et seq. (374 et seq.).

43 Riegner, see note 36, 1048 et seq.


ovo, which already felt unrepresented by Belgrade during the status talks, largely boycotted the immediate constitution-making process and initial elections.44

The differing political contexts, namely the situation of extreme ur-gency in Bosnia, render it difficult to draw general conclusions from the comparison. For sure, it stresses the need to apply equal care not only in the drafting of substantive provisions, but also in the design and tim-ing of the constitution-making procedure. The comparison may suggest that, where feasible, a carefully sequenced, multiple step process may provide more initial legitimacy and more political space for adequate substantive constitutional choices than a one-off imposition. On the other hand, the genesis of a constitutional order – which, historically speaking, often does not satisfy the very democratic requirements it purports to establish – is only one factor in later perceptions of legiti-macy. Subsequent democratic practice under the new constitution may generate its own legitimacy, and acceptance by elites and the population also depends on the day to day performance of the new institutional order. This raises the question of how the constitutional orders of BiH and Kosovo, once established, perform in practice, notably in managing inter-ethnic relations.

III. Ethnicity in the Constitutional Orders and Constitutional Jurisprudence of Bosnia-Herzegovina and Kosovo

The constitutional orders of BiH and Kosovo both recognize ethnicity as a constitutional category and employ devices of consociational de-mocracy, power sharing and territorial autonomy to contain ethnic di-vides. Thus both represent models of “ethnic constitutionalism” and ethnically conceived nation states. Yet, the two systems put different emphasis on ethnic distinctions on the one hand and civic elements and democratic equality on the other. They provide different answers to the question of how much accommodation and how much integration of ethnic diversity is needed in divided societies.45

44 Marko, see note 9, 449 et seq. 45 On the “accommodation v. integration” debate, see J. McGarry/ B.

O’Leary/ R. Simeon, “Integration of accommodation? The Enduring De-bate in conflict regulation”, in: Choudhry, see note 7, 41 et seq.


It is important to note that the ethnicization of constitutional life is not a new phenomenon or necessarily a “western” imposition, but was already a feature of the Socialist Federal Republic of Yugoslavia’s con-stitutional order.46 The 1974 Constitution had already established a complex system of power sharing which recognized ethnically con-ceived co-nations or nationalities, and constitutional practice was in-creasingly influenced by ethnic aspects from the 1980s onwards.47 Yet, the partial continuation of these historic arrangements occurred in a radically changed context, characterized by its post-conflict nature and imposed democratic constitutionalism. This had more or less problem-atic consequences, and we will discuss three structural aspects of ethnic constitutionalism that stand out as problematic in BiH: the overempha-sis on ethnic collectives on a conceptual level, which has favoured a general ethnicization of political and constitutional life (under 1.); terri-torial organization and its segregating effects (2.); and the power sharing mechanisms within the central institutions of government, where ethnic quotas and vetoes have led to discrimination, political stalemate and go-vernmental ineffectiveness (3.). Each part first describes the constitu-tional arrangements in BiH, then discusses their practical effects and problems in light of case law, and eventually turns to the lessons learned and problems encountered in Kosovo.

1. The Conceptual Status of Ethnic Groups: Between Ethnos and Demos

One of the fundamental questions of constitutional design in divided societies is how the constitution conceptualizes the status of the ethno-cultural collectives it seeks to accommodate and integrate. Such general conceptions of ethnos or demos not only furnish the ratio for concrete institutional or territorial arrangements, but also reflect, and possibly influence, processes of collective identity formation and “nation-building”.48 In BiH, the Dayton Agreement implicitly but clearly re- 46 Cf. article 1 of the 1974 Constitution, which defines the Federation as a

“state community of voluntarily united nations and their Socialist Repub-lics.”

47 Várady, see note 15, 10 et seq.; F. Bieber, “Jugoslawien nach 1945”, His-toricum 2002/2003, 22 seq.; A. Mujkiü, “We, the Citizens of Ethnopolis”, Constellations 14 (2007), 112 et seq.; Marko, see note 8, at 2.1.

48 See on the aspect of national identity formation von Bogdandy et al., see note 1, 599 et seq.; R. Utz, “Nations, Nation-Building, and Cultural Inter-


jects the concept of a single nation state as well as the approach of “mi-nority protection”, when it concludes the preamble of the Constitution by the formula: “Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as fol-lows”. The – completely fictive49 – constituent power mentioned in this provision are the three ethnic groups, the “Others” being put into brackets in their quality as both constituent peoples and citizens.50 Ac-cording to this provision, the Bosnian state is first of all composed by the constituent peoples and only secondly by the citizens. In other words, the group aspect with its collective dimension seems more im-portant than the individual rights of citizenship. Indeed, citizens appear not only as a secondary category in the preamble, but possess two po-litical identities: the Constitution institutes an Entity citizenship, from which national citizenship is derived (article I-7).51 Citizenship remains in a transitional situation, which differs from the concept in classical constitutionalism based on the “abstract” citizen and his or her identifi-cation with the political unity of the people of the state. In contrast, the ethnic elements in the Bosnian Constitution reflect, but also contribute to the fact that considerable segments of the political elites and of the population conceive of themselves as members of ethno-religious com-munities and not of a collective of citizens.52 Combined with premature democratic elections, these identity politics have repeatedly brought radical and ethnically oriented political parties into power.53 This has intensified the ethnic divide, which pervaded not only the constitu-

vention: A Social Science Perspective”, in: von Bogdandy/ Wolfrum, ibid., 615 et seq. Foundational: B. Anderson, Imagined Communities, 1983.

49 Maziau, see note 24, 568 et seq. 50 Šarþeviü, see note 30, 308. 51 Cf. the similar article 249 of the 1974 SFRY Constitution, which recognizes

simultaneously a single citizenship of the SFRY and the citizenship in the different Republics.

52 Stahn, see note 10, 397; G. Haller, “‘Individualisierung’ der Menschen-rechte? Die kollektive – demokratische – Dimension der Menschenrechte und ihre Bedeutung für Integrationsprozesse, illustriert durch das Beispiel des State-Building in Bosnien und Herzegowina”, Zeitschrift für Rechts-soziologie 31 (2010), 123 et seq. (124).

53 On the issue of elections, see R. Belloni, “Peacebuilding and consociational electoral engineering in Bosnia and Herzegovina”, International Peace-keeping 11 (2004), 334 et seq.


tional life of the central state, but was also reflected in the constitutions enacted in the Entities, and in legislation on the local level.

As a result, the High Representative established by the international community has repeatedly used his para-constitutional powers to re-move radicals from public office, and the Constitutional Court of BiH has been confronted with the consequences of ethnicization in numer-ous proceedings. The landmark ruling on ethnicity is the “Constituent Peoples” case of 2000.54 Here, the Court was confronted with the basic question of what status the constituent peoples had within the two En-tities. The Court concluded that the Entities were not to be equated with the territory of a particular constituent people, and that the three constituent peoples enjoyed equal collective rights in both Entities.55 The two sub-state Constitutions, which the two Entities had enacted, had cast doubt on the equal status of the ethnicities by privileging the Serb population in the Republika Srpska and, respectively, Croats and Bosniacs in the Federation of BiH. The Constitutional Court invali-dated numerous provisions in both Entity constitutions regarding, for instance, privileges of constituent peoples and the use of languages.

The Court derives most of its conclusions from the principle of equality of the constituent peoples,56 and thus bases them on a collec-tivist and ethnic logic. But at the same time, the Court introduces a civic and individualist element in its reasoning by constructing a strong link between the equality of constituent peoples on the one hand and the principle of a democratic multi-ethnic state on the other hand. This principle, proclaimed in the preamble and article I-2, rests on the idea of a pluralist society57 and on the general equality principle.58 The Court employs expressions such as “compromise formula” or “balance” in order to make clear that ethnic power sharing and collective equality

54 U 5/ 98, Constituent Peoples, four partial Decisions, see note 18. 55 For discussions of the case, see C. Stahn, “Die verfassungsrechtliche Pflicht

zur Gleichstellung der drei ethnischen Volksgruppen in den bosnischen Teilrepubliken – Neue Hoffnung für das Friedensmodell von Dayton?”, ZaöRV/ HJIL 60 (2000), 663 et seq.; N. Maziau, “Le contrôle de constitu-tionnalité des Constitutions de Bosnie-Herzégovine”, Revue Française de Droit Constitutionnel 45 (2001), 195 et seq.

56 Cf. for a similar logic article 245 of the 1974 Constitution of the SFRY, which recognizes the equality of nationalities and nations within the state.

57 Line 3 of the Preamble. See C. Grewe, “Peace in pluralism through democ-racy and fair procedures”, in: Steiner/ Ademovic, see note 10, 44 et seq.

58 Line 1 of the Preamble.


must be balanced with individual equality, civic voting rights and politi-cal majority. In the Court’s conception, constitutional rules and princi-ples based on ethnic affiliation must be seen as an exception explicitly authorized by the Constitution. Consequently, they must be inter-preted in a narrow way, and they are by no means a general organiza-tional model for the state, the Entities or the local level.59 Insofar, the constitutional principles of a multi-ethnic democratic state and of a plu-ralist society embody traditional elements of liberal constitutionalism and individual rights protection in the nation state and reflect political scientist “integrationism”. In contrast, the constituent peoples represent collective rights and power sharing in a post-conflict and post-national consociational democracy or “accommodationism”.60

While the Constitutional Court certainly wished to balance ethnic and civic elements in the “Constituent Peoples” case in 2000, subse-quent developments cast doubt on the success of this jurisprudence. The principle of equality of the constituent peoples could not prevent the increasing ethnic homogenization of the Entities, and in some in-stances the constitutional jurisprudence even favoured the generaliza-tion of ethnic representation at all levels of the state and in most fields of the public sphere.61 In subsequent case law, the Court invalidated the municipal statute of the city of Sarajevo for the reason that it conferred privileges, such as a guaranteed minimum representation, only to some and not to all constituent peoples.62 In other instances, the Court had to annul Entity coats of arms, hymns and flags, which constitute impor-tant symbolizations of collective identity, because they did not repre-sent all ethnic groups.63 In order to remedy such disintegrative identity politics, the Court had to go as far as to provisionally change the ethni-cally coloured names of towns and municipalities, which it considered inconsistent with the Constitution.64 While the same results could have been achieved by reference to individual rights and equality of citizens, the Court largely stuck to the logic of collective equality. In sum, the

59 U 5/ 98, 3rd Partial Decision, see note 18, para. 68. See also C. Steiner/ N.

Ademovic, “Preamble”, in: id., see note 10, 61 et seq. 60 Cf. on accommodation and integration Choudhry, see note 2, 26 et seq. 61 Grewe, see note 10, 329 et seq. 62 U 4/ 05, Statute of the City of Sarajevo, Decision of 22 April 2005. 63 U 4/ 04, two Partial Decisions of 31 March and 18 November 2006 on

Flags, Coats of Arms and Anthems of the Entities as well as on Official Holidays.

64 U 44/ 01, Names of Towns, Decision of 27 February 2004.


integrative potential and argumentative reservoir contained in the con-stitutional provisions on citizenship, individual rights and non-discrimination remained dormant.65

The defects of constitutional design and practice in BiH had become all too obvious by the time constitution-makers started drafting the Constitution of the Republic of Kosovo in 2007. Indeed, the constitu-tional text seems to react in many ways to the Bosnian experience, but also reflects the differing political and demographic context as outlined above:66 the leverage of international actors, as well as the existence of one dominant Albanian ethnic group, enabled different constitutional choices than might have been possible in Dayton. Most of these choices regarding ethnicity were preconfigured by the Ahtisaari Plan, which in turn had been influenced by the standards established in and under the Constitutional Framework. Finally, the constitutional reform process in Macedonia had in the meantime furnished practical experience with more successful configurations of ethnic constitutionalism.67

As a result, the Kosovo Constitution conceptualizes the status of ethnic groups rather differently than the Dayton Agreement: first of all, the preamble of the Kosovo Constitution recognizes only one “people of Kosovo”, which comprises all ethnic groups. Consequently, article 14 institutes a single citizenship of the Republic of Kosovo, and no “en-tity citizenship” like in Bosnia. The Law on Citizenship equally reflects an inclusive agenda.68 These provisions clearly strengthen the civic con-ception of constitutionalism and represent a stronger counterbalance to the ethnic elements equally contained in the Constitution.69 The fun-damental norm on the conception of ethnicity is contained in article 3, which elevates the empirical ethnic diversity to a normative structural

65 Similarly Stahn, see note 55, 689 et seq. 66 At II. 1 and II. 2. 67 Marko, see note 9, 438, 450. For details on the Macedonian compromise,

see U. Brunnbauer, “The Implementation of the Ohrid Agreement: Ethnic Macedonian Resentments”, Journal on Ethnopolitics and Minority Issues in Europe 1 (2002), 1 et seq.; J. Marko, “The Referendum on Decentralization in Macedonia 2004: A Litmus Test for Macedonia’s Interethnic Relations”, European Yearbook of Minority Issues 4 (2004-2005), 695 et seq.

68 D. Doli, “The Concept of Citizenship Through Time: Approaching the In-clusiveness and Equality. The Case of Kosovo Law on Citizenship”, Con-temporary Issues in Law 10 (2010), 205 et seq.

69 Cf. Marko, see note 10, 443.


principle of the Constitution:70 “The Republic of Kosovo is a multi-ethnic society consisting of Albanian and other Communities, governed democratically with full respect for the rule of law through its legisla-tive, executive and judicial institutions.”

The principle implies the recognition of ethnic groups as relevant constitutional categories and serves to legitimize a range of collective ethnic privileges and affirmative action provisions contained in the fol-lowing provisions. It thus goes beyond the general equality principle (article 24) and the general principle of pluralism in the list of constitu-tional values (article 7). The different aspects of the multi-ethnicity principle are fleshed out in the provisions on state organization and the institutional order71 and on individual rights, which include inter alia the direct application of international human rights and minority pro-tection instruments.72 In addition, Chapter III on the “Rights of Com-munities and their Members”, which implements Annex II of the Ahti-saari Plan, contains a number of objective affirmative action obligations on the part of the state (article 58) as well as individual and collective entitlements with regard to e.g. language, education and the media (li-sted in article 59), requires equitable representation in the public service (article 61) and institutes organizational and procedural protection mechanisms (arts 60 and 61), without, however, instituting fixed quo-tas.73

Constitutional and official terminology avoids both the notions of “constituent people” and “minority”, but instead employs the term “community”. The Constitution defines the notion as “[i]nhabitants belonging to the same national or ethnic, linguistic, or religious group traditionally present on the territory of the Republic of Kosovo ... ”, but “every member of a community shall have the right to freely choose to be treated or not to be treated as such” (article 57 paras 1 and 2), thus adopting a more liberal and subjective approach. In practice, the respec-tive protective mechanisms are geared first and foremost towards the small Serb population, which has become an overall minority in Kos-ovo but remains the majority in some municipalities. Besides, the mechanisms are also being used by the Turkish, Roma or Gorani popu-

70 In a similar vein Doli/ Korenica, Calling Kosovo’s Constitution, see note 9,

62. 71 See below, III. 2 and 3. 72 See below, IV. 1.c. 73 See also below, III. 2. and III. 3., IV. 1.b.


lations, and the Law on Communities74 clarifies that if the majority Al-banian community is in the minority in a particular municipality, it shall also enjoy specific entitlements derived from the multi-ethnicity principle.75

From a normative perspective, the principle as such seems ambiva-lent. On the one hand, it implicitly considers ethnic communities as constituent elements of the entire society, but does not accord major groups the status of equal co-nations as in Bosnia. Rather the particular mention of the Albanian community, and the relegation of non-Albanian groups to the status of “Others”, might be regarded as having an unnecessarily dominating and divisive undertone. On the other hand, the principle characterizes the entire state and society as multi-ethnic, thereby suggesting one possible element of an overarching common national identity based on the integration of ethnic diversity. It will depend on constitutional practice which of the two elements shapes national and local politics as well as societal relations more in-tensely. To date, a truly multi-ethnic state and identity remain more a normative vision than a social reality.76

This ambivalence is reflected in the early case law of the newly es-tablished, internationalized Constitutional Court of Kosovo, which started operating in September 2009.77 It was confronted for the first time with inter-ethnic conflicts in the highly publicized “Prizren Em-blem” case78 and has started to flesh out its approach to multi-ethnicity in its Judgment of 18 March 2010.79 In the much discussed ruling, the Court banned the coat of arms introduced by the municipality of Priz-

74 Law No. 03/L-047 on the Protection and Promotion of the Rights of

Communities and their Members, 13 March 2008. 75 Cf. on this aspect Weller, note 9, 499 et seq. 76 Marko, see note 8. See below, III. 2. and III. 3. for detailed assessments of

the practical working of the ethnic aspects in the Kosovar constitutional system.

77 For a detailed analysis of the Court, see below, IV. 1. The Decisions of the Court are available also in English language on the Court’s website at <www.gjk-ks.org>.

78 Case No. KO 01/ 09, Cemailj Kurtisi v. The Municipal Assembly of Priz-ren, Judgment of 18 March 2010, available in English at <http://www.gjk-ks.org/repository/docs/ko_01_09_Ven_ang.pdf>.

79 For a discussion of the case, see Riegner, see note 9, 564 et seq. See also Doli/ Korenica, Calling Kosovo’s Constitution, see note 9, 64.


ren because it violated the constitutional guarantees of multi-ethnicity.80 The emblem had been pushed through by the Albanian majority in the city council and displayed the building of the “League of Prizren” and the number 1878. This referred to the birthplace and -year of the mod-ern Albanian nationalist movement, which originated in Prizren. The provocative symbolism was challenged by members of the local minor-ity communities living in and around Prizren,81 which is traditionally multi-ethnic and home not only to a Serb, but also Turkish, Gorani and other minorities.

The Constitutional Court followed the applicant’s arguments and held that the symbol violated the structural principle of multi-ethnicity in article 3, the catalogue of constitutional values, including pluralism, in article 7, and norms on individual and collective participation rights and identity protection (arts 57 para. 3, 58 para. 4, 59, 124 para. 1).82 The Court stressed the importance of symbols for collective identity formation – “symbols are not pure images and decorations”, “[they] have an influence on assembling and joining in one idea”83 – and con-cludes “[T]he emblem of the Municipality ought to be a symbol of all the citizens and should reflect the multiethnic nature of the Municipal-ity.”84 The Court attached two legal consequences to these findings: firstly, it banned the use of the emblem; secondly, it ordered the mu-nicipal council to adopt a new multi-ethnic symbol within three months. While the first part has met with wide support and proved to be enforceable – the emblems are not in official use any more –, the sec-ond part has raised concerns regarding the separation of powers, ex-pressed in a separate opinion by an international judge,85 and has met enforcement problems.86 The deadline had to be extended,87 as the 80 According to the explicit provisions in arts 113 para. 2 (2) and 62 para. 4 of

the Constitution, municipal statutes are subject to review by the Constitu-tional Court.

81 Case No. KO 01/ 09, see note 78, para. 12: “The emblem, [the applicant] says, does not transmit a message of multi-ethnicity in the very multiethnic area that is the Municipality of Prizren.”

82 Ibid., para. 32. 83 Ibid., para. 44. 84 Ibid., para. 46. 85 Concurring Opinion of Judge Almiro Rodrigues, Judgment in the Case

No. KO 01/ 09, available at <http://www.gjkks.org/repository/docs/ko_01 _09_mend_ang.pdf>.

86 On the general problem of the execution of constitutional court rulings, see European Commission for Democracy through Law (Venice Commission),


Court was unable to force a political majority in the city council to adopt a new emblem.

In conclusion, the decision solicits two remarks: firstly, the case il-lustrates that constitutional law and the Constitutional Court in Kos-ovo, supported as elements of state building by the international com-munity, are able to effectively determine negatively which forms of ma-jority government are inconsistent with minority protection and non-discrimination principles. They experience much more difficulty, how-ever, when engaging in positive measures of identity construction, and thus “nation” building, which largely remains the domain of democratic and inclusive politics.88 The second remark regards the Court’s reason-ing, which seems to oscillate between ethnic collectivist and civic con-ceptions of equality – the Court quotes almost all relevant constitu-tional provisions, and refers to both “citizens” and “communities” in its argument. The experiences of the Bosnian Constitutional Court cer-tainly call for a careful balancing of both aspects. In the long run, indi-vidual equality of citizens and the value of pluralism enshrined in the Constitution might prove to hold an even more convincing and integra-tive argumentative reservoir than the concept of multi-ethnicity.

2. Territorial Organization: Local Self-Determination or Ethnic Segregation?

Territorial autonomy and federalism are classical organizational princi-ples for divided societies.89 They may satisfy self-determination de-mands on a local level and create a sense of security for particular groups. If misused, however, they may contribute to ethnic segregation and disintegration. In this regard, the Bosnian Constitution opts for a decentralized state structure, which does not explicitly link territorial

Decisions of Constitutional Courts and Equivalent Bodies and Their Exe-cution, Report adopted by the Commission at its 46th Plenary Mtg at 17 May 2001, CDL-INF (2001) 9, available at <http://www.venice.coe.int/ docs/2001/CDL-INF(2001)009-e.asp>.

87 Constitutional Court of Kosovo, Order of 21 June 2010, Case No. KO 01/ 09, Cemailj Kurtisi v. The Municipal Assembly of Prizren, available at <http://www.gjk-ks.org/repository/docs/case_no_ko_%2001_09,.pdf>.

88 Riegner, see note 9, 567 et seq. 89 From the extensive literature, see the overview by J.A. Frowein/ R. Bank,

“The Participation of Minorities in Decision-Making Processes”, ZaöRV/ HJIL 61 (2001), 1 et seq. (18 et seq.).


organization and ethnicity. However, the fact is that the constitutional system, as it stands, almost unavoidably leads to a close and problem-atic interconnection of territoriality and ethnicity. The Dayton Agree-ment provides for a strong vertical separation of powers, the state being composed of two Entities: the rather centralized Republika Srpska and the strongly decentralized Federation of Bosnia and Herzegovina.90 The Bosnians prefer to qualify this organization as a “complex” rather than a “federal” state, perhaps because this system is in some respects closer to a confederation than to federalism.91 This is evidenced by the distribution of competencies between the central state and the Entities. It is not only based on a general clause attributing powers, as a matter of principle, to the Entities (article III-3a)), but also restricts the compe-tencies enumeratively assigned to the central level to a bare minimum (article III-1). As a result, the Entities are competent in matters of po-lice, taxes, criminal and civil law, judiciary and property, and the central state remains weak and dependent on the Entities in formulating, exe-cuting and financing its policies. The still dominant position of the En-tities is reinforced by the electoral system. Central institutions are elected by or within the Entities, so that all state power emanates from the Entities.92 This creates a problematic link between ethnic quotas on the central level and territoriality, discussed below.93

As has been pointed out above, these constitutional choices were a concession to the military situation of the day and part of the peace bargain. They also intended to rebuild trust between the conflicting parties through a strong vertical separation of powers and guaranteed ethnic representation. However, this set-up meant that in constitutional practice power has largely been concentrated in the hands of decentral-ized and increasingly ethnically homogenized governmental units. Po-litical parties rarely extend beyond one Entity and are mostly formed 90 In addition, the district of Brcko enjoys a special status as a “single admin-

istrative unit of local self-government existing under the sovereignty of Bosnia and Herzegovina” (article 1, Statute of 7 December 1999), available at <http://www.ohr.int/ohr-offices/brcko/default.asp?content_id=5367>.

91 F. Bieber, “Governing Post-War Bosnia-Herzegovina”, in: K. Gál (ed.), Minority Governance in Europe, 2002, 321 et seq. (326); Stahn, see note 10, 393; Woelk, see note 10, 356. This mirrors the increasing decentralisation of the SFRY, especially the distribution of competencies in the 1974 Constitu-tion.

92 On this point the similarity to the 1974 SFRY Constitution is also exten-sive: see for instance arts 284 and 321.

93 At III. 3.


along ethnic lines. The entire system has contributed to the ethnic ho-mogenization of the Entities, favoured political disintegration, compli-cated compromising in central institutions, and damaged the effective-ness of the central government.94 The Constitution foresees mecha-nisms to partly remedy the weakness of central institutions, as it enables the Entities to transfer responsibilities to the central state (article III-5), but local political actors were unable to agree on such reforms. As a re-sult, the responsibility was largely transferred to the international insti-tutions. Hence it was mainly the High Representative who used his overriding legislative powers to transfer competencies from the Entities to the central level. For instance, he established a Central State Court, a demarche challenged before, but accepted by, the Constitutional Court.95 The Court itself found in the “Constituent Peoples” case that the central level disposed of certain implied powers, notably to imple-ment human rights provisions in the Constitution.96 Generally speak-ing, such international influence has, however, not been able to over-come territorial segregation.

In light of these experiences and its different context, the Kosovo Constitution attempts to institute a stronger central government and to separate territoriality and ethnicity, at least on a normative level. Kos-ovo’s territorial organization is not federal, but unitary, with only two levels of governance: central institutions and municipalities. The Con-stitution concentrates most competences on the central level, but also contains a guarantee for local self-government (arts 123-124). Munici-palities have standing in the Constitutional Court to contest the consti-tutionality of laws or acts of central institutions which curtail their right to local self-government (article 113 para. 4). This right is concretised by a range of exclusive statutory powers in important fields such as educational and social services and local planning.97 These constitu-tional choices reflect the different demographics as well as the fact that the Constitution did not have to consolidate military losses and gains, due to international administration. Strong central institutions promise 94 Marko, see note 10, 6; M. Zivanovic, “Lessons (not) learned with regard to

Human Rights and Democracy: The case study of Bosnia-Herzegovina”, in: W. Benedek (ed.), Lessons (not) learned with regard to Human Rights and Democracy. A Comparison of Bosnia and Herzegovina, Kosovo and Macedonia, 2010, 30 seq.

95 Cf. Stahn, see note 10, 398 et seq. 96 Cf. Marko, see note 10, 28. 97 Law on Local Self-Government Nr. 03/L-040 of 20 February 2008. See also

Marko, see note 8, at 2.2.


more efficient government and seem to be more appropriate to a coun-try of the size of Kosovo. Yet, local self-government in Serb territorial strongholds has become a source of concern. Due to Belgrade’s insis-tence, territorial re-organization resulted in a number of municipalities with a Serb majority population.98 In addition, the implementing legis-lation institutes an asymmetric system of local government: it grants designated municipalities with a Kosovo Serb majority population en-hanced competences in health, educational, cultural and police matters, as well as the right to inter-communal and cross-border cooperation.99 These privileges allow Serb municipalities to create a functional equiva-lent to territorial autonomy and open the door for continued influence from Belgrade. Parallel institutions supported by Belgrade continue to operate notably in Serb dominated North Mitrovica, where they fulfil governmental functions and intensify the ethnic territorial divide. The area thus remains under a sort of “dual sovereignty.”100

The Constitutional Court in Kosovo has yet to hand down deci-sions in this respect, but constitutional problems emerge already. The meagre text of arts 123-124 gives little guidance on how much self-government Serb municipalities enjoy under the Constitution. The con-stitutional guarantee is largely fleshed out by ordinary legislation, and the Constitutional Court will have to develop its own constitutional notion of local self-government.101 More importantly, the central gov-ernment’s partial lack of control over its territory has led, for instance, to massive backlogs of cases in certain municipal and district courts, which call into question access to justice, the right to an effective rem-edy and the right to trial within a reasonable time.102 Finally, dual sov-ereignty over Northern Kosovo as such is irreconcilable with the claim to normative validity and practical effectiveness of the Kosovo Consti-tution and remains a continuous source of ethnic tension. These devel- 98 Ibid., at 2.2.; International Crisis Group, Serb Integration in Kosovo: Tak-

ing the Plunge, Europe Report No. 200, 12 May 2009. 99 Cf. Marko, see note 8, at 2.2, with further references on the respective legis-

lation. 100 International Crisis Group, North Kosovo: Dual Sovereignty in Practice,

Europe Report No. 211, 14 March 2011. 101 On the similar situation in Germany and respective case law of the German

Constitutional Court, see e.g. E. Schmidt-Aßmann, “The Constitution and the Requirements of Local Autonomy”, in: C. Starck (ed.), New Chal-lenges to the German Basic Law, 1991, 167 et seq.

102 International Crisis Group, The Rule of Law in Independent Kosovo, Europe Report No. 204, 19 May 2010.


opments illustrate that de-linking territoriality and ethnicity on the constitutional level is problematic in the absence of effective central in-stitutions which are able and, in the case of the international commu-nity, willing to actually enforce this constitutional choice. As a result, the “better” normative solution may in actual fact lead to a more sig-nificant divergence of normative order and social reality and thereby undermine the legitimacy of the entire constitutional order.

3. Ethnic Quotas and Vetoes: Balancing Protection and Participation with Democratic Equality and Majority Rule

Another classical element of power sharing in consociational democ-racy is the introduction of guaranteed representation, namely through quotas and reserved posts within state organs. They are means to ensure the participation of all ethnic groups and to protect their interests in legislative and executive decision-making. In BiH, the Dayton Consti-tution institutes a system of ethnic quotas in the central government, which ensures equal representation for all three constituent peoples ir-respective of their population share and election results. The executive is composed of the Council of Ministers and the three-member Presi-dency. The central legislature consists of two parliamentary chambers, the House of Representatives and the House of Peoples. The system is truly bicameral, as legislation must be passed by both houses (article IV). The House of Representatives is elected in entitywide polls, and the Constitution does not institute quotas but only stipulates that 28 members have to be elected in the Federation and 14 in the Republika Srpska. In contrast, the members of the Presidency (article V-1) and the 15 delegates in the House of Peoples (article IV-1) are elected by the legislative bodies of the Entities and are subject to ethnic quotas. The Constitution not only stipulates that five of the 15 members of the House of Peoples are elected within the Republika Srpska and ten within the Federation, it also requires that the delegates from the Re-publika Srpska must all be Serbs, and that those from the Federation must be five Croats and five Bosniacs (article IV-1). Similarly, the three-member Presidency must consist of one Bosniac and one Croat, each elected from the territory of the Federation, and one Serb elected from the territory of the Republika Srpska (article V chapeau and article V-1).

Ethnic quotas and guaranteed minimum representation modify principles of democratic equality, as some groups gain a disproportion-ate influence on the composition of state organs. Yet, in many consocia-


tional democracies, quotas are seen as legitimate modifications of de-mocratic equality and considered to be justified by the need to protect minorities and to ensure their participation and integration in political life.103 However, the specific interconnection of territoriality and eth-nicity in BiH raises serious normative problems with regard to the pas-sive right to vote and democratic equality. The election rules concerning the House of Peoples and the Presidency imply that a “wrong resi-dence” can deprive the members of the constituent peoples of their right to stand for elections: a Croat or Bosniac resident in the Repub-lika Srpska cannot be elected to the House of Peoples or to the Presi-dency, and vice versa. In addition, the quota system means that those who do not identify themselves as a member of one constituent people cannot be elected at all to either organ.104

These problematic arrangements have been contested several times before the Constitutional Court of BiH and eventually before the European Court of Human Rights.105 The Constitutional Court re-jected the complaints essentially for reasons of normative hierarchy:106 the rules challenged in the applications are contained in the Constitu-tion itself, and cannot therefore violate guarantees of non-discrimination and equality in the very same text. In addition, the Court refused to confer a supra-constitutional rank to guarantees of equality derived from the European Convention on Human Rights (ECHR) and its Protocols, which, by virtue of article II-2 of the Con-stitution, are directly applicable within BiH and “have priority over all other law”, but do not, in the Court’s view, trump other constitutional provisions on the composition of state organs.107 The European Court of Human Rights did not face such problems of hierarchy: in the land-

103 See e.g. Frowein/ Bank, see note 89, 5 et seq. 104 Stahn, see note 10, 395; Woelk, see note 10, 363 et seq.; Grewe, see note 10,

329 et seq. 105 For a discussion of this case law, see the comment by M. Milanoviü in AJIL

104 (2010), 636 et seq. 106 AP 35/ 03, Elections to the House of Peoples of 28 January 2005, Dissent-

ing Opinion Judge Grewe; U 5/ 04, Elections to the Presidency and the House of Peoples of 31 March 2006; U 13/ 05, Electoral Law of 26 May 2006, Dissenting Opinions of Judges Feldmann, Palavric and Grewe. See also Milanoviü, see note 105, 639 et seq.

107 On the hierarchy question, see below, IV. 1.c.


mark Sejdiü and Finci case108 handed down in 2009, the Grand Cham-ber ruled on an application by Bosnian citizens who identified them-selves as members of the Jewish and Roma communities and were therefore totally excluded from the House of Peoples and the Presi-dency. The applicants relied on the prohibition of discrimination in ar-ticle 14 ECHR in conjunction with article 3 of Protocol 1, which guar-antees free elections to the legislature. The second basis was the general prohibition on discrimination in article 1 of Protocol 12, which also ap-plies to access to executive office. The Court held that the exclusion of non-constituent peoples indeed amounted to a violation of these stan-dards. It did not accept the argument that the restoration of peace still justified these specific power sharing arrangements more than a decade after the civil war ended.109

The Court does not elaborate systematically on potential standards of justification, and does not provide any guidance on the more general question what factual circumstances of dividedness may justify diver-sions from democratic equality. Thus the associated problem of democ-ratic inequality caused by quotas and the linking of ethnicity and terri-toriality remains unaddressed. In any event, the Court’s final conclu-sion is surely warranted by the situation on the ground in BiH, where elements of the present constitutional set-up precisely reinforce segre-gation instead of facilitating integration. It seems to be the first time that the European Court of Human Rights declares a constitutional provision of a state party to be in violation of the Convention, and it underlines that the margin of appreciation, which the Court generally leaves to states in electoral matters, is limited when it comes to dis-crimination on ethnic grounds. From a constitutionalist point of view, the ruling stresses that power sharing in divided societies does not jus-tify any deviation from principles of democratic equality, but that ac-ceptable forms of consociational democracy require a careful balancing of the rights of all, and not just some, communities.

These problematic effects of ethnic quotas are further exacerbated by the fact that the Dayton Constitution combines them with another classical element of power sharing: ethnic veto rights in legislative and executive decision making. These rules ensure that the representatives of each constituent people can block legislation they consider destruc-

108 European Court of Human Rights, Grand Chamber, Sejdiü and Finci v.

Bosnia and Herzegovina, Application Nos. 27996/06 and 34836/06, Judg-ment of 22 December 2009.

109 In the same vein, Milanoviü, see note 105, 638.


tive of the “vital interest” of their ethnic group. In principle, both the House of Representatives and the House of Peoples adopt legislation by simple majority. However, a proposed decision of the Parliamentary Assembly may be declared to be destructive of a vital interest of a con-stituent people by a majority of the Bosniac, Croat, or Serb Delegates in the House of Peoples. The invocation of the vital interest veto generally results in the convocation of a joint parliamentary commission, and, in case of continuing disagreement, in the referral of the matter to the Constitutional Court for review of “procedural regularity” (article IV-3 e) and f)). In addition, slightly different vital interest vetoes are operated in the House of Representatives (article IV-3 d)), and in the Presidency, where each single member can essentially block executive decision-making (article V-2 d)).

The combination of ethnic quotas and ethnic vetoes has several problematic effects. Firstly, constitutional practice has largely turned the House of Peoples into an organ of veto exercise, and excessive invo-cation of the vital interest veto has disabled legislative decision making to a considerable extent and further contributed to political inaction and governmental ineffectiveness.110 Moreover, the excessive veto use cements minority rule over a majority of citizens. It also intensifies dis-crimination of “Others”, whose parliamentarians in the House of Rep-resentatives do not dispose of a veto of their own. Finally, most dis-putes on the veto exercise end up in the Constitutional Court. As the Venice Commission has remarked, “it seems inappropriate to leave such a task with major political implications to the Court alone without pro-viding it with guidance in the text of the BiH Constitution.”111

In practice, institutional efficiency and the resolution of political sta-lemates also depend on how the Constitutional Court interprets its function to review the “procedural regularity” of the veto exercise. In its case law, the Court has adopted a double strategy to control the use of vetoes. Firstly, it interpreted its competence to review the “proce- 110 Woelk, see note 10, 355; Stahn, see note 10, 398. However, Bieber, see note

91, 328, considers that power sharing is not the main reason for the ineffi-ciency of the decision making process, but rather the prevailing of the En-tity interests and the interventions of the international community. With regard to constitutional history, it seems noteworthy that under the 1974 SFRY Constitution, the veto rights were generalized as well and have in practice contributed to increasingly immobilizing the central institutions.

111 Venice Commission, Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, CDL-AD (2005) 004, para. 32.


dural regularity” broadly to encompass the power to examine whether the proposed legislation’s substance was truly “destructive of the vital interest”. Secondly, it applied an interpretation to the notion of “vital interest” and “destructiveness” which tends to favour the integration and reconciliation of the ethnic groups.112 It held that “the effective par-ticipation of constituent peoples in the processes of political decision-making and prevention of absolute domination of one people by the others represent the vital interests of each constituent people.”113 It fur-ther concluded, for instance, that the official use of a language114 or the return of refugees115 was in the vital interest of all constituent peoples, and thus held that legislation introducing high hurdles to the restitution of property was destructive of the latter interest. Even though the Court’s case law has somewhat contributed to the resolution of block-ages, it was unable to actively remedy legislative omissions and inaction. Instead, the High Representative extensively used his legislative powers to enact badly needed legislation, which has generally had a positive ef-fect on the regulative framework and on the functioning of public ad-ministration,116 but has caused other problems discussed below.117 Eventually, only a constitutional reform will remedy the situation. For instance, the Venice Commission has rightly proposed to strengthen the position of the House of Representatives and of the Council of Minis-ters at the expense of the Presidency and the House of Peoples.118

112 On the case law regarding vetoes, see R. Bainter/ E. d’Aoust, “Article 4”,

in: Steiner/ Ademovic, see note 10, 629 et seq. 113 U 10/ 05, Vital Interest of the Croat People concerning the Law on Public

Broadcasting System, Decision of 22 July 2005, para. 25, but in the case at hand, the Court considered that there was no violation of the vital interest of the Croat people, as well as in case U 7/ 06, concerning the Croat De-fense Council, Decision of 31 March 2006, the destruction of the vital in-terest of the Bosniac people has not been recognized.

114 Ibid., para. 28. 115 U 2/ 04 Bosniac Caucus, Vital Interest concerning the Amendments to

Property Law, Decision of 28 May 2004. Similarly, in Case U 8/ 04 of 25 June 2004, the Court found the framework law on higher education to be destructive for the vital interest of the Croat people.

116 Stahn, see note 10, 398. 117 See on the High Representative in detail below, IV. 2. 118 Venice Commission, see note 111. See also R. Kocjanþiþ, “Die Verfassungs-

reform in Bosnien und Herzegowina”, Zeitschrift für öffentliches Recht 62 (2007), 439.


However, reform efforts have failed so far due to a lack of consensus among the largely ethnically oriented political parties and elites.

The institutional arrangements in Kosovo follow a more classical separation of powers along the lines of a mixed parliamentary and con-sociational democracy. The legislative branch consists of the unicameral Kosovo Assembly, which essentially elects both the single President and the Prime Minister.119 Ethnicity is incorporated through a complex system of guaranteed representation, applicable to all three branches of government, and double-majority requirements, confined to the legisla-ture. While ethnic quotas apply to all branches of the central govern-ment, they are not constitutionally linked to territoriality. The Kosovo Constitution thus avoids the failures of the Bosnian model and draws on the more positive experiences with the so-called Badinter Formula underlying the Macedonian Constitution since the Ohrid Agreement of 2001.120

More precisely, of the Kosovo Assembly’s 120 seats, 20 “are guaran-teed for representation of communities that are not in the majority in Kosovo” (article 64 para. 2). Of these 20 seats, ten are reserved for the Kosovo Serb community and ten for the remaining communities (one each for the Roma, Ashkali and Egyptian communities, and one addi-tional seat awarded to either the Roma, the Ashkali or the Egyptian community with the highest overall votes, three for Bosnians, two for Turkish and one for Goranis, arts 64 para. 2, 148 para. 1). Guaranteed representation rules apply to community participation in the executive on cabinet level121 and within the judiciary122 as well as on the munici-

119 See in more detail on the parliamentary system of government Marko, see

note 9, 444. 120 Marko, see note 9, 438, 450. 121 Cf. article 96 paras 3 and 4: at least one Serb and one other minority minis-

ter, and at least two deputy ministers each. See further on these provisions and their potential effect on the building of grand coalitions as typical ele-ments of consociational democracy, Doli/ Korenica, What about Kosovo’s Constitution, see note 9, 64.

122 Arts 103 and 104 ensure minority representation among judges, with guar-anteed quotas in appellate courts, while article 108 ensures minority repre-sentation in the Kosovo Judicial Council through a procedural mechanism relying on the minority delegates in the Assembly. Arts 109, 110 concern-ing prosecutorial authorities simply call for them to reflect the multi-ethnic nature of Kosovo.


pal level.123 These rules embrace many ideas of consociational demo-cracy,124 but do not institute a generalized system of reserved posts cov-ering most of the available positions, and do not exclude certain groups, but tend to prefer proceduralized mechanisms and the creation of spe-cialized bodies representing group interests over fixed quotas. Also unlike in BiH, the single Presidency, which is elected by the Assembly, is not subject to any ethnicity requirements, but represents the “unity of the people” (cf. arts 84 et seq.).

The quotas ensure the overrepresentation of the minority communi-ties relative to their population share, but do not prevent ethnic outvot-ing by the dominant Albanian majority. Hence, the quotas are comple-mented by a system of double-majority requirements applicable to the legislature, which replace the ill-defined “vital interest veto”. Unlike in BiH, the Kosovo Constitution foresees a double majority requirement in two specifically defined legislative scenarios, which places the Serb minority in a veto position in both cases. The first scenario concerns constitutional amendments, which require a two thirds majority of all deputies, including a two thirds majority of all deputies representing the minority communities (arts 65 para. 2, 144 para. 2). The second double-majority rule applies to “legislation of vital interest”, which re-quires for its adoption or amendment a simple overall majority as well as a simple majority among the 20 deputies representing minority communities (article 81). However, unlike in BiH, the vital interest veto is confined to eight legislative areas exhaustively enumerated in article 81 of the Constitution. They include the delimitation and competences of municipalities, local elections, community rights, language, educa-tion, cultural heritage, religious freedom and state symbols. Moreover, the first adoption of such laws, which occurred under strong interna-tional supervision, was not subjected to the veto requirement (article 149). Within these areas, the veto is a definitive one, in contradistinc-tion, and reaction, to earlier experiences under international administra-tion: the Constitutional Framework of 2001 had adopted a more liberal conception of power sharing and provided for similar legislative quotas, but only for a suspensive veto by the Serb minority. This led to them

123 Article 62 reserves the post of the “Vice President of the Municipal Assem-

bly for Communities” in multi-ethnic municipalities to a representative of minority communities and accords him standing in the Constitutional Court, but does not institute a general quota.

124 See Doli/ Korenica, What about Kosovo’s Constitution, see note 9, 62 et seq.


being outvoted by Kosovo Albanian block voting on repeated occa-sions.125

As a whole, the system indeed shows evidence of a certain learning curve within the international community. It contains mechanisms of guaranteed representation which have the potential to ensure political participation of ethnic minorities while reducing the risk of blockades by confining veto rights to limited and clearly defined areas.126 It is no-ticeable that the cases where the vital interest was invoked in BiH largely correspond to the legislative areas enumerated in the Kosovo Constitution – with some exceptions such as the sensitive issue of prop-erty rights and restitution. It seems a preferable constitutional choice to state as a principle that vetoes are limited to some specified areas and define these areas more clearly. As far as early practice in Kosovo is concerned, it seems that the legislative process and executive decision making have not been affected by ethnic blockage to the same problem-atic extent. On the contrary, the Kosovo Assembly has adopted a sub-stantial set of progressive legislation on minority and other issues, as required by Annex XII of the Ahtisaari Plan. This compulsory legisla-tive agenda was part of the independence bargain and thereby prevented certain legislative omissions that occurred in BiH.

The International Civilian Representative, tasked to supervise the implementation of the Ahtisaari Plan, has not formally made use of his powers to intervene in constitutional or day to day politics. As for the Constitutional Court of Kosovo, it has issued several decisions regard-ing disputes within central state institutions, but has not been con-fronted so far with inter-ethnic conflict at the central level. With regard to compliance with the normative standards set out by the European Court of Human Rights in its Sejdiü and Finci Judgment,127 the system is less problematic inasmuch as it does not prevent certain citizens to stand for any public office on account of their ethnicity. Still, the legis-lative quotas do restrict equality in elections guaranteed under article 14 ECHR and article 3 of Protocol 1, as minority voters have a dispropor-tionate influence on the final composition of the Assembly. Yet, as has been pointed out, the European Court of Human Rights has tradition-ally accorded a particularly wide margin of appreciation to Member States in the area of electoral systems, and would thus be likely to con-sider the quotas necessary for the sake of minority protection. 125 Marko, see note 8, at 2.1. 126 Similarly Marko, see note 9, 450. 127 Supra, note 108.


What has turned out as problematic instead is Kosovo’s lacking ca-pacity to implement the progressive normative framework and the un-willingness of considerable segments of the Serbian elites and popula-tion to actually participate in central institutions. Many boycotted polls in independent Kosovo and rather voted in local elections organized by the Republic of Serbia. This illustrates the truism that normative ar-rangements of power sharing are insufficient in themselves, but must be made use of. The mechanisms elaborated under the headings of conso-ciational democracy and power sharing are at least partly based on the assumption that the ethnic groups to be accommodated are politically active and eager, or at least willing, to actually share the power wielded by the state they live in.128 In Kosovo, this willingness still hinges mainly on the normalization of relations between Kosovo and the Re-public of Serbia, as the latter continues to wield considerable influence with local Serbs. Conversely, the Kosovo government dominated by ethnic Albanians has made little progress so far in implementing the normatively advanced minority protection and affirmative action provi-sions in the Constitution and in the implementing legislation. The crea-tion of a truly multi-ethnic civil service has failed so far (with the nota-ble exception of the Kosovo police), discrimination of minorities re-mains widespread and their political, social and economic inclusion a pressing need.129

On a more general level, the comparative analysis illustrates that BiH and Kosovo employ structurally similar elements of “ethnic con-stitutionalism”. However, the Kosovo Constitution indeed finds a bet-ter balance between ethnic and civic elements. These normative im-provements can be attributed to lessons learned from BiH and else-where, but were also made possible by the different demographic con-text and increased leverage of the international community. The prob-

128 Doli/ Korenica, What about Kosovo’s Constitution, see note 9, 64, with

further references. 129 Marko, see note 8, at 3; E. Lantschner, “Protection of Minority Communi-

ties in Kosovo: Legally Ahead of European Standards – Practically Still a Long Way to Go”, Review of Central and East European Law 33 (2008), 451 et seq. See also Commission Staff Working Document, Kosovo 2010 Progress Report, SEC (2010)1329; International Crisis Group, Kosovo and Serbia after the ICJ Opinion, Europe Report No. 206, 26 December 2010. For an early critique of UNMIK’s handling of the question of whether to “encourage diversity or facilitate integration”, see A. Schwarz, “Communi-ties and Minorities in UNMIK’s Virtual World of a Multicultural Kosovo”, ZaöRV/ HJIL 63 (2003), 761 et seq., notably 778.


lems encountered in the first years of Kosovo’s independence rather concern deficits in the implementation of the normative order and the inclusion of the Serb minority. Kosovo is, in the words of a critical ob-server, legally ahead of many European standards, but practically has a long way to go.130

IV. Forms and Defects of Internationalized Constitutionalism in Bosnia-Herzegovina and Kosovo

The practical implementation of the respective peace plans and consti-tutional orders is first and foremost the responsibility of internal, de-mocratic politics driven by representatives of the local population. Ho-wever, the introduction of new elements of classical constitutionalism and their combination with ethnic moments in the post-conflict divided societies was seen as insufficient to guarantee the effective functioning of a legitimate government, and indeed turned out to be precarious in practice. Hence, the additional solution employed by the international community was the further internationalization of constitutional life. In Bosnia and Kosovo alike, international actors have ensured a continued constitutional role for internationalized institutions under the respec-tive new legal orders. While a wide range of international and European institutions is present in both situations131, a comparative constitutional law perspective sheds light notably on two internationalized institu-tions imbued with a constitutional mandate: the Constitutional Courts on the one hand, and the High Representative (BiH) and the Interna-tional Civilian Representative (Kosovo) on the other hand.132

They represent two different forms of internationalization: the Con-stitutional Courts are hybrid institutions, whereas the offices of the Representatives are thoroughly international in nature. The hybrid model chosen for the judiciary integrates international elements into the

130 Lantschner, see note 129, 451. 131 For an overview of the different forms of internationalization, see F. Bieber,

“Institutionalizing Ethnicity in Former Yugoslavia: Domestic vs. Interna-tionally Driven Processes of Institutional (Re)Design”, The Global Review of Ethnopolitics 2 (2003), 3 et seq.

132 Both were Special Representatives of the European Union for certain peri-ods of time. For the purposes of this article, we leave this aspect aside and focus on their respective constitutional roles.


classical structures of the judicial branch,133 while the legislature and executive branch remain national. Instead, they are complemented by, and juxtaposed to, an entirely new international supervisory organ, which holds legislative and executive functions. As the following com-parison will show, hybridization and the creation of new international organs have different consequences for the separation of powers, rule of law and democratic legitimacy. Thus, in the following part, we will first turn to the Constitutional Courts to illustrate the different forms and practices of their internationalization. In the next step, we will focus on the Representatives of the international community in order to compare their respective legal bases, powers, interventions and the consequences for constitutionalist principles.

1. Internationalized Constitutional Courts

Historically, the existence of Constitutional Courts is not an entirely new phenomenon in BiH and Kosovo, as they disposed of their own regional constitutional justice system under the Yugoslav constitution for some time.134 Yet, the new Constitutional Courts differ considera-bly in terms of their enhanced powers and internationalized nature, and are essentially creations of the internationalized constitution-making processes. The Constitutional Court of BiH, foreseen in article VI of the Constitution, has become a key actor in political life and a driving force of incremental constitutional reform since its inception in 1997.135 In Kosovo, a strong Constitutional Court was already envisaged in the

133 Hybrid arrangements are used not only in the Constitutional Courts, but

pervade the ordinary judiciary, too. See L. Dickinson, “The Relationship Between Hybrid Courts and International Courts: the Case of Kosovo”, New England Law Review 37 (2003), 1059 et seq.; id., “The Promise of Hybrid Courts”, AJIL 97 (2003), 295 et seq.; E. Bruch, “Hybrid Courts: Examining Hybridity Through a Post-Colonial Lens”, B. U. Int’l L. J. 28 (2010), 1 et seq.

134 Marko, see note 10, 7. See also article 375 of the 1974 SFRY Constitution. 135 From the literature on the Court, see J. Marko, “The Status of the Consti-

tutional Court in Bosnia: Law in the books and law in practice”, in: Federal Ministry for Foreign Affairs (ed.), Building Justice. A Conference on Estab-lishing the Rule of Law in Post-Conflict Situations, 1998, 149 et seq.; id., see note 10; D. Banovic, Die Verfassungsgerichtsbarkeit in Bosnien und Herze-gowina, 2009.


Ahtisaari Plan and instituted by the Constitution.136 It started operating in 2009137 and has already issued a number of sensitive decisions with considerable political import, causing inter alia the resignation of two successive Presidents of Kosovo.

Both Courts are designed to fulfil the function of a pouvoir neutre138 in the divided societies, where constitutional politics tend to play out along ethnic lines. At the same time, ethnic dividedness makes their character as neutral institutions somewhat precarious. In order to en-sure their ethnic and political neutrality, both courts are thus interna-tionalized in several respects and designed as hybrid institutions, draw-ing from experiences with hybrid courts in other situations.139 This somewhat departs from classical ideas of constitutional autonomy and national sovereignty and represents a key element of the model of in-ternationalized constitutionalism employed in both contexts.140 There-fore it is important to appreciate the efficiency of both Courts in up-

136 For first assessments of the Court, see S. Hill/ P. Linden-Retek, “Super-

vised Independence and Post-Conflict Sovereignty: The Dynamics of Hy-bridity in Kosovo’s New Constitutional Court”, Yale J. Int’l L. 36 (2010), 26 et seq.; V. Morina, “The Newly Established Constitutional Court in Post-Status Kosovo: Selected Institutional and Procedural Concerns”, Re-view of Central and East European Law 35 (2010), 129 et seq.; D. Doli/ F. Korenica, “Kosovar Constitutional Court’s Jurisdiction: Searching for Strengths and Weaknesses”, German Law Journal 11 (2010), 803 et seq.; F. Korenica, “Pointing the Rule of Law in a Transitional Polity: The Case of Kosovo’s Law on the Constitutional Court”, Contemporary Issues in Law 10 (2010), 183 et seq.; Riegner, see note 9, 556 et seq.

137 Constitutional Court of the Republic of Kosovo, Annual Report 2009, at <http://www.gjk-ks.org/repository/docs/annual_report_ccourt_2009.pdf>.

138 On this concept, see M. Herdegen, “Die Verfassungsgerichtsbarkeit als pouvoir neutre”, ZaöRV/ HJIL 69 (2009), 257 et seq.

139 Hill/ Linden-Retek, see note 136, 29 et seq. On other instances, see Dickin-son, see note 133, 1059 et seq.; Bruch, see note 133, 1 et seq.

140 Of course, neither the incorporation of international law into the constitu-tion nor the presence of foreign nationals in superior organs of justice is al-together uncommon. Indeed, in the common law world, Supreme Court judges are at times drawn from foreign legal systems, and namely African countries do not seem to have issues with appointing jurists from, for in-stance, Jamaica. Even beyond that, the German jurist Ernst Forsthoff served as a constitutional adviser and court judge in divided Cyprus. Legal qualification, professional experience and personal integrity played a more important role than nationality in these circumstances. We thank Brun-Otto Bryde for these comments.


holding constitutional law, and to evaluate the positive, negative or neu-tral impact of the internationalization. The analysis of their hybrid composition (under a.), their competencies (b.), and the standards of re-view (c.) will help to answer these questions.

a. Composition

The first and the most visible aspect of the internationalized nature of both Courts is their hybrid composition, embodied by three interna-tional judges in each case. The participation of international judges is intended to prevent ethnic outvoting, to contribute expertise of com-parative and international law, and thus to improve local judges’ capac-ity in decision making. International actors can also contribute to over-come the ethnic divisions, thus favouring the building of a common identity which, in turn can strengthen the legitimacy, the independence and the impartiality of the Court and an efficient implementation of the Constitution. But it is also clear that the presence of such a foreign ele-ment can be seen as an intrusion into the national affairs, as an attempt at supervision, or on the contrary as a superfluous “decoration”. In any case, the effect of the internationalization must be appreciated in a cau-tious approach. How can the situation in BiH and in Kosovo be as-sessed in this regard?

According to article VI-1 of the Bosnian Constitution, the Court is composed of nine judges, six local and three international. The local judges are elected by the legislatures of both Entities: four are selected by the House of Representatives of the Federation of BiH and two by the Assembly of the Republika Srpska. The three international judges are appointed by the President of the European Court of Human Rights after consultation with the State Presidency of BiH (article VI-1.a.)). In order to strengthen the Court’s stability and its independence, perhaps also by transplant of Austrian rules, the term of the mandate is fixed to 70 years.141 The Constitution requires neither a special profes-sional qualification (only a high moral standing) nor does it institute any official ethnic quota among the local judges. However, in practice the two judges elected in the Republika Srpska are Serbs and of the four judges elected in the Federation two are Croats and two Bosniacs.142 This composition, which is regulated by the Constitution itself, con-

141 The judges initially appointed for five years were not re-eligible. 142 See Marko, see note 10, 29 et seq. Arts 87 to 89 Rules of the Court refer to

the judges coming from the different constituent peoples.


cerns the Plenary Court. The Plenary adopts its decisions by majority, so that the group of international judges allied to one ethnic group can outvote the two others.143 The Plenary’s jurisdiction concerns only ab-stract review of legislation, and those cases referred to it by the “Grand Chamber”. The Grand Chamber, instituted by the Rules of the Court (article VI-2b))144, is composed of five local judges, and is comple-mented by the “Chamber” of three judges.145 The Grand Chamber is competent for individual appeals and deals with the bulk of cases han-dled by the Court, so that the Plenary meets only every other month. The Chambers decide unanimously, and only if unanimity among the local judges cannot be reached, the case is referred to the Plenary. This setup creates incentives to compromise, but referrals still happen fre-quently. Thus the most sensitive problems are resolved in the Plenary, sometimes according to ethnic divisions, sometimes in a quite transver-sal way.

The main practical difficulties of the Court result from the proce-dure governing the selection of local judges. The fact that no special professional qualification is required and that the Entities’ legislators select the judges often led to the appointment of important political personalities. This favours the persistence of ethnic divisions and can question the independence of the Court. In one case, a local judge has even been dismissed by the unanimous decision of the others.146 Fur-thermore, the ethnic quotas can raise difficulties when it comes to the election of the Court’s President, since only one ethnic group can stand for election.147 Nevertheless the Court managed to prevent the blockage of the whole institution by introducing special rules in case of a tied vote and has continuously functioned even while other organs were paralysed.148 While these problems are not connected to the hybrid composition of the Court, hybridity, by its very existence, mechanically reduces the possible cases of undue ethno-political influence. In general, 143 Furthermore, the judges have the faculty to publish with the majority De-

cision their individual concurring or Dissenting Opinion. It does not hap-pen systematically, but is rather frequent.

144 Arts 7 to 10 Rules of Court. 145 The Chamber composed of the President and the two local Vice-Presidents

takes unanimous Decisions on requests of interim measures and on desig-nation of judges rapporteurs.

146 Decision of 8 May 2010. After that, the Assembly of the Republika Srpska has refused for more than a year to select another Serb judge.

147 Article 87 Rules of the Court. 148 See Article 40 of the Rules as amended in 2009; Marko, see note 10, 30.


hybridity is certainly perceived quite differently depending on the point of view, be it from the inside of the Court, public opinion or political (ethnic) leaders. It may be seen as a contribution to the neutrality, inde-pendence, impartiality and professionalism of the Court, or as a risk of heteronomy and foreign domination. Generally, it seems however that the presence of international judges has at least helped on some occa-sions to improve the communication between the constituent peoples and with the international community. Such a mediating function may provide some additional legitimacy to the international actors and com-plement their functional legitimacy as pouvoir neutre and guarantors of the functioning, and deblockage, of the Court’s decision making proce-dures.

The composition of the Constitutional Court of Kosovo follows a similar hybrid pattern.149 It is staffed with nine judges: six locals, nomi-nated by the Kosovo Assembly and appointed by the President of the Republic, and three internationals, appointed by the International Ci-vilian Representative upon consultation with the President of the Euro-pean Court of Human Rights.150 Minority representation is ensured by the requirement that two of the six candidates proposed by the Assem-bly must be backed by a majority of the 20 parliamentarians represent-ing the ethnic minority communities.151 These express rules in the Kos-ovo Constitution officialise the ethnic representation principles prac-ticed in Bosnia to a certain extent, but only by including a procedural mechanism and not by establishment of fixed quotas, which seems pref-erable. Moreover, in reaction to the politicization of appointments in BiH, article 114 para. 1 of the Kosovo Constitution requires eligible candidates to be distinguished jurists with no less than ten years of rele-vant experience.

As a result, the first appointments in 2009 brought four judges of Kosovo Albanian origin, three of them law professors, to the Court; the 149 See on more detail on the hybrid composition Hill/ Linden-Retek, see note

136, 34 et seq. On organization and composition see also Morina, see note 136, 137 et seq.

150 Article 152 para. 4 of the Constitution, which foresees appointment by the International Civilian Representative, contradicts Annex I, article 6.1.3 of the Ahtisaari Plan, according to which appointments are made by the President of the European Court of Human Rights upon consultation with the Representative. In practice, this divergence does not seem to have caused conflicts. See Hill/ Linden-Retek, see note 136, 35, footnote 43.

151 Article 114 para. 3, respectively article 152 para. 3 of the Constitution, which implement Annex I, article 6.1 of the Ahtisaari Plan.


two others were jurists of Serbian and Turkish background.152 Again, this composition means that theoretically, the two minority judges and the three internationals together form a majority and can prevent both the outvoting by the ethnic Albanian judges and the blockage of the en-tire institution. It procedurally safeguards the substantive minority pro-tection provisions in the Constitution and the effectiveness of the Court, while the professional eligibility criteria reinforce its character as a pouvoir neutre. In the Court’s early practice, ethnic block voting is not evident, nor are there pervasive divisions along local vs. interna-tional lines.153 For the time being, the decisions are prepared by a panel of three judges, but made by all judges en bloc. In the long run, it might be advisable to foster local ownership and adopt a model like in Bosnia where international judges only participate in plenary court rulings if local judges cannot reach a unanimous decision. This could be part of a strategy for a sequenced and smooth exit of internationals. Conversely, the Bosnian practice of ethnic quotas, which excludes minorities such as Jews, Roma and individuals who do not wish to identify as a member of one particular people, could consider a more inclusive appointment practice as is emerging in Kosovo.

b. Competencies

The competencies of internationalized Constitutional Courts are an important factor when appreciating whether and to what extent the Courts are able to implement and to enforce the constitutional provi-sions. Furthermore, they play a major role in the legitimacy question. If a Court disposes of numerous and large attributions, it is not obliged to justify its competencies in each particular case and can concentrate its efforts on substantive arguments to make its reasoning even more con-vincing. In the inverse situation, the persistent need to justify the Court’s interventions inevitably threatens its legitimacy, as well as its capacity to impose the constitutional rules. We will see that once again Kosovo is better fitted in this regard than BiH.

152 The international judges appointed in 2009 were of Bulgarian, Portuguese

and US origin and had held posts at the European Court of Human Rights, the International Criminal Tribunal for the Former Yugoslavia and hybrid courts in BiH respectively beforehand. For the biographical information, see Hill/ Linden-Retek, see note 136, 35.

153 Cf. Hill/ Linden-Retek, see note 136, 36 et seq. Concerns that the possibil-ity of Dissenting Opinions would have a divisive effect on the Court (Morina, see note 136, 152 et seq.) have not materialized so far.


The Court in BiH is attributed a general competence to “uphold the Constitution” (article VI-3). This general jurisdiction is somewhat con-cretised by the following text, but the Court had to extensively inter-pret the text on repeated occasions and had to rely on the general com-petence to justify its jurisdiction.154 The Constitution lists a number of types of requests: the first concerns inter-institutional litigation be-tween central organs or between organs of an Entity as well as federal disputes between the state and the Entities; the second is review of con-stitutionality of legislation through abstract norm control (article VI-3a)). In these two cases, only the highest political authorities have standing,155 and the number of requests is rather modest.156 The third attribution of the Court concerns individual complaints against the judgement of any court, if a constitutional question is raised by one of the parties (article VI-3b)). This procedure is by far the most frequent and concerns the most various items. The fourth competence, concrete norm control through ordinary court referrals (article VI-3c)), remains rare. The last category of competences is employed a little more fre-quently: it concerns the “vital interest vetoes” of one of the constituent peoples (article IV-3 e) f)) or of one of the Entities (article V-2 d)), as elaborated upon above.157 Altogether, the Court decides on more than 3000 requests per year.158

The very laconic formulations in the Bosnian Constitution have caused problems in the Court’s practice. Obviously, such general prin-ciples as “upholding the Constitution” must be interpreted. Yet, it is impossible for the Constitutional Court of a new and weak state to give a systematically wide interpretation to all its powers. The vagueness of the constitutional text inevitably raises problems regarding the Court’s legitimacy and its capacity to implement the text. In addition, in the context of the local legal culture, rather influenced by the Austro-Hungarian formalistic traditions, this vagueness also generates uncer-tainty with respect to the competencies of the Court. Its case law has 154 See Marko, see note 10, 20 et seq. 155 The members of the Presidency, the Prime Minister, and one fourth of the

Parliamentary Assemblies of the state and of the Entities, the Federation of Bosnia-Herzegovina and the Republika Srpska.

156 Between 15 and 20 per year. 157 See at III. 3. 158 For instance, in 2009, the Court has received 4209 requests; it has decided

3294 cases and on 30 December, 6243 cases were still pending. In 2010, it received 6056 requests, decided on 4057 cases and, at the end of the year, 8243 cases were still pending.


not always contributed to clarify the state of the law, and the jurispru-dence seems to oscillate between rather restrictive and more extensive conceptions on judicial review. So, on the one hand, the competencies in the abstract norm control have often been widely interpreted, and now include the review of Entity decisions or of by-laws and statutes of municipal councils. The Court has thus decided on wide-ranging mat-ters such as the names of cities, the composition of municipal councils, or decisions of an Entity legislature on the non-recognition of Kos-ovo.159 On the other hand, the Court usually reasons that the contesta-tion of general norms in legislation is exclusively in the general interest, and cannot therefore be initiated by individuals. Consequently, it is re-luctant to quash a judgement in an individual appellate procedure if its only defect resides in the fact that the law underlying the challenged ruling is unconstitutional. On some occasions, however, the Court an-nuls the judgment, or refuses to apply the underlying legislation, and justifies this by reference to article 6 ECHR and to the principle of the rule of law.160 In order to remove this uncertainty and to improve the implementation of the Constitution, it would be preferable to unambi-guously open norm control to individuals.

Compared to the rather short list of procedures in Bosnia, the com-petences of the Constitutional Court in Kosovo are more elaborate: ar-ticle 113 enumerates a total of 13 types of proceedings, including dis-putes among central state organs and between the centre and munici-palities, references by ordinary courts, and individual complaints against acts of public authority. Most of the early case law of the Court concerns individual complaints, and in one of its first cases,161 the Court has implicitly indicated its willingness to broadly interpret its re-spective competence and to review the constitutionality of legislation underlying individual complaint proceedings, in preferable contradis-tinction to the narrow approach of the Bosnian Court. In addition, the

159 The relevant decisions are namely: U 4/ 05 of 22 April 2005, Statute of the

City of Sarajevo; U 7/ 05 of 27 January 2006, Statutes of the towns of Is-tocno Sarajevo and Banja Luka; U 6/ 08 of 30 January 2009, Resolution of the National Assembly of the Republika Srpska refusing to recognize the Kosovo state; the Decision on the principles in this matter: U 1/ 09 of 29 May 2009 concerning a general Decision and an individual Decree of the government of the Federation.

160 Cf. Marko, see note 10, 22 et seq.; C. Steiner/ N. Ademovic, “Article VI”, in: id., see note 10, 684 et seq., 744 et seq.

161 KI. 11/ 09, Tomë Krasniqi vs RTK et al., Decision of 16 October 2011 on interim measures.


list of competencies also contains several variants of abstract norm con-trol, which can be initiated by central state organs or parts thereof. As a result of Bosnian experiences with ethnic conflicts on the local level, the Constitution also extends the Court’s reach directly into the munici-palities. Municipal statutes can be subject to abstract review initiated by central state organs, and the local representative of ethnic minority communities on the municipal level is given standing to refer disputes over acts of local authorities directly to the Constitutional Court.162 The latter competence has given rise to the ethnically sensitive “Prizren Emblem” case discussed above.163

Two items are missing from the list: the politically sensitive issue of party bans is simply attributed to “the competent court” by article 44 para. 3, and, like in BiH, there is no ex-ante constitutional review of in-ternational treaties, even though these have direct effect within the Kosovo legal order after ratification and trump ordinary legislation (ar-ticle 19).164 These competences can, and should, be attributed to the Court by ordinary legislation.165 Generally speaking, however, the Kosovo Constitution has instituted a strong Constitutional Court with well defined, extensive powers, which do not cause legitimacy con-straints on account of their vagueness as in BiH. This seems all the more important as the Court’s early case law has already caused conflicts with other institutions: the quashing of a series of last instance judge-ments by the Constitutional Court166 following individual complaints has met with opposition by the Kosovo Supreme Court. Two other rul-ings caused the resignation of two successive presidents of the Republic of Kosovo and political instability: in September 2010, the Constitu-tional Court found the then President of the Republic of Kosovo in se-rious violation of the incompatibility provisions of the Constitution, as he was at the same time the head of a leading political party.167 After the 162 Article 62 para. 4. 163 At III. 1. 164 On the apparent contradiction to the review procedure instituted by article

113 para. 3 (4), see below, IV. 1.c. 165 Article 113 para. 10. In this sense also Marko, see note 9, 449; Morina, see

note 136, 146; Doli/ Korenica, see note 136, 834. 166 KI 40/ 09, Imer Ibrahimi and 48 Other former Employees of the Kosovo

Energy Corporation v. 49 Individual Judgments of the Supreme Court of the Republic of Kosovo, Judgment of 23 June 2010.

167 KI 47/ 10, Naim Rustemi and 31 other Deputies of the Assembly of Kos-ovo. vs. His Excellency Fatmir Sejdiu President of the Republic of Kosovo, Judgment of 28 September 2010.


following general elections, the first in independent Kosovo, the Court annulled the election of the subsequent President for violations of the voting rules in the Assembly.168 In both cases, the political opposition had chosen to make use of the inter-organ dispute proceedings before the Constitutional Court, and both incumbents resigned after the Court’s ruling. The major political actors seem to have accepted, how-ever grudgingly, the Court as the authoritative interpreter of the Con-stitution. Already in the first years of its existence, the Court has thus become an important player in the constitutional life of Kosovo.

c. Applicable Law and Standards of Review

The third international dimension concerns the influence of interna-tional sources on applicable law and the standards of review.169 This is the very point where, besides the composition, internationalization ex-ercises a direct influence on the Courts’ work. Both Constitutions in-corporate numerous international law provisions, mainly in the field of human rights, and confer direct effect on them. This raises the question of how Courts deal with international legal instruments and how they approach the relationship between international and domestic law.

While constitutional review in BiH refers to the Constitution, it is important to recall that this Constitution is integrated in an interna-tional treaty, the Dayton Agreement. A first consequence of this is that the Constitutional Court applies the interpretative rules of article 31 of the Vienna Convention on the Law of Treaties.170 Secondly, not only Annex 4, but all other Annexes are considered to be applicable constitu-

168 KO 29/ 11, Sabri Hamiti and other Deputies, Constitutional Review of the

Decision of the Assembly of the Republic of Kosovo, No. 04-V-04, con-cerning the Election of the President of the Republic of Kosovo, dated 22 February 2011, Judgement of 30 March 2011.

169 For a recent overview over the changing relationship between public inter-national law and constitutional law, see A. Peters, “Supremacy Lost: Inter-national Law Meets Domestic Constitutional Law”, Vienna Journal on In-ternational Constitutional Law 3 (2009), 170 et seq. For the Eastern Euro-pean context, see V. Vereshtin, “New Constitutions and the Old Problem of the Relationship between International Law and National Law”, EJIL 7 (1996), 29 et seq.; P. Sonnevend, “International Human Rights Standards and the Constitutional Jurisprudence of Transition States in Central and Eastern Europe”, ASIL Proceedings 96 (2002), 397 et seq.

170 U 5/ 98, 3rd partial Decision of 1 July 2000, see note 18, para. 19.


tional law.171 Thus the Bosnian Constitution in a wider sense consists of all eleven Annexes, which charge BiH with a number of obligations re-lated to peace- and state-building, such as the cooperation with interna-tional organizations or the establishment of diverse institutions, includ-ing a Human Rights Commission (Annex 6). Moreover, article II of the Constitution incorporates a number of international human rights in-struments and makes them directly applicable in the Bosnian domestic legal order: most importantly, the ECHR and its Protocols are directly applicable and have “priority over all other law” (article II.2.). This is followed by a list of rights derived from the ECHR and the incorpora-tion of further 15 international instruments of individual rights protec-tion to be secured “without discrimination”, listed in Annex I to the Constitution and including, inter alia, the UN Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, as well as the Framework Convention for the Protection of National Minori-ties.172

The ECHR occupies a special position in the Bosnian constitutional order: it seems to be intangible and to be located at a supra-constitutional rank. Although the Constitutional Court denies such an interpretation arguing that the Convention derives its authority only from the Constitution,173 it nevertheless places the ECHR on the same

171 Cf. Marko, see note 10, 9 et seq. 172 The full list is as follows: 1948 Convention on the Prevention and Punish-

ment of the Crime of Genocide; 1949 Geneva Conventions I-IV on the Protection of the Victims of War, and the 1977 Geneva Protocols I-II thereto; 1951 Convention relating to the Status of Refugees and the 1966 Protocol thereto; 1957 Convention on the Nationality of Married Women 1961; 1961 Convention on the Reduction of Statelessness; 1965 Interna-tional Convention on the Elimination of All Forms of Racial Discrimina-tion; 1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto; 1966 Covenant on Economic, Social and Cultural Rights; 1979 Convention on the Elimination of All Forms of Discrimination against Women; 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; 1987 European Convention on the Prevention of Torture and Inhuman or De-grading Treatment or Punishment; 1989 Convention on the Rights of the Child; 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; 1992 European Charter for Regional or Minority Languages; 1994 Framework Convention for the Protection of National Minorities. Furthermore, Annex 5 of the Dayton Agreement is concerned with the rights of displaced persons.

173 U 5/ 04, Presidential Elections, Decision of 31 March 2006.


rank as the Constitution and accepts its text and Strasbourg case law as a standard of review.174 In fact, most complaints in the appellate proce-dure invoke the Convention rights, first of all article 6 ECHR. The other international instruments enumerated in Annex I of the Constitu-tion do not benefit from such a privileged status. For a rather long time, this has incited the Constitutional Court to apply them only when a problem of non-discrimination was at stake; but recently the Court has accepted to implement these instruments even beyond the non-discrimination context.175

In Kosovo, the internationalization of the standards of review is similar, with some important nuances. The Constitution itself is of do-mestic law and relates to international standards in three respects: the general relationship between constitutional and international law is governed by article 19, which accords ratified, self-executing treaties and other legally binding norms of international law direct effect and “superiority over the laws of the Republic of Kosovo”. The Constitu-tional Court will have to reconcile this hierarchy with article 113 para. 3 (4), which empowers the Court to review the compatibility of proposed constitutional amendments with ratified international treaties.176 A sec-ond aspect of internationalization, and a visible result of the “super-vised” nature of Kosovo’s independence, is the fact that in case of con-flict the Ahtisaari Plan enjoys normative supremacy over the Constitu-tion,177 and all constitutional provisions must be interpreted in accor-dance with the Plan (article 143 para. 3 of the Constitution). This raises the theoretical question what the actual Grundnorm in the constitu-

174 C. Steiner/ N. Ademovic, “Article II”, in: id., see note 10, 153 et seq., 176

et seq. 175 AP 839/ 10, Decision of 25 September 2010. 176 Two interpretations seem possible: firstly, international treaties, once rati-

fied, have a supra-constitutional rank and must be denounced before the amendment can enter into force. The better view may be that the Court’s review does not preclude the constitutional amendment, but is rather meant to be a declaratory Advisory Opinion procedure designed to expose divergences of international obligations and domestic constitutional law. On the lack of a converse review procedure regarding the constitutionality of international agreements, see above. IV. 1.b. See generally, Doli/ Ko-renica, see note 136, 824 et seq.

177 For such a – so far unproblematic – conflict with regard to the appointment of international judges to the Constitutional Court, see above, IV. 1.a.


tional order of Kosovo is178 and entrusts the International Civilian Rep-resentative, who is charged with the authoritative interpretation of the Plan (article 147 of the Constitution), with an important para-constitutional function.179 Thirdly, as far as individual rights protection is concerned, the drafters of the Kosovo Constitution opted for a two track approach that leads to a “hybrid” text:180 in line with prescrip-tions of the Ahtisaari Plan,181 eight selected international human rights instruments are directly applicable within Kosovo by virtue of article 22 of the Constitution. This includes the ECHR, but also concerns, inter alia, the Universal Declaration of Human Rights, the UN Covenant on Civil and Political Rights, the Council of Europe Framework Conven-tion for the Protection of National Minorities and a number of other UN human rights instruments.182 At the same time, the Constitution contains its own human rights catalogue, beginning with human dignity and encompassing social rights such as equal access to education, health and work, complemented by domestic provisions on possible limita-tions and emergencies (arts 23-56).183

The inclusion of a domestic rights catalogue was a deliberate choice to improve local ownership and to nourish a distinct constitutional identity. It raises the question, however, how international and domestic standards relate to each other. In this regard, article 22 stipulates that in-ternational instruments have priority over national laws, which is un-derstood as placing them in a “mezzanine” position between constitu-tional norms and ordinary law.184 Yet, the ECHR is placed in a privi-

178 For a discussion of this aspect, see Doli/ Korenica, What about Kosovo’s

Constitution, see note 9, 51 et seq. 179 See below, IV. 2. 180 Marko, see note 9, 447. 181 See Annex I, article 2 of the Ahtisaari Plan. 182 The other instruments are: Convention on the Elimination of All Forms of

Racial Discrimination; Convention on the Elimination of All Forms of Discrimination Against Women; Convention on the Rights of the Child; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Unlike in BiH, the Covenant on Economic, So-cial and Cultural Rights is absent from the list. Article 58 further requires Kosovo authorities to “respect the standards set forth in the Council of Europe Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages.”

183 Critical on the multiplication of standards for the restriction of fundamen-tal rights Marko, see note 9, 448.

184 Marko, see note 9, 448.


leged position: article 53 requires Kosovar institutions, including the Constitutional Court, to interpret all human rights and fundamental freedoms guaranteed by the Constitution “consistent with the court de-cisions of the European Court of Human Rights.” This goes further than many other European constitutions and compensates the fact that Kosovo is not yet a member of the Council of Europe.185 It also enables the Constitutional Court to extensively rely on the European Court of Human Rights case law and use it legitimately as a valuable resource, which it does extensively. However, it also raises questions: does article 53 modify the hierarchy established in article 22 and does it constitu-tionalize the ECHR and its case law?186 Or should it simply be under-stood as an order addressed to the local authorities without any hierar-chical effect?187 In addition, problems may arise notably in cases of in-dividual rights collisions, e.g. in conflicts between returning refugees and current tenants of property, or in child custody cases.188 It is not 185 On the consequences of the ICJ Advisory Opinion on Kosovo’s Declara-

tion of Independence for Kosovo’s position with regard to, inter alia, in-ternational organizations, see K. Oellers-Frahm, “Problematic Question or Problematic Answer? Observations on the International Court of Justice’s Advisory Opinion Concerning Kosovo’s Unilateral Declaration of Inde-pendence”, GYIL 53 (2010), 793 et seq. On the Unilateral Declaration of Independence and its interpretation by the ICJ see A. Orakhelashvili in this Volume, 65 et seq.

186 Annex I, article 2.1 of the Ahtisaari Plan seems to support this view. In a similar vein, Marko, see note 9, 448.

187 For instance, the similar provision of article 10-2 of the Spanish Constitu-tion is interpreted in this sense. On the status of the ECHR in the Spanish and various other European legal orders, see G. Martinico/ O. Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws, 2010. From the German debate, see only H.J. Cremer, “Zur Bindungswirkung von EGMR-Urteilen”, EuGRZ 31 (2004), 683 et seq.; J.A. Frowein, “Die traurigen Missverständnisse. Bundesverfassungsgericht und Europäischer Gerichtshof für Menschenrechte”, in: K. Dicke et al. (eds), Weltinnenrecht. Liber amicorum Jost Delbrück, 2005, 279 et seq.

188 On the latter situation and on conflicting views of the role of the European Court of Human Rights and national constitutional courts, see for instance on the one hand European Court of Human Rights, Görgülü v. Germany, Application No. 74969/01, Judgement of 26 February 2004, and on the other hand German Federal Constitutional Court, No. 2 BvR 1481/ 04, Decision of 14 October 2004, available in English at <http:// www.bverfg.de/entscheidungen/rs20041014_2bvr148104en. html>. For discussions, see e.g. M. Hartwig, “Much Ado About Human Rights: The Federal Constitutional Court Confronts the European Court of Human


clear yet whether the European Court of Human Rights case law only represents a minimum standard or becomes strictly binding in these in-stances.

It seems that the conclusion on applicable law and standards of re-view is largely similar for both Courts. Even if they do not feel author-ized to place international law above the Constitutions, they apply it and refer to it in their everyday practice. The Kosovo Constitution adds constitutionally enshrined interpretive duties with regard to interna-tional instruments to the panoply of internationalizing mechanisms. Both Courts make an invaluable contribution to the protection of indi-vidual rights and thus to the implementation of one of the most impor-tant features of classical constitutionalism. Individual rights protection affords agency to individuals, otherwise affected by the potentially dominant ethnic groups, and addresses them in their capacity as citi-zens. This in turn adds to the legitimacy of the Court. Does this appre-ciation compensate the negative aspects observed especially with regard to BiH? Probably not completely, given the handicaps formed by the monopoly of the constituent peoples and the very vague enumeration of competencies. Individual rights protection in court cannot replace the required complementary concretization and realization of human rights through democratic politics and legislative action. Litigants and courts can hardly drive the process of identification with common val-ues and political integration alone.189

But we can certainly conclude that the integrated internationaliza-tion within hybrid Courts has not failed. Mixed institutions have the advantage that they can incrementally develop initial intentional hy-bridity to more organic forms of cooperation between local and inter-national actors.190 The Courts fulfil an important triple function in pro-tecting individual rights, in balancing democracy and ethnocracy, and in developing a system of checks and balances.191 Beyond these tasks, the Courts face the particular challenge to constructively engage with the second, non-hybrid and more ambivalent international feature of the institutional orders: the constitutionalized supervisory role of a Repre-sentative of the international community.

Rights”, German Law Journal 5 (2005), 869 et seq.; G. Lübbe-Wolff, “ECHR and national jurisdiction – The Görgülü Case”, Humboldt Forum Recht (2006), 1 et seq.

189 Haller, see note 52. 190 Hill/ Linden-Retek, see note 136, 28 et seq. 191 Marko, see note 10, 36.


2. International Supervision by the Representatives of the International Community

While constitution-makers did not hesitate to introduce an element of hybridity in the judiciary, they did not want to extend this solution to the executive and the legislative branches of government. Hence, both Constitutions establish an exclusively international Representative with para-constitutional executive and legislative competences to supervise and monitor the implementation of the civilian aspects of the respective peace plans. In order to carry out these functions, they dispose of of-fices with an administrative sub-structure and largely international sup-port staff of considerable size, and were thus designed as genuinely in-ternational bureaucracies. The varying, asymmetric internationalization might be explained by the fact that legislative and executive institutions were considered particular incarnations of state sovereignty and its po-litical orientation, and perhaps also by a desire to avoid the complexity that would have been created if international supervision had been inte-grated into the ethnic power sharing mechanisms.

The supervisory role of the Representatives has an ambivalent rela-tionship to classical constitutionalist beliefs. On the one hand, they can be seen as another pouvoir neutre and an additional element of checks and balances in ethnically divided polities. Moreover, the High Repre-sentative in BiH was instrumental in overcoming political stalemates within state institutions. On the other hand, the unelected institutions cannot be considered to be representatives of, or empowered by, those subjected to their rule. Furthermore, they were designed to be largely insulated from judicial review, which is problematic in terms of the doc-trine of separation of powers and rule of law. These ambivalences raise the question of how far these interferences in the national institutional systems and the deviations from democratic and rule of law principles are justified by the need for a neutral umpire and for overcoming ethnic immobility and political stalemates. A closer look at both instances of international supervision thus seems warranted.

In BiH, the international community as well as the European Union supervise the pacification, the return of refugees, the democratization and the establishment of a multicultural state in particular through the institution of a High Representative and its Office (OHR). The High Representative is appointed by a weakly institutionalized “Peace Im-plementation Council”, formed after Dayton by a – largely self-empowered – group of states, to which he is politically responsible. The OHR does not derive its authority from any form of local election pro-


cedure, but from international law. The immediate legal basis is Annex 10 of the Dayton Agreement, whose article V resumes the High Repre-sentative’s attributions in the following terms: “The High Representa-tive is the final authority in theatre regarding interpretation of this Agreement on the civilian implementation of the peace settlement”. Ar-ticle I para. 2 foresees a Security Council Resolution as the second legal base for these powers.192 The respective Resolution endorses the estab-lishment of the High Representative, limits itself to recalling the Day-ton formulations, and does not define the respective competencies in more detail.193 Consequently, it was the High Representative himself who – very generously194 – interpreted his own competencies, until they were confirmed by the Peace Implementation Council Conference in Bonn in 1997.195 The so-called “Bonn powers” authorized him espe-cially to remove public officials from office, including elected represen-tatives, to detain persons suspected of terrorism or of having committed war crimes, and to make laws in the place of the Parliament.

In light of the dysfunctional and inefficient institutional system and intensifying ethno-nationalist mobilization, the High Representatives in BiH have made rather intensive use of both their executive and legisla-

192 Article I, para. 2:“In view of the complexities facing them, the Parties re-

quest the designation of a High Representative, to be appointed consistent with relevant United Nations Security Council resolutions, to facilitate the Parties’ own efforts and to mobilize and, as appropriate, coordinate the ac-tivities of the organizations and agencies involved in the civilian aspects of the peace settlement by carrying out, as entrusted by a U.N. Security Coun-cil resolution, the tasks set out below.” (Emphasis by the authors). See on the details concerning the competencies of the OHR for instance Oellers-Frahm, see note 10, 206 seq.

193 S/RES/1031 (1995) of 15 December 1995. The relevant provisions are: “26. Endorses the establishment of a High Representative, following the request of the parties, who, in accordance with Annex 10 on the civilian implemen-tation of the Peace Agreement, will monitor the implementation of the Peace Agreement and mobilize and, as appropriate, give guidance to, and coordinate the activities of, the civilian organizations and agencies in-volved, and agrees the designation of Mr. Carl Bildt as High Representa-tive.” “27. Confirms that the High Representative is the final authority in theatre regarding interpretation of Annex 10 on the civilian implementation of the Peace Agreement”. On the interpretation of this “confirmation” by the Constitutional Court of BiH, see Steiner/ Ademovic, “Article VI”, see note 160, 789.

194 See Oellers-Frahm, see note 10, 208 et seq. 195 Doc. S/1997/979 of 16 December 1997.


tive powers: for instance, they enacted laws on the transfer of compe-tencies from the Entities to the central level, and removed elected offi-cials from public office for non-cooperation with the International Criminal Tribunal for the Former Yugoslavia. The number of interven-tions is impressive and reached 153 per year at the high point of the OHR’s activities.196 This raised criticisms with regard to democratic le-gitimacy and judicial accountability of the OHR,197 countered by some with arguments relying on the idea of a state of emergency.198 Conse-quently, the Constitutional Court was soon confronted with applica-tions challenging both its legislative and executive action.199 The prob-lem for the Court was that it considered, in principle, that the High Representative’s “powers under Annex 10 to the General Framework Agreement, the relevant resolutions of the Security Council and the Bonn Declaration as well as his exercise of those powers are not subject to review by the Constitutional Court.”200 Yet, it still subjected, in a first step, legislation by the High Representative to review, relying on the concept of “functional duality”: while legislative acts by the OHR were international in origin, in enacting laws the High Representative substituted the Assembly in its functions, and the respective legislation thus became part of domestic law and reviewable by the Court.201 When exercising its jurisdiction, the Court initially found legislation enacted by the High Representative to be in conformity with domestic

196 For a detailed list, see Stahn, see note 10, 399; Woelk, see note 10, 357. 197 Influential in this regard: G. Knaus/ F. Martin, “Travails of the European

Raj”, Journal of Democracy 14 (2003), 60 et seq. 198 Cf. on the emergency argument, inter alia, A. Rehs, “Von Dayton nach

Brüssel – Bosnien und Herzegowina auf dem Wege staatlicher und eu-ropäischer Integration”, in: Europäisches Zentrum für Föderalismus-Forschung Tübingen (ed.), Jahrbuch des Föderalismus 2006, 430 et seq. (440 et seq.). See further on the (mixed) reactions to the OHR’s activities Steiner/ Ademovic, “Article VI”, see note 160, 791 et seq.

199 On the following, see also Steiner/ Ademovic, “Article VI”, ibid., 782 et seq.

200 U 9/ 00, Law on State Border Service, Decision of 3 November 2000, para. 5.

201 U 9/ 00, ibid.; U 26/01, Law on the Court of BiH of 28 September 2001. For a detailed discussion and further case law, see Steiner/ Ademovic, “Ar-ticle VI”, see note 160, 795 et seq. See also Stahn, see note 35, 166 et seq., on the concept of functional duality and the differing approach of German courts under occupation after World War II.


constitutional standards, and the High Representative acquiesced into the review.202

The situation is different with regard to individual, executive acts of the OHR. The Constitutional Court considers that these do not substi-tute acts of domestic authorities and are not within the Court’s jurisdic-tion as defined by the wording of article VI.203 However, the Court still attempted to reconcile the absence of substantive review with basic ten-ets of judicial accountability and the rule of law: in the Bilbija case,204 the Constitutional Court found BiH (not the OHR) to be in violation of article 13 ECHR because those individuals subjected to acts by the OHR did not have an effective legal remedy against these acts. Refer-ring to the European Court of Human Rights case law, it held the Bos-nian state to be under a positive obligation to ensure judicial review even if it had transferred powers to international institutions.205 The Bilbija Judgement led to a serious conflict between the Constitutional Court and the High Representative. In overt defiance of the Court, the High Representative expressly ordered Bosnian state institutions not to implement the ruling.206 In a final attempt to enforce judicial review, the applicants turned to the European Court of Human Rights, but to no avail. In the Beriü and Bilbija cases,207 the European Court found it had no jurisdiction to review the High Representative’s powers, as he was exercising lawfully delegated Chapter VII powers of the UN Security

202 Cf. Marko, see note 10, 17 et seq.; Steiner/ Ademovic, “Article VI”, ibid.,

795 et seq., and 797 for an example of a case in which the Court later did quash a law enacted by the OHR.

203 37/ 01, unpublished Decision of 2 November 2001. Cf. Marko, see note 10, 18; Steiner/ Ademovic, “Article VI”, see note 160, 801.

204 AP 953/ 05, Bilbija and Kaliniü, Decision of 8 July 2005, paras 52 et seq., with reference to the European Court of Human Rights, Matthews v. the United Kingdom, Application No. 24833/94, Judgement of 18 February 1999, paras 29 and 32.

205 Cf. Steiner/ Ademovic, “Article VI”, see note 160, 802 et seq. 206 See OHR, “Order on the Implementation of the Decision of the Constitu-

tional Court of Bosnia and Herzegovina in the Appeal of Milorad Bilbija and others, No. AP 953/ 05 of 23 March 2007”, available at <www.ohr.int>. On the conflict see Steiner/ Ademovic, “Article VI”, ibid., 815 et seq.

207 European Court of Human Rights, Beriü et al. v. Bosnia and Herzegovina, Application Nos. 36357/04 et al., Decision of 16 October 2007; Kaliniü and Bilbija v. Bosnia and Herzegovina, Application Nos. 45541/04 and 16587/07, Decision of 13 May 2008.


Council. His acts were neither imputable to BiH nor an act falling un-der the jurisdiction of this state (arts 1 and 13 ECHR).208

The result of all this is that, as it stands, there is no judicial protec-tion against individual acts of the OHR, a situation which seems irrec-oncilable with the principle of the rule of law, given that 15 years have passed since the end of the war. In the wake of the abovementioned court rulings, the OHR has considerably reduced the employment of the Bonn-powers, and the last time a High Representative threatened to make use of them, the President of the Republika Srpska declared he was prepared to boycott his decisions. This may indicate the extent to which the continued absence of judicial protection and democratic ac-countability has damaged the OHR’s perceived legitimacy and credibil-ity and has impaired its ability to perform its functions.

In its Beriü and Bilbija Judgements on BiH, the European Court of Human Rights largely relies on, and indeed quotes, its reasoning devel-oped in the Kosovar cases of Behrami and Saramanti.209 These cases originated during the period of UN territorial administration and thus under the regime of Security Council Resolution 1244. At that time, the European Court held that it lacked jurisdiction to review actions of both NATO and UN territorial administration UNMIK, which was headed by the Special Representative of the Secretary General, because these acts were mandated by Security Council Resolution 1244 and were thus attributable exclusively to the UN Security Council acting under Chapter VII of the Charter. In independent Kosovo, the circum-stances underlying the Behrami and Saramanti cases have changed with the unilateral implementation of the Ahtisaari Plan: the Special Repre-sentative of the Secretary General has largely been replaced in practice by an International Civilian Representative. The institution of the In-ternational Civilian Office (ICO) is clearly inspired by the OHR in Bosnia,210 but its legal set-up displays some key differences: the ICO’s mandate has a double basis in the Ahtisaari Plan and the Constitution of Kosovo. Article 12 of the Plan specifies that the International Civil-ian Representative is appointed by a so-called “Steering Group” com-

208 On the cases, see P. Sena/ M. Vitucci, “The European Courts and the Secu-

rity Council: Between Dédoublement Fonctionnel and Balancing of Val-ues”, EJIL 20 (2009), 193 et seq.

209 European Court of Human Rights, Behrami and Behrami v. France and Saramati v. France, Germany and Norway, Application Nos. 71412/01 and 78166/01, Judgment of 5 May 2007.

210 Marko, see note 9, 446.


prising “key international stakeholders”. In practice, these stakeholders were France, Germany, Italy, the Russian Federation, the United King-dom, the United States, the EU and the European Commission, and NATO.211 Article 2 of Annex IX further tasks the International Civil-ian Representative to supervise the implementation of the Ahtisaari Plan and defines his powers: he is the final authority in Kosovo regard-ing the interpretation of the civilian aspects of the Plan, and is thus theoretically even in a position to review the Constitutional Court’s in-terpretation of the Constitution in as much as the constitutional provi-sions at issue must be interpreted in conformity with the Ahtisaari Plan (article 143 para. 3). In addition, the International Civilian Representa-tive is empowered to annul laws and decisions adopted by the Kosovo authorities and to remove public officials from office. What is lacking from the list, in comparison to Bosnia, is the legislative power to substi-tute the Kosovo Assembly and enact laws. The International Civilian Representative thus retains only a legislative veto.

Furthermore, in contradistinction to BiH, the Ahtisaari Plan was never included in a treaty, nor were the powers of the ICO subse-quently endorsed in a UN Security Council Resolution. Instead, the le-gally binding nature of the Plan derives from two sources: first, the Declaration of Independence of Kosovo, which contains a unilateral commitment of Kosovo as a state to abide by the plan. Kosovo thus en-tered into an obligation under international law to respect the powers of the ICO. Secondly, arts 146 and 147 of the Kosovo Constitution confirm the International Civilian Representative’s powers and require Kosovo institutions to give effect to the ICO’s decisions. In addition, article 147 explicitly prohibits any Kosovar authority to review or re-strict the ICO’s powers and their exercise. This clearly excludes any form of judicial review of the ICO’s acts by the Constitutional Court and can be seen as a direct reaction to the Bosnian Court’s attempts to control decisions by the OHR. The normative supremacy of the Ahti-saari Plan is thus complemented by an enforcement mechanism not subject to any form of judicial review. Those acts which have been sub-jected to judicial review in BiH – substituting legislation – are not within the powers of the ICO in Kosovo. In sum, the situation raises doubts about the effective interplay of the ICO with local institutions

211 R. Muharremi, “The European Union Rule of Law Mission in Kosovo

(EULEX) from the Perspective of Kosovo Constitutional Law”, ZaöRV/ HJIL 70 (2010), 357 et seq. (363).


and serious rule of law concerns and can thus hardly be qualified as a lesson learned.212

In practice, the ICO has not officially made use of its powers in its first three years. This might reflect the otherwise improved constitu-tional arrangements, but there are other reasons, too. The lack of law-making powers relegates it to a more reactive role in the legislative field, whereas executive functions are mainly performed by the European Union Rule of Law Mission EULEX. The exercise of executive – and also judicial – functions by EULEX also poses problems from the point of view of Kosovo constitutional law, which are beyond the scope of this comparison.213 Still, the existence of article 147, excluding any judi-cial review of ICO measures, is problematic with regard to article 13 ECHR. The Constitution’s clear wording leaves little interpretative space for the Kosovo Constitutional Court. The European Court of Human Rights, in turn, is prevented from hearing cases against Kosovo because it is not a member of the Council of Europe. However, several members of the “International Steering Group”, which appoint and give “guidance” to the International Civilian Representative (article 12.2 Ahtisaari Plan), are parties to the ECHR. Could these states be held accountable for acts of the ICO in Strasbourg? The European Court’s reasoning in Behrami and Saramanti, doubtful as it may be in itself,214 rests on the attribution of the respective acts to the UN and on the supremacy of Chapter VII powers of the Security Council. Unlike in Bosnia, the powers of the ICO in Kosovo were not endorsed in a Chapter VII Resolution. In practice, international actors have at-tempted to base at least the powers of EULEX on Security Council Resolution 1244,215 and such an argument might be made with regard to the ICO, which practically replaced some of the functions of the Special Representative of the Secretary-General. Yet, as the latter still exists, the better view seems to be that the ICO as an institution established by the Ahtisaari Plan and the Constitution of independent Kosovo is not cov-

212 In the same vein, Marko, see note 9, 449. 213 See on these problems, Muharremi, see note 211. 214 Critical e.g. M. Milanoviü/ T. Papiü, “As Bad as It Gets: The European

Court of Human Rights’ Behrami and Saramanti Decision and General In-ternational Law”, ICLQ 58 (2009), 267 et seq.

215 Cf. E. de Wet, “The Governance of Kosovo: Security Council Resolution 1244 and the Establishment and Functioning of Eulex”, AJIL 103 (2009), 83 et seq.


ered by Resolution 1244.216 Consequently, attribution to the UN seems far-fetched. Rather, the powers of the members of the Steering Group to appoint and guide the ICO seem to amount to quite an effective con-trol over the institution, which would justify attribution of ICO acts to them. Hence, those members of the Steering Group which are at the same time parties to the ECHR can in principle be held accountable for ICO’s acts in Strasbourg. Such accountability might not necessarily concern individual acts. Rather, these states should primarily be seen to be under a positive obligation to put a mechanism in place that satisfies the requirements of article 13 ECHR for an effective remedy against ICO acts. This is also in line with the Bosnian Constitutional Court’s reasoning in Bilbija.217 As far as Kosovar institutions are concerned, the same reasoning may be applicable by virtue of arts 22 and 53 of the Constitution in conjunction with article 13 ECHR: they require Kos-ovo institutions to work with international actors towards the estab-lishment of a review mechanism within the international governance structures themselves.

In sum, the institution of a representative of the international com-munity does not command the same appreciation as the internationali-zation of the Constitutional Courts. His existence and his powers con-stitute a major derogation to core principles of constitutionalism, the separation of powers and the access to court, without always providing a convincing compensation in terms of overcoming the ethnic division. Perhaps an evolution is possible for the Kosovar institution, but in Bosnia, the only way out seems to be to bring the mandate of the High Representative to its end.218

216 Muharremi, see note 211, doubts whether EULEX is even covered by the

invitation in the Declaration of Independence. 217 See above, IV. 2. at the beginning. 218 M. Zivanovic, “Lessons (not) learned with regard to Human Rights and

Democracy: The case study of Bosnia-Herzegovina”, in: W. Benedek (ed.), Lessons (not) learned with regard to Human Rights and Democracy. A Comparison of Bosnia and Herzegovina, Kosovo and Macedonia, 2010, 47: “The ‘culture of dominance’ and the fact that international organizations active in BiH can be regarded as part of the problem rather than the solu-tion, also represents some serious negative aspects of the ‘international di-mension’.”


V. Concluding Observations

Our comparison has focused on “ethnic” and “internationalized” ele-ments modifying classical constitutionalist principles. It highlighted that, generally speaking, these modifications have so far tended to be more problematic – in terms of legitimacy as well as governmental ef-fectiveness – in the case of BiH than in independent Kosovo. It appears that the realization of the entire program of consociational democracy, including power sharing and vetoes, at all political levels in BiH was unable to generate efficient decision making practices, in particular when combined with strong decentralization. It even seems to solidify the existing ethno-political cleavages and is opposed to ideas of plural-ism, which implies social mobility, the possibility to be part of different groups and to play different roles. Furthermore, it leaves all those who do not belong to the recognized collectives without protection and vio-lates their rights to equal democratic participation as enshrined in the ECHR.

At the same time, it would be illusory and inappropriate for consti-tutional law and scholarship to entirely neglect ethnic diversity leading to the division of society. It remains an important task for comparative constitutional scholarship to further elaborate on features of more mixed constitutional systems, which combine ethnic representation and participation with political majority and individual equality. With re-gard to BiH, the proposals for reforms towards a more mixed architec-ture are on the table and need to be put into practice, for instance through a re-organization of the two parliamentary chambers or changes to the vertical separation of powers. The Constitution of inde-pendent Kosovo has already instituted a mixed system, which finds a better normative balance between civic and ethnic elements and erects fewer hurdles to efficient decision making. What turns out as problem-atic instead is the lacking capacity, and sometimes will, to implement decisions and normative programs throughout the entire territory, which is an equally important component of governmental effective-ness.

Many of these practical problems, as well as the more or less prob-lematic normative choices, at least partly result from diverging extra-legal considerations as identified throughout our comparison, be they of military, geopolitical, demographic or historical nature. Another ove-rarching contextual factor, which we would like to emphasize in the end, concerns the formation and attitudes of constitutional elites in Kosovo and in BiH. It seems that the respective constitutional cultures


and practices have been shaped significantly by differing perceptions of “the international” and “the outside world” in the minds of those who ended up in influential constitutional positions. By the time the Kosovo Constitution came into being, many of those responsible had experi-enced migration, diaspora culture, education abroad and/or ten years of international administration. In BiH, the short period between the end of the war and the entry into force of the new Constitution did less in terms of opening towards the outside world, and many members of the elites in power tended to be more focused on national values. Thus, a more receptive attitude towards outside ideas and international experi-ences might be another enabling factor accounting for lessons learned in Kosovo.

This learning curve also extends to some aspects of “international-ized” constitutionalism: the internationalized constitution-making process in Kosovo was more representative and transparent, and the hybrid Kosovar Constitutional Court brought further improvements to the appropriate design of internationalized constitutional justice, which has already had, overall, beneficial effects in BiH. However, a more general conclusion seems to be that international intervention in the constitution-making process itself is easier to justify by the specificities of divided societies than a continued or even long-term constitutional role for international actors. In fact, it appears impossible to justify the prolonged existence of purely international, unelected constitutional organs whose mandate is not only ill-defined and unlimited in time, but also entails a severe interference into the separation of powers and is not subjected to any judicial review whatsoever. Such a construct not only implies important derogations from the classical constitutional model, but is also destructive to local ownership and may thus push further away the moment where international involvement is no more needed. The disagreements about the causes of the Bosnian malaise – constitu-tional design, ethnic divides, or precisely international interference – il-lustrate this fundamental problem: prolonged and intense international involvement makes it difficult to attribute responsibility for failures or progress and thus obscures political accountability. Constitutional scholarship is thus called upon to contribute to a theory of step-by-step disengagement of the international community and of the restoration of internal sovereignty and self-determination.

This is not, however, tantamount to saying that local elites in power should run entirely free and local populations be simply subjected to the internal workings of their divided societies, whether constitution-ally tamed or not. Rather, such a theory of internal disengagement


would have to include two complementary, and compensatory, ele-ments of a strong external role of the international community: firstly, it should insist on, and externally support, necessary processes of inter-nal constitutional reform and implementation, in order to provide the divided societies with the tools to effectively govern themselves. Sec-ondly, it should strengthen mechanisms of external oversight and fur-ther integrate the respective divided societies into the evolving, transna-tional constitutional frameworks which many other states are increas-ingly subject to – notably in Europe with the Council of Europe and the European Union. Accordingly, comparative constitutional scholar-ship may not only contribute to the debate on – internal – constitu-tional design for divided societies, but might also reflect on inter- and supranational constitutional mechanisms designed to meet the chal-lenges of divided societies.

The International Court’s Advisory Opinion on the UDI in Respect of Kosovo: Washing Away the “Foam on the Tide of Time”

Alexander Orakhelashvili *


* This article is a follow-up to my previous article on the UDI in Kosovo

“Statehood, Recognition and the United Nations System: A Unilateral Declaration of Independence in Kosovo”, published in Max Planck UNYB 12 (2008), 1 et seq. For that reason, the present article does not examine background issues of fact and law relating to Kosovo’s attempted secession, and instead focuses on points raised, or contingent upon the reasoning, in the International Court’s Opinion.

Max Planck UNYB 15 (2011)

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I. Introduction II. The Court’s Competence to Deliver the Advisory Opinion

1. Questions of Jurisdiction 2. Discretion to Deliver Advisory Opinions

III. The Court’s Construction of the Question put by the General Assembly 1. The Scope of the Question 2. The Court’s Semantics 3. The Lotus Principle and the Court’s Reasoning

IV. The UDI in Respect of Kosovo and General International Law 1. The UDI, Territorial Integrity and Claims of “Non-regulation” of Se-

cession 2. Legal Interests affected by Secession

V. Substantive Legal Questions raised before the Court but unaddressed in its Opinion 1. The Alleged Sui Generis Nature of Kosovo’s Secession and Statehood 2. Self-Determination: Internal and Remedial Theories 3. Recognition of Kosovo

VI. The UDI in Respect of Kosovo and S/RES/1244 1. The Court’s Principal Findings 2. The Nature and Interpretation of the Arrangements under

S/RES/1244 3. Interpretation by States and Interpretation by the Court 4. The Identity of Authors of the UDI and the Basis for the Legitimacy

of Provisional Institutions VII. Legal Consequences of the UDI in Respect of Kosovo VIII. Conclusion

Orakhelashvili, ICJ’s Advisory Opinion on the UDI in Respect of Kosovo

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I. Introduction

The International Court’s Advisory Opinion on the legality of the Uni-lateral Declaration of Independence (UDI) in respect of Kosovo1 has not only been awaited with great interest, but also with widely diverg-ing expectations. It was requested, argued and delivered against a back-ground that incorporates all politically contentious elements that a case before an international tribunal could ever involve.

The Court’s principal finding was that the UDI of 17 February 2008 in Kosovo did not violate international law. Having construed narrowly the question as to the lawfulness of the UDI in respect of Kosovo, put to it by the UN General Assembly, the Court fell short of pronouncing on substantive legal issues underlying the Kosovo controversy, such as secession, statehood, self-determination and recognition. The Court’s narrow interpretation of the General Assembly’s question has aroused not only criticism but also substantial misunderstanding as to what the Court actually pronounced, or even whether the Court actually pro-nounced on anything related to Kosovo’s claim to statehood.

It is obvious that, in all relevant political quarters, attempts would be made to portray the Opinion as reflecting political expectations held in those quarters. Legal reasoning is, however, more complex, nuanced and specialised than common sense intuition and political expectation. As Vaughan Lowe has most pertinently observed, “Legal categories are not the categories of ordinary perception; they are superimposed upon the categories of ordinary perception;” because “legal argument nar-rows down the issue, and excludes as irrelevant a host of surrounding circumstances.”2

This simple distinction becomes even more compelling if one con-siders that the importance of the Advisory Opinion on Kosovo is not just its focus on one of the greatest international legal controversies of our time, but also the connection of its reasoning with foundational le-gal concepts on which the international legal system rests, such as the overall domain of international law, legal standing of non-state actors,

1 Accordance with International Law of the Unilateral Declaration of Inde-

pendence in Respect of Kosovo, General List No. 141, Advisory Opinion of 22 July 2010 (hereinafter Opinion).

2 A.V. Lowe, “The Role of Equity”, Austr. Yb. Int’l L. 12 (1992), 57 et seq. (72).


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interpretation, validity and opposability of international legal acts and transactions. These foundational concepts and categories are not sys-temically spelt out in the Opinion, yet every single finding of the Court is contingent upon them, and obscuring them almost inevitably risks misunderstanding the actual content and scope of the Opinion, i.e. tak-ing it for what it is not.

II. The Court’s Competence to Deliver the Advisory Opinion

1. Questions of Jurisdiction

The Court’s advisory jurisdiction is premised on Article 65 of its Stat-ute, according to which “The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.” This must be read in context with Article 96 para. 1 of the UN Charter, according to which “The General Assembly or the Se-curity Council may request the International Court of Justice to give an advisory opinion on any legal question.” The implications are crystal clear: the legality of Kosovo’s UDI is a legal question;3 the General As-sembly had put that question to the Court; the Court was therefore ex-pected to respond favourably. The General Assembly’s standing in this area is different to that of specialised agencies. Unlike specialised agen-cies, the Assembly does not have to demonstrate its special interest in the subject-matter of the question it requests the Court’s Opinion on; the request can be on “any legal question.”4 All pertinent provisions of the Charter and the Statute thus required from the Court to answer this question without any further analysis of jurisdiction.

However, presumably to respond to submissions raised by a num-ber of states during written and oral proceedings, the Court specified that it “has sometimes in the past given certain indications as to the re-

3 Legal questions are the ones that are “framed in terms of law and raise

problems of international law”, and “are by their very nature susceptible of a reply based on law”, see Western Sahara, Advisory Opinion, ICJ Reports 1975, 12 et seq. (18 et seq.).

4 Which is different from the arrangement of jurisdiction of specialised agen-cies under Article 96 para. 2 of the UN Charter which requires that the question asked must fall within the requesting agencies’ competence.


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lationship between the question which is the subject of a request for an Advisory Opinion and the activities of the General Assembly.”5 Legal reasons as to why the Court had to follow that route are not completely unclear. While the Court adopted the right approach to assert its juris-diction, its engagement with questions not crucially impacting its juris-diction over the General Assembly’s request does not constitute a good exercise in judicial economy. By engaging with questions not essential to its jurisdiction, the Court unnecessarily exposed itself to criticisms of its handling of the constitutional role of the General Assembly and Se-curity Council. It was further at odds with the requirements of judicial economy that the Court engaged with the same question of the role of principal organs of the United Nations in two different contexts: that of jurisdiction and that of discretion.

Nevertheless, for those who would criticise the Court for its han-dling of this constitutional matter, it should be emphasised that the Court had actually decided this point in line with its previous jurisdic-tion regarding the relationship between the General Assembly and Se-curity Council, as was most prominently specified in the Certain Ex-penses Case.6 The matter was rightly reduced to the interpretation of Arts 10, 11 and 12 of the Charter, the cumulative effect of which is that the General Assembly remains competent to deal with any question of international peace and security unless the Security Council is exercis-ing its Chapter VII functions in relation to that situation. While the Council was still seized of the Kosovo question, and therefore,

“while Article 12 may limit the scope of the action which the Gen-eral Assembly may take subsequent to its receipt of the Court’s opinion (a matter on which it is unnecessary for the Court to decide in the present context), it does not in itself limit the authorization to request an advisory opinion which is conferred upon the General Assembly by Article 96, paragraph 1.” However, the question whether the delimitation of the respective

powers between the Security Council and the General Assembly re-quired from the Court to decline to exercise its jurisdiction to render an Advisory Opinion was arguably another matter relating to its discre-

5 Opinion, see note 1, para. 21. 6 Certain Expenses of the United Nations (Article 17, paragraph 2, of the

Charter), Advisory Opinion, ICJ Reports 1962, 151 et seq. (The principal relevant point of this case was that the Assembly can act in all areas that are not within the Security Council’s exclusive zone of responsibility, e.g. Chapter VII enforcement measures.).


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tion to render Advisory Opinions.7 The Court also faced submissions as to potential political motives underlying the request for the Advisory Opinion and political repercussions it might produce. In line with its long-standing and consistent jurisprudence, the Court thus dismissed the relevance of the “political questions” doctrine, by observing that,

“the fact that a question has political aspects does not suffice to de-prive it of its character as a legal question … . Whatever its political aspects, the Court cannot refuse to respond to the legal elements of a question which invites it to discharge an essentially judicial task, namely, in the present case, an assessment of an act by reference to international law. The Court ... is not concerned with the political nature of the motives which may have inspired the request or the political implications which its opinion might have ... ”8 The Court’s past jurisprudence on the matter has been so clear and

consistent that it would not have allowed the Court to reach any differ-ent outcome in this case.9

2. Discretion to Deliver Advisory Opinions

The Court’s treatment of its discretion to render Advisory Opinions is premised on the statutory basis for that discretion as expressed in Arti-cle 65 of the Statute, specifying that the Court may render Advisory Opinions.10 Furthermore, this discretion is not a matter of whim and free exercise; it is functional, as the Court put it, “to protect the integ-

7 Opinion, see note 1, para. 24; more specifically, the Court observed that the

General Assembly had sufficient interest in the Kosovo matter which it for years kept on its agenda and approved the UNMIK budget, paras 40-46.

8 Opinion, see note 1, para. 27. 9 For an overview and analysis of this past jurisprudence see A. Orakhelash-

vili, Interpretation of Acts and Rules in Public International Law, 2008, 29 et seq.

10 Opinion, see note 1, para. 29. This reflects the approach of Judge ad hoc Sir Robert Jennings in the Lockerbie Case, that “all discretionary powers of lawful decision-making are necessarily derived from the law, and are there-fore governed and qualified by the law. This must be so if only because the sole authority of such decisions flows itself from the law. It is not logically possible to claim to represent the power and authority of the law, and at the same time, claim to be above the law.” Lockerbie (Libya v. UK), Judgment, Dissenting Opinion of Judge ad hoc Sir Robert Jennings, ICJ Reports 1998, 99 et seq. (110).


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rity of the Court’s judicial function and its nature as the principal judi-cial organ of the United Nations.” This functional nature of discretion then generates a presumption in favour of rendering an Advisory Opin-ion whenever the Court is properly requested to do so. This presump-tion is expressed in, and strengthened by, the Court’s long-standing po-sition that the Court’s answer to a request for an Advisory Opinion represents its participation in the activities of the United Nations, and, “in principle, should not be refused.” There must be “compelling rea-sons for it to refuse to respond to the request from the General Assem-bly.”11

As part of its task to maintain the integrity of its judicial function which consists in the careful application of law to facts as far as the available scope of judicial jurisdiction allows for this, the Court here again, in relation to the discretion argument, was unwilling to decline rendering the Advisory Opinion because it could have unpredictable political consequences. Therefore, the Court did not,

“consider that it should refuse to respond to the General Assembly’s request on the basis of suggestions, advanced by some of those par-ticipating in the proceedings, that its opinion might lead to adverse political consequences. Just as the Court cannot substitute its own assessment for that of the requesting organ in respect of whether its opinion will be useful to that organ, it cannot – in particular where there is no basis on which to make such an assessment – substitute its own view as to whether an opinion would be likely to have an adverse effect.”12 It is submitted that this was the only choice available to the Court.

Quite apart from principles affirmed in its previous jurisprudence, the Court, had it refused to render the Opinion, would have substantially compromised its judicial function; for any Advisory Opinion it renders is likely to have serious political repercussions. Allowing such factors any relevance in its decision-making, the Court would have contra-dicted the clearly established standard that the grounds for declining to render an Advisory Opinion have to be so exceptional that they can re-verse the strong presumption in favour of rendering the Opinion. In its previous cases the Court had never found such exceptional reasons whenever asked by a principal organ to deliver an Opinion, and it was from the outset obvious that the Kosovo UDI situation had no such characteristics to become the first case with the opposite effect. 11 Opinion, see note 1, paras 28-31. 12 Opinion, ibid., para. 35.


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These considerations no doubt guided the Court’s rejection of the argument that the Security Council’s pre-eminent role in the Kosovo matter justified the use of the Court’s discretion to decline rendering the Opinion. As the Court put it,

“the fact that it will necessarily have to interpret and apply the pro-visions of Security Council resolution 1244 (1999) in the course of answering the question put by the General Assembly does not con-stitute a compelling reason not to respond to that question. ... Where, as here, the General Assembly has a legitimate interest in the answer to a question, the fact that that answer may turn, in part, on a decision of the Security Council is not sufficient to justify the Court in declining to give its opinion to the General Assembly.”13

III. The Court’s Construction of the Question put by the General Assembly

1. The Scope of the Question

The Court addressed the legality of the UDI in respect of Kosovo by adopting what was widely seen as a narrow interpretation of the ques-tion put to the Court by the General Assembly, as to whether the UDI of 17 February 2008 in respect of Kosovo was in accordance with inter-national law. At the outset, the Court underlined the range of choices it has in relation to construing questions put to it by other principal or-gans, as confirmed in its previous jurisprudence: to depart from the lan-guage of the question where it was not adequately formulated; to de-termine, on the basis of its examination of the background to the re-quest, that the request did not reflect the “legal questions really in is-sue”; or where the question asked is unclear or vague, to clarify the question before giving its Opinion.14 In the past, the Court had modi-fied the scope of questions put to it because answering them on literal terms would be “actually misleading as to the legal rules applicable to the matter under consideration.” The Court would not discharge its ob-ligation if it “did not take into consideration all the pertinent legal is-sues involved in the matter to which the questions are addressed.”15 In 13 Opinion, ibid., paras 46-47. 14 Opinion, ibid., para. 50. 15 Interpretation of the Agreement of 25 March 1951 between the WHO and

Egypt, Advisory Opinion, ICJ Reports 1980, 73 et seq. (88-89).


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another case, the Court stated that “it might be possible to give a reply to the question on its own terms, but the reply would not appear to re-solve the questions really in issue.”16

In the case at hand, factors militating in favour of a broader con-struction of the General Assembly’s question did not go as far as to let the factors involved in previous cases materialise. The Court’s response to the question as to the legality of the UDI specifically would not be misleading as to the broader legal context; nor would the Court’s re-sponse fail to resolve “the questions really at issue.” For these questions “at issue” are those that the General Assembly specified in its request and the Court would not be justified in re-inventing the terms of these questions. The requesting organ has the right to identify the scope of the question in the way it prefers it to be answered. According to the Court, this “narrow” way of putting the question clearly specified the limits and scope of the task the Court had to embark upon, for,

“it is entirely possible for a particular act – such as a unilateral decla-ration of independence – not to be in violation of international law without necessarily constituting the exercise of a right conferred by it. The Court has been asked for an opinion on the first point, not the second.”17 In other words, the Court would be justified in re-formulating

questions put to it if answering them in literal terms would misrepre-sent the applicable legal position; it would not be justified in re-formulating questions if answering them in their literal terms would not expressly clarify the entire legal position across the board, but would focus on some parts of it. While principal organs and specialised agen-cies have no right to ask the Court to misrepresent the legal position in question (as this would contradict Article 38 of the Court’s Statute), it is fully within their legal rights to request the Court to pronounce on some aspects of that legal position as opposed to addressing it in its en-tirety. While there is no one-size solution to fit all requests for Advi-sory Opinions, the Court’s treatment of the General Assembly’s ques-tion did not exceed the margin the Court allowed itself in other similar instances. The outcome may have been surprising in some, indeed most, quarters, but it is certainly not outlandish if the Court’s past jurispru-dence is considered.

16 Application for Review of Judgment No. 273 of the UN Administrative

Tribunal, Advisory Opinion, ICJ Reports 1982, 325 et seq. (326 et seq.). 17 Opinion, see note 1, para. 56.


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The Court had to examine the General Assembly’s question against the background of general international law, and of the interim regime of governance established in relation to Kosovo by the Security Coun-cil in its resolution S/RES/1244 (1999) of 10 June 1999. It is important to see whether the legality of Kosovo’s UDI under general international law and under the legal regime created by and pursuant to S/RES/1244 are separate questions. Empirically it is possible to examine these ques-tions separately. Nevertheless, these two issues are conceptually and normatively related. The reason why the Security Council preserved, under S/RES/1244, territorial integrity of the Federal Republic of Yugoslavia (FRY), and imposed an interim regime as opposed to a final status settlement, is that this decision has reflected the legal position under general international law, that a part of territory of the state can-not secede without the consent of that state. S/RES/1244 constitutes a lex specialis in relation to general international law, as the Court has confirmed; but it does so not by modifying the applicable lex generalis, but by preserving the legal position under it and complementing it by interim arrangements regarding the administration of Kosovo until the final settlement is achieved, which point was also confirmed in the Ad-visory Opinion. It is therefore inevitable that the assessment of lawful-ness of Kosovo’s UDI under general international law is going to be the same as its assessment under the legal regime established under and pur-suant to S/RES/1244. This also explains the Court’s approach to shift the focus from substantive legality of the UDI to the identity of its au-thors in relation to both the above areas.

2. The Court’s Semantics

The Court’s semantics while dealing with the question of legality of the UDI in respect of Kosovo illustrate that the Court was unwilling to ex-tend its reasoning beyond the “narrow” question put to it, and wishes to prevent its own Opinion from being presented as having generated or approved the legal consequences on which the Court could not pro-nounce. It is noteworthy that the Opinion’s title refers to a UDI “in re-spect of Kosovo” not by or of Kosovo, which manifests the Court’s care-ful position to regard this UDI as a fact, without prejudice to whether the entity that has issued the UDI was entitled to do so, due to its being a valid representative of the people of Kosovo; or even if that were the case, the UDI thus issued could be validly regarded as the one issued by


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the entity that is entitled to do so under international law, for instance by virtue of being a self-determination unit.

The Court was asked by the General Assembly whether the Kosovo UDI was “in accordance with” international law, while the relevant op-erative paragraph in the Court’s Opinion specifies that the declaration of independence “did not violate” international law. This may seem a matter purely of semantics and a mere difference in words. But it also has practical significance for understanding the Opinion’s actual ration-ale and impact, how it was received by states and how it should have been understood by them. In the Security Council debate after the Opinion was rendered, the Representative of the United Kingdom,

“welcome[d] the recent advisory opinion of the International Court of Justice, which, in response to the question put to it by the Gen-eral Assembly, confirmed that Kosovo’s declaration of independence was in accordance with international law.”18 However, as the General Assembly’s question was about the “accor-

dance with” international law of the Kosovo UDI, it is difficult to see why the Court did not use the same wording in the relevant operative paragraph of its Opinion, unless some compelling considerations in-duced it to use a different wording. The entire context of the Advisory Opinion militates in favour of assuming that this allegedly technical change of words may be due to far broader systemic legal considera-tions.19

The key factor is that, whether or not one subscribes to the Lotus style presumption of sovereign freedom of states to act unless interna-tional law imposes a prohibition,20 it is not really disputable that, most of the time, not violating international law is the same as being in accor-dance with it. In the Lotus Case there was found no prohibitive rule on Turkey’s jurisdiction contradicting which would put that state in breach of international law, and hence its exercise of jurisdiction was deemed to be in accordance with international law.21 Along similar lines, if a 18 Doc. S/PV.6367, 16 (emphasis added); Kosovo’s representative claimed that

the Court found the UDI to be in full compliance with S/RES/1244, ibid., 24.

19 This change of words has to be understood in line with what the Court said in para. 56 of the Opinion, see note 1.

20 This author does subscribe to this presumption, for details see Orakhelash-vili, see note 9, Chapter 2; but at the same time, there is a significant body of opinion that does not.

21 Lotus Case, PCIJ (1927), Series A, No. 10, 18 et seq.


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warship carries out its innocent passage in foreign territorial waters in accordance with the restrictions imposed by the 1982 UN Convention on the Law of the Sea, then it can be said that this passage does not vio-late international law.

But the above model is most suitable to situations where the rele-vant act, decision or conduct is produced and implemented within the inter-state realm of the international legal system. There can be multiple acts and actions carried out within the domestic jurisdiction of states – raising taxes, changing the electoral system, or introducing national ser-vice – which do not violate international law because they do not enter its realm; it cannot, however, be said, that these acts are in accordance with international law, because international law is simply not con-cerned with them. Some initially domestic acts and decisions, such as conferral of nationality or delimitation of territorial waters, can be said to be in accordance with international law, because eventually they do touch upon the realm of inter-state legal relations.22 They transcend the domestic legal realm to which they initially owe their existence, and impact the legal position internationally.

It is precisely this difference that explains the Court’s use of particu-lar words. As the Court’s reasoning indicated, and as shown below in greater detail, the UDI was not seen as having effect within the interna-tional legal system; it was neither meant to take effect within the rele-vant frameworks of international law, nor had actually done so. There-fore it was simply not an act that could or could not be in accordance with international law; it was, however, an act that did not violate inter-national law, simply because it had no effect within or implications for the relevant frameworks of this legal system. Furthermore, the UDI be-ing in accordance with international law would mean that the authors of the UDI acted in accordance with international law when declaring the independence; the UDI not violating international law is more neutral and focuses more on the outcome than on assessing substantive terms of the legality and propriety of the conduct of the authors of the UDI, which question the Court has excluded from its consideration.

22 As was discussed by the International Court in the Fisheries and Notte-

bohm Cases, on the limits of territorial sea and conferral of nationality, re-spectively; see Fisheries (UK v. Norway), Judgment, ICJ Reports 1951, 116 et seq.; Nottebohm (Liechtenstein v. Guatemala), Judgment, ICJ Reports, 1955, 4 et seq. (22 et seq.).


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3. The Lotus Principle and the Court’s Reasoning

Judge Simma has, in particular, criticised the Court’s approach that the UDI did not breach general international law by suggesting that this approach was based on the extensive understanding of the Lotus princi-ple that anything which is not expressly prohibited is permitted.23 There are, however, two points to be made in relation to this criticism. In the first place, the Court’s approach cannot be seen to apply the Lo-tus approach to Kosovo, given that the Lotus approach applies to the actions of states, as opposed to actions of an entity that is not a state and attempts either to claim being a state or to become a state. In the second place, the Court specified that the Kosovo UDI did not ratione personae conflict with general international law; it did not say that the terms of the UDI, and the ends it purported to achieve, were ratione materiae compatible with international law just because it was not spe-cifically outlawed;24 the Court was not judging the compliance of the substance of the declaration with general international law, and it was not concerned with the substantive legality of the terms of the UDI. The legality of actions and positions of third states taken within the realm of the international legal system – at the inter-state level – and premised on the UDI made by Kosovo authorities was, quite simply, beyond the Court’s judicial focus in this case. The Court cannot thus be seen as applying the Lotus approach to Kosovo in this respect either.

IV. The UDI in Respect of Kosovo and General International Law

1. The UDI, Territorial Integrity and Claims of “Non-regulation” of Secession

The Court’s conclusion was that the UDI in respect of Kosovo did not violate general international law. The Court’s reasoning conveys an im-pression of incompleteness, given that it assesses the legality of a UDI without focusing on antecedent questions of territorial integrity, self-determination and secession. The Court indeed stated its intention to 23 Cf. Declaration of Judge Simma, see note 1, para. 2. 24 In this respect the Court’s reasoning differs from the way some govern-

ments argued the matter before it, see e.g. Austrian Written Statement, see note 1, para. 34.


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avoid pronouncing on these, but then fell short of specifying an alterna-tive basis for the UDI under general international law. Precisely this factor has been responsible for misunderstandings regarding the Court’s position on the legality of the UDI in the light of general international law. The only substantive legal question the Court engaged is the prin-ciple of the territorial integrity of states, which the Court concluded did not directly apply to, and prohibit, the UDI made in Kosovo. Accord-ing to the Court’s Opinion, “the scope of the principle of the territorial integrity is confined to the sphere of relations between States.”25

To illustrate, Judge Bennouna’s Dissent understood the Court’s stance on general international law in that “according to the Opinion, general international law is inoperative in this area and United Nations law does not cover the situation the Court has chosen to consider: that of a declaration arising in an indeterminate legal order.”26 But the Court did not say that there is no general international law applicable to situa-tions where UDIs are made; it merely said that general international law, quite separately from the substantive lawfulness or permissibility of a unilateral secession, has simply nothing to say specifically in rela-tion to the conduct of actors such as the Kosovo Albanian leadership, including their declaration of independence.

This is no doubt confusing not least because, in the absence of speci-fication of alternative criteria of the legality of UDIs, the Court’s ap-proach may seem to uphold the idea that there is a gap in this area of the international legal system. But this would be an illusory impression, for the Court merely addresses part of the legal position. Moreover, if one has a careful look at the Advisory Opinion, the awkwardness of the Court’s silence on the pertinent questions of general international law can presumably be mitigated by its treatment of S/RES/1244 as lex spe-cialis, in relation to which who as opposed to what provided the key for the Court’s approach. On a more general plane, the Court’s narrow treatment of the General Assembly’s question means that the Court has lent its support to views that secession and response to it is, as such, un-regulated under international law.

Similarly, Judge Skotnikov’s concerns with the majority’s wording that general international law “contains no prohibition” on UDIs are understandable; for, if misunderstood, this statement can indeed have “inflammatory effect.”27 But the Court’s approach can be explained by 25 Opinion, see note 1, para. 80. 26 Dissenting Opinion of Judge Bennouna, ibid., para. 68. 27 Dissenting Opinion of Judge Skotnikov, ibid., para. 17.


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considerations stressed in Norway’s submission that declarations of in-dependence are “not, as such, the object of regulation by public interna-tional law.”28 A UDI does not create a state, it is not among the criteria of statehood as specified in the Montevideo Convention; instead, its le-gal existence and validity is consequential upon the attainment of the requirements of statehood by the entity in question. If an entity clears factual and legal requirements of statehood including the entitlement to a valid secession, it can validly declare independence; if not, then not. The UDI will not on its own constitute an entity as a state or otherwise add to its status. It may therefore be understandable that international law contains no prohibition on UDIs, for there can be little reason for prohibiting an act that on its own can produce no legal effect.

In terms of the relevance of the principle of territorial integrity, as France has most pertinently submitted to the Court,

“the principle of territorial integrity, as conceived by the United Na-tions Charter, excludes any foreign intervention designed to break up a State, including by providing armed support to a secessionist movement; but that certainly does not imply that international law condemns (or, indeed, encourages) secession per se.”29 A similar approach has been voiced by Michael Bothe, observing

that “Declarations of independence are not prohibited. But states may not recognise a secession before it is effectively established. A prema-ture recognition constitutes a forbidden intervention into the internal affairs of another State.”30 Therefore, the principle of territorial integ-rity does not as such prohibit UDIs; what it does prohibit, however, is the action by a state to procure, foster or support, within the territory of another state, such UDIs and entities that consequently claim state-hood through secession.

According to Crawford, for international law to prohibit secession, it would have to address the seceding entity, which it does not.31 Fur-thermore, secession is “a legally neutral act the consequences of which

28 Norway’s Written Statement, ibid., 5 (para. 10) (Norway’s position was ac-

tually referred to by Judge Skotnikov, see above). 29 French Written Statement, ibid., 27 (para. 2.6) (emphasis original). 30 M. Bothe, “Kosovo – So What? The Holding of the International Court of

Justice is not the Last Word on Kosovo’s Independence”, German Law Journal 11 (2010), 837 et seq. (839).

31 Report by J. Crawford, in: A.F. Bayefsky (ed.), Self-Determination in In-ternational Law: Quebec and Lessons Learned, 2000, 153 et seq. (160-161).


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are regulated internationally.”32 This observation offers a correct start-ing-point, and it does not go as far as the thesis that secession is neutral as has been advocated by Franck, among others, to the effect that by virtue of its “neutrality” and of not being prohibited, secession is per-mitted under international law.33

However, the “neutrality” of secession cannot be used to generate or modify rights and obligations on the international plane the way Franck advocates it, for in that case secession would no longer be neutral. While it may be right that international law is silent on secession be-cause it does not address the seceding entity, taking the “neutrality” thesis any further would require taking another – unsubstantiated – step of reasoning that by virtue of attempting or effecting such “neu-tral” secession the seceding entity, so far unaddressed by and unrecog-nisable within the international legal system, has, now that it has se-ceded, acquired the standing within that very same legal system. This version of “neutral” secession essentially projects the right to secede for every potential seceding entity even before it secedes.

The difference between Crawford’s and Franck’s treatments of the problem of secession is that Franck, unlike Crawford, takes matters un-justifiably far by attempting to translate the “neutrality” of secession into a potential statehood, international legal status of the seceding en-tity, and entitlements of third states to recognise the seceding entity and

32 J. Crawford, Creation of States in International Law, 2006, 390. 33 Franck argues that international law permits and does not prohibit unilat-

eral secession, Report by T. Franck, in: Bayefsky, see note 31, 75 et seq. (82-83); elsewhere, in his Hague Lectures, Franck has advocated a view of se-cession with conclusions that are mutually exclusive and cannot enable us to reach any consistent conclusion on this matter, see T. Franck, “Fairness in the International Legal and Institutional System (General Course on Public International Law)”, RdC 240 (1993), 13 et seq. In one place, Franck argued, focusing on the ICCPR, among others, that “a cultural, ethnic or racial group may secede, but there is no right in law to do so. The law is es-sentially silent on secession, neither mandating nor prohibiting it, per se”, ibid., 106 (emphasis original), and 141. Later on it is argued that “nothing in [the ICCPR] or any other international text prohibits secession”, ibid., 135 (emphasis original). Then it is suggested that “the law will neither pro-hibit nor authorize secession, except in the context of any lingering decolo-nization,” ibid., 137. Franck then proceeds to suggest that “the interna-tional system does not prohibit secession. It will extend recognition to a se-cessionist territory and government if (a) that Government has demon-strated effective continuous control over its territory ...”, ibid., 146.


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take up legal relations with it. This doctrinal distinction can conceptu-ally, even if indirectly, be instructive to understand how the Interna-tional Court was able to isolate the question of the UDI from other substantive questions of law.

In actual terms, the gist of the international legal position on this matter, also underlying the International Court’s approach, is that while there is no reason for international law to prohibit secession and an UDI before it happens, after it happens, the reality created by it be-comes a matter regulated by international law, an inter-state matter, ex-emplified above all by the duty of states not to disrupt each others’ ter-ritorial integrity and consequently not to take up legal relations with the seceding entity. The inter-state character of the problem is illus-trated by the question whether third states can, without the parent state’s consent, recognise the seceding entity, conclude treaties, establish diplomatic relations or trade with it. All international law is concerned with is the relations between the parent state and third states. Unless and until an attempt at secession crosses the threshold to interfere with those inter-state relations, international law has no reason to be con-cerned with it, for the background position remains that domestic re-bellion or irredentism is an internal matter. In other words, interna-tional law’s non-regulation of secession does not equate to its approval, still less to its approval of legal relations between the seceding entity and third states, but merely signifies its abstention from regulating an event which has not yet been raised to the level of producing an impact within the international legal system.

To illustrate further, if Scotland or the Basque country declare inde-pendence from the United Kingdom and Spain, respectively, these dec-larations of independence will not, in themselves, violate international law, if only because they would not be displayed in the sphere to which international law applies. However, if third states decide to recognise Scotland or the Basque country and establish diplomatic relations or conclude agreements with them, it is at this point that the assessment of the legality of these actions in the light of territorial integrity of parent states would become relevant. Unless and until the actions and posi-tions of third states come into play, international law is neither affected nor involved, and hence there can be no question of its violation. But it would be another additional and qualitatively different step too far to argue that once the actions and positions of third states in relation to the secessionist entity come into play, international law still provides no guidance of assessing the legality of those actions and positions and of


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dealing with them.34 The Court’s Opinion indicates nothing of that kind.

2. Legal Interests affected by Secession

In substantive terms, legal consequences of a unilateral secession under international law have to be differentiated according to the legal context of particular instances of secession. Ordinary cases of secession are a matter between the parent state and third states that attempt to enter into relations with the secessionist entity. Any compromise solution is possible in such cases, up to the point of independence, if the parent state validates it by its consent. The other type of cases involves public order illegalities consisting in breach of peremptory norms (jus cogens), which are subject to the duty of non-recognition. If secession has been effected through the use of force, genocide, ethnic cleansing, racial dis-crimination, or a breach of the principle of self-determination, it shall have no validity. Any recognition granted to the entity thus established would be invalid as well, and subject to a duty to revoke it.35

It is pertinent to see within which of the two above categories the Kosovo UDI falls. As the Court has pointed out, the Security Council has kept silent in response to the UDI in Kosovo, unlike in other cases such as that of Northern Cyprus where the independence was declared subsequent to a breach of a jus cogens rule.36 It is arguable that the Kos-ovo secession attempt and the UDI was not procured by a breach of jus cogens. The NATO attack against the FRY in 1999 was certainly a breach of jus cogens, having been overwhelmingly disapproved by the international community as action violating the prohibition of the use of force.37 But the intention behind and effect of that breach was not to 34 In that sense, and after crossing that line, secession is indeed governed by

international law. For a similar reasoning developed earlier see Orakhelash-vili, Max Planck UNYB 12 (2008), 12-14.

35 See in general A. Orakhelashvili, Peremptory Norms, 2006, Chapter 11. 36 Opinion, see note 1, para. 81. 37 Cf. Ministerial Declaration of the Ministers for Foreign Affairs of the

Group of 77 of 24 September 1999 and a Declaration by the Heads of State and Government of the Non-Aligned States (115 states), dated February 2003, rejecting the so-called humanitarian intervention; cf. also I. Brownlie, Principles of Public International Law, 2008, 744; Statement by the Rio Group, Letter dated 26 March 1999 from the Permanent Representative of Mexico to the United Nations addressed to the Secretary-General, Doc.


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procure a further breach to forcibly disrupt Yugoslavia’s territorial in-tegrity, nor was the secession attempt and the UDI a consequence that NATO’s attack against the FRY should have inherently entailed. Apart from the collective act of disclaiming such intention and effect through the adoption of S/RES/1244 in 1999, the consistent view of states and the United Nations, up to the point of drawing up the Ahtisaari Plan in 2007, had been that the solution to the Kosovo crisis should be consen-sual and no unilateral attempt to effect status determination would be acceptable.38

Consequently, experience has proved that the UDI in 2008 has not been an inherent consequence of the 1999 NATO armed attack – the way the Turkish invasion in Cyprus eventually procured the UDI in the Turkish Republic of Northern Cyprus – because for years after the NATO armed attack no claim was made that Kosovo constituted an in-dependent state; instead a provisional administration regime was main-tained for almost a decade afterwards, on the condition of preserving the fall-back sovereignty of the FRY/Serbia.

The Court in its Opinion alluded to a number of cases where a breach of jus cogens was involved, such as the UDI by the white unrep-resentative and racist regime in Southern Rhodesia, to which the Secu-rity Council reacted in strongest possible terms, denoting the UDI as null and void. In the first place, there was in that case an obvious con-nection between the breach of the non-discrimination principle as a rule of jus cogens and the UDI; in the second place, none of the permanent members of the Security Council were keen to perpetuate the Smith re-gime. Had one or more permanent members blocked the relevant reso-lution on the Rhodesian UDI – as would certainly have been the case had a similar resolution been tabled in the Council regarding the Kos-ovo UDI – hardly anyone would seriously argue that, due to that con-templated or actual veto, the legal landscape regarding the Rhodesian UDI has been altered and it can now be recognised as lawful. Indeed the legality or opposability of secession and UDI is not contingent on the position that the Security Council takes in relation to it39 – it is not the Council’s role to make and amend legal positions. Its role is to take

A/53/884, S/1999/347, 2; see also Doc. S/PV.3988 of 23 March 1999, for the positions of India and China.

38 See below Part VI. 39 See for greater detail, Orakhelashvili, see note 35, Chapter 14.


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effective measures in relation to threats to and breaches of peace as and when they arise.40

V. Substantive Legal Questions raised before the Court but unaddressed in its Opinion

1. The Alleged Sui Generis Nature of Kosovo’s Secession and Statehood

The question as to whether the Kosovo case is special and should not set a precedent for future cases of secession is broader than could be covered by examining the General Assembly’s question as the Court has construed it.41 Addressing the sui generis question would have led the Court to examine the complex questions of statehood, self-determination and secession, apply these concepts to the situation in Kosovo and then see if its situation was special in any way. The dispar-ity of this approach from the Court’s own approach is illustrated in the submission of the United Kingdom that,

“the United Kingdom considers that it will be important that the Court state clearly that developments concerning Kosovo are sui generis, that Kosovo’s independence [not just the UDI] is funda-mentally contingent on its facts, and that these developments do not create a precedent for any other situation.”42

40 Arts 1 and 24 of the UN Charter. 41 During the General Assembly debates regarding the request for the Court’s

Advisory Opinion, the Singapore Representative has specified that “Singa-pore has not, to date, supported Kosovo’s unilateral declaration of inde-pendence, as we are concerned about the precedent that it could set in other parts of the world,” Doc. A/63/PV.22, 15; Albania argued that “Kosovo in and of itself is not a precedent,” ibid., 4; France argued that “the independ-ence of Kosovo is thus a sui generis case that does not call into question the issues of sovereignty and territorial integrity that lie at the very core of in-ternational relations,” ibid., 8 (emphasis original).

42 Written Statement of the United Kingdom, see note 1, 16 (para. 0.27) (em-phasis original); see also the German Written Statement, ibid., 26, 32-37 (linking this question with the internal self-determination thesis related to the oppression of a minority by the government). This actually undermines the sui generis thesis, because any minority that gets oppressed would be-come a sui generis case of secession. This is essentially an assertion of a pu-


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Such conclusion was going to be impossible if the Court was to iso-late, as it did, the question of the UDI from other substantive legal questions arising from the Kosovo situation. The Opinion thus suggests nothing indicative of the sui generis nature of Kosovo; its correct un-derstanding instead is that UDIs, made wherever and by whomever, do not on their own violate international law.

The fundamental idea behind any legal system is that rules and prin-ciples it generates should consistently apply to facts that fall within the scope of those rules and principles, unless the legal system itself admits an exception for a particular situation. The thesis of Kosovo as a sui generis entity and situation is inevitably premised on the understanding that, on a general plane, international law regards unilateral secession as unacceptable and intolerable. Admitting exceptions from a generally recognised legal position needs to conform to the modes and proce-dures admitted by the legal system in question; in some legal systems legislature can adopt a private statute and exempt a particular situation from the regular legal framework. For a consensual legal system which international law inevitably is, any exception from the underlying gen-eral legal position has to be established either by a general principle that will exempt situations of a particular kind from that general legal posi-tion and create a lex specialis; or by the general agreement among states that the relevant situation such as Kosovo constitutes, in casu, a special situation and is exempted from the underlying general legal position that regards unilateral secession as unacceptable. The condition of a state and United Nations practice over the past two decades does not allow for either a general principle or an in casu agreement to regard Kosovo as a special case to be identified. It is precisely for this reason that the argument that Kosovo is a sui generis entity or situation has, from the outset, been unsustainable and unpersuasive.

The fact of the matter is that pro-Kosovo governments, by their per-sistent emphasis on the sui generis nature of the Kosovo situation, have undermined the basis on which Kosovo’s independence could be justi-fied under the regular criteria of statehood and secession. Claiming that an entity is sui generis is premised on disclaiming that entity’s legal standing under the regular legal framework.

tative general principle relating to secession entitlements, as opposed to jus-tifying a sui generis nature of a particular situation.


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2. Self-Determination: Internal and Remedial Theories

Had the Court engaged with the claims that Kosovo is entitled to self-determination, it would have had to clarify beforehand how, if Kosovo is a self-determination unit entitled to independence, was this very posi-tion over years, almost right up to the point of making submissions to the International Court, not argued or emphasised by the Security Council, the Contact Group, or even by the governments that now support Kosovo’s independence. The self-determination claim is any-way foreclosed by the legal position that is stated in the so-called Friendly Relations Declaration (A/RES/2625 (XXV) of 24 October 1970), which does not admit the legality of unilateral secession on the basis of the so-called internal or remedial theories of secession and self-determination. The Court wisely avoided engaging those theories, for basing the outcome of the case on these theories would inevitably have required the Court to perform an undoable task, namely explain and give reasons for the legal position stated in the Friendly Relations Dec-laration.

3. Recognition of Kosovo

By now about 70 states have recognised Kosovo as an independent state. But the validity and legality of these recognitions is questionable, for they fail to clear two important obstacles. In the first place, recogni-tion does not constitute a state, nor is it among the criteria of statehood. Unless the aspirant entity is established in full compliance with factual and legal criteria of statehood, recognition cannot confer a valid state-hood to it. In addition, the legal value of recognitions by several states, above all those which are deemed to be of high political importance, is doubtful. Several recognising states had earlier confirmed consistently that no unilateral secession of Kosovo was permissible; they did so when voting for Security Council S/RES/1244, and when adopting the Contact Group statements. The position of the United Kingdom clearly expressed at the Security Council’s session in 2003 was that,

“The United Kingdom condemns unilateral statements on Kosovo’s final status from either side. We will not recognize any move to es-tablish political arrangements for the whole or part of Kosovo, ei-


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ther unilaterally or in any arrangement that does not have the back-ing of the international community.”43 States which have held this position consistently and over years,

namely France, Germany, the United States and the United Kingdom, have thereby been estopped from upholding the UDI subsequently made in Kosovo. They were thus not entitled to unilaterally reverse their position by recognising Kosovo as an independent state.

To summarise, there may be no obviously straightforward ground for considering that the statehood claim of Kosovo is subject to the duty of non-recognition as per ILC’s arts 40 and 41 on State Responsi-bility. But recognitions granted to Kosovo are nevertheless without ef-fect on the ground of being premature in relation to the entity that has not validly established statehood, of pre-empting the agreed decision of the parties and the Security Council as to Kosovo’s final status, and of contradicting the position to which the recognising states were previ-ously committed.

VI. The UDI in Respect of Kosovo and S/RES/1244

1. The Court’s Principal Findings

The Court’s principal conclusions regarding the legality of the UDI in Kosovo in the light of S/RES/1244 are the following:

43 Doc. S/PV.4742, 16; for similar statements of France and Germany see

paras 27-28 of Vice-President Tomka’s Declaration, see note 1. Further-more, the German statement in question specified that “only the Security Council has the power to assess the implementation of resolution 1244 (1999), and it has the final word in settling the status issue. No unilateral move or arrangement intended to predetermine Kosovo’s status – either for the whole or for parts of Kosovo – can be accepted.”, Doc. S/PV.4770, 13-14. Similarly, the Contact Group – a body that includes the United States, the United Kingdom, France and Germany – had clearly specified that “the final decision on the status of Kosovo should be endorsed by the Security Council.” The Ahtisaari Plan upholding Kosovo’s independence was not, as Judge Tomka emphasised, endorsed by the Security Council. Therefore, recognition of Kosovo’s statehood and independence by France, Germany, the United States and the United Kingdom in fact accepts and purports to validate that very same unilateral decision which those states had earlier considered to be unacceptable and one not to be recognised.


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� Arrangements under S/RES/1244 are interim and operate pending the final settlement of Kosovo’s status;44

� S/RES/1244 did not impose a prohibition on the Kosovo Alba-nian leadership to declare independence unilaterally;

� The process of the declaration of independence was not con-ducted so as to engage the interim regime of governance under S/RES/1244, but the UDI was instead proclaimed outside the 1244 arrangements framework;

� Consequently, the UDI did not violate S/RES/1244; � However, arrangements under S/RES/1244 retain their conse-

quent validity even after, and regardless of the making of, the UDI.45

Legal consequences of the UDI in Kosovo, and the validity of Ko-sovo’s secession attempt, can only be ascertained if all the Court’s above conclusions are duly borne in mind. Even if the Advisory Opinion re-mains silent on broader questions of substantive law applicable to se-cession attempts, the above conclusions, even though presenting an in-complete legal picture as to Kosovo’s legal status, are hardly disputable as a matter of law. Once these conclusions are acknowledged, they can point to other elements of the legal picture as to Kosovo’s legal status – that part on which the Court had, or chose, to remain silent.

44 The Court’s position has also negated Ahtisaari’s position that the situation

created by S/RES/1244 was irreversible, cf. Doc. S/2007/168, 3. Anything that is interim is, by definition, reversible.

45 Opinion, see note 1, paras 91-93; the position of the UN Secretary-General has been similar, even though the Secretary-General can only declare the existing legal position. In his report, it was pointed out that “on 17 Febru-ary, the Assembly of Kosovo held a session during which it adopted a ‘dec-laration of independence’, declaring Kosovo an independent and sovereign State. ... I immediately drew this development to the attention of the Secu-rity Council, so that it could consider the matter. In doing so, I reaffirmed that, pending guidance from the Security Council, the United Nations would continue to operate on the understanding that resolution 1244 (1999) remains in force and constitutes the legal framework for the man-date of UNMIK, and that UNMIK would continue to implement its man-date in the light of the evolving circumstances.” See Report of the Secre-tary-General on the United Nations Interim Administration Mission in Kosovo of 28 March 2008, Doc. S/2008/211, paras 3 and 4. This confirms also that S/RES/1244 arrangements remain in place unless and until the Council adopts a collective decision to alter them.


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2. The Nature and Interpretation of the Arrangements under S/RES/1244

The International Court followed the interpretation prevailingly made in the Security Council at the time of adoption of S/RES/1244 that,

“The interim administration in Kosovo was designed to suspend temporarily Serbia’s exercise of its authority flowing from its con-tinuing sovereignty over the territory of Kosovo.”46 This wording is very careful. It refers not to a change of sovereignty

or territorial title, but to the temporary suspension of the exercise of the authority that Serbia has over Kosovo due to its sovereignty that re-mains intact. This temporary suspension of the exercise of Serbian au-thority over Kosovo is accompanied by the establishment of the Con-stitutional Framework with UNMIK having central position in it, and can be brought, by the decision of the Council, to an end once parties agree as to what the final settlement should be: independence or reinte-gration on whatever terms (whether autonomy, federation or anything else).

The S/RES/1244 arrangements including the 2001 Constitutional Framework determining the status of provisional organs of Kosovo are part of international law,47 because the only source of the establishment of provisional organs is provided by UNMIK decisions adopted on the basis of S/RES/1244 which in its turn is adopted on the basis of the UN Charter as a measure to uphold international peace and security under Chapter VII of the UN Charter. The Court’s Opinion is clear on this point, which has been contested by Judge Yusuf, arguing that the Con-stitutional Framework constitutes domestic law.48 But whose domestic law, it is worth asking, Kosovo’s or Serbia’s? If it is Kosovo’s domestic law, then the Security Council must be deemed to have conferred inter-national standing to Kosovo’s domestic law – a step that could suggest an act of implied or conclusive recognition of Kosovo as a free-standing international entity if not a sovereign state. Such conclusion would con-stitute a counter-factual inference, if the overall framework established under S/RES/1244 is considered. Therefore, the Court’s treatment of the Constitutional Framework as part of international law has been categorically inevitable; in practical terms it precluded the validity of in-

46 Opinion, see note 1, para. 98. 47 Opinion, ibid., para. 88. 48 Separate Opinion of Judge Yusuf, ibid., para. 18.


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ferences that Kosovo can legislate without international supervision and control. For the essence of the Constitutional Framework is that it en-ables the functioning of local authorities in Kosovo, but is at the same time imposed on that territory internationally and without the consent of Kosovar authorities. The standing of those authorities thus depends, both internationally and domestically, on the international decision to which the will of those authorities is not a constituent element. In other words, local authorities in Kosovo exist and operate solely because the United Nations has, externally and unilaterally, enabled them to do so, as opposed to being inherently derived from any distinct legitimacy that the will of the people of Kosovo could have at the international level.

The Court was more than clear in its Opinion that the interim S/RES/1244 arrangements established along the above lines continue despite the fact of the UDI having been proclaimed in Kosovo. Con-ceptually and normatively, S/RES/1244 constitutes a collective Chapter VII decision of the Security Council to specify the conditions on which the interim governance of Kosovo should be conducted, for how long these arrangements should be continued, and when these arrangements should be brought to an end. The position expressed by some Council members – including three permanent members: United States, United Kingdom and France – that final outcomes such as Kosovo’s independ-ence can be projected and sustained even without the Council’s decision to that effect, essentially constitute the attempt by those Council mem-bers to substitute the Council’s judgment as to the ways and means of reaching the final settlement on the Kosovo issue by their own judg-ment to the same effect. Policies of this kind are not only doomed to failure in legal terms, but they also constitute an instance of unilateral interpretation of Security Council resolutions, and create an unfortu-nate precedent to weaken the overall relevance of the Council’s Chapter VII mandate to maintain international peace and security. If a unilateral exit from S/RES/1244 arrangements is possible through unilateral in-terpretations placed upon S/RES/1244, then it should also be possible for states to exempt themselves from arrangements under other Chapter VII resolutions, for instance those relating to arms embargoes or eco-nomic sanctions, if states unilaterally form a conclusion that the rele-vant Chapter VII regime no longer serves its original rationale, or has become too burdensome and unreasonable.

As for the chances of such unilateral interpretations succeeding in relation to the S/RES/1244 arrangements in Kosovo, the Court’s overall approach to interpretation of Security Council resolutions, stated as


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part of its analysis regarding the competence to deliver an Advisory Opinion, is instructive. The Court stated that,

“While the interpretation and application of a decision of one of the political organs of the United Nations is, in the first place, the re-sponsibility of the organ which took that decision, the Court, as the principal judicial organ of the United Nations, has also frequently been required to consider the interpretation and legal effects of such decisions.”49 Therefore, in this particular case it was up to the Council in the first

place to interpret S/RES/1244. But this was unlikely, as the adoption of the respective decision in the Council would require a degree of con-sensus that did not, and still does not, exist. Therefore, the Court’s im-portant and in these circumstances conclusive role to interpret S/RES/1244 was inevitable, for only this option could prevent the chaos generated by multiple, including unilateral, interpretations placed upon this resolution by a number of states.

Neither the political nature of Security Council resolutions, nor any special nature of the Security Council’s role in the area of international peace and security under Chapter VII of the Charter were to upset the Court’s ultimate role in interpreting Security Council resolutions.50 The Court’s approach has demonstrated its positive attitude towards judicial review of Security Council resolutions, thus adding to the established jurisprudence that such judicial review is both possible and feasible, and, in some circumstances, even necessary.51

49 Opinion, see note 1, para. 46. 50 That the Court had to reach its conclusions on this point over the objec-

tions in para. 9 of Judge Skotnikov’s dissent is a clear illustration of this conclusion. Judge Skotnikov has submitted, in no uncertain terms, that “it must be borne in mind that Security Council resolutions are political deci-sions. Therefore, determining the accordance of a certain development, such as the issuance of the UDI in the present case, with a Security Council resolution is largely political. This means that even if a determination made by the Court were correct in the purely legal sense (which it is not in the present case), it may still not be the right determination from the political perspective of the Security Council. When the Court makes a determina-tion as to the compatibility of the UDI with resolution 1244 – a determina-tion central to the régime established for Kosovo by the Security Council – without a request from the Council, it substitutes itself for the Security Council.”

51 For detail on this, Orakhelashvili, see note 34; id., Collective Security, 2011, Chapter 8.


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3. Interpretation by States and Interpretation by the Court

The Court’s reasoning draws on the outcomes envisaged under S/RES/1244 bearing its mind and its nature as an interim yet collective decision of the Security Council. This reasoning also clarifies the corre-lation between the Court’s view of the interim nature of S/RES/1244 arrangements and the views expressed by several states.

The first option of interpreting S/RES/1244 is that arrangements under this resolution are interim, with residual sovereignty of the FRY/Serbia being preserved. As Vice-President Tomka specified,

“The notion of a ‘final settlement’ [under and pursuant to S/RES/1244] cannot mean anything else than the resolution of the dispute between the parties (i.e., the Belgrade authorities and the Pristina authorities), either by an agreement reached between them or by a decision of an organ having competence to do so. But the notion of a settlement is clearly incompatible with the unilateral step-taking by one of the parties aiming at the resolution of the dis-pute against the will of the other.”52 This approach is in line with the textual interpretation of

S/RES/1244, which does not point to any alteration of Serbia’s territo-rial sovereignty over Kosovo and instead preserves it expressly.

If S/RES/1244 allows for an eventual secession through a UDI, then the Security Council must be deemed to have, from the outset, decided to allow for such secession and UDI, which position is systemically impossible, given that the Council has no competence to impose per-manent territorial settlements.53 This position is also counter-factual, given that S/RES/1244 has been supported by the Council members on the condition that no unilateral disruption of territorial integrity of the FRY/Serbia would be envisaged or tolerated.54

However, a number of states before the Court insisted on a different outcome. For example, Austria argued that S/RES/1244 has not from the outset excluded the independence of Kosovo as an option for its fu-

52 Declaration of Vice-President Tomka, see note 1, para. 28. 53 On the relevant issues regarding the scope of Security Council’s powers,

see Orakhelashvili, Collective Security, see note 51, Chapter 2. 54 Cf. Doc. S/PV.4011 of 10 June 1999, 7-9, 19; this position has been consis-

tently confirmed in the statements made in the Security Council and by the Contact Group quoted above.


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ture status.55 In a somewhat different way, the position of the United Kingdom before the Court was, by reference to the UN Secretary-General’s view, that “the situation established under S/RES/1244 was, however, unsustainable in the long term.”56 According to the United Kingdom,

“The purpose of setting up local provisional institutions was to transfer authority from the international civil presence over time, until all authority was vested in local institutions, whose character at that point would – unless otherwise agreed – no longer be provi-sional.”57 This is inevitably premised on the thesis that there would be a uni-

lateral determination as to when and whether provisional institutions should cease to be provisional; and on the claim – inherent in the phrase “unless otherwise agreed” – that the relevant states and entities have the standing to determine when the S/RES/1244 arrangements should be modified or terminated without waiting for the Security Council to de-cide on this point. It goes without saying that both British as well as the American positions before the Court regarding the interim nature and temporal validity of S/RES/1244 arrangements directly contradicted the positions both these states were committed to through their positions stated in the Security Council or through the statements of the Contact Group that they had supported with regard to the impermissibility of any unilateral decision as to the status of Kosovo.

There is no temporal limit imposed by the Security Council on the continuous validity of S/RES/1244 arrangements. There is thus no war-

55 Austrian Written Statement, see note 1, para. 29. 56 Written Statement of the United Kingdom, see note 1, 111 (para. 6.28); the

Written Submission of the United States, ibid., 68, similarly maintained that S/RES/1244 (1999) allowed for the future status of Kosovo without Bel-grade’s consent, mainly because this resolution contained references to the abortive Rambouillet Accords which, had they been signed by the FRY, would indeed have provided for such possibility.

57 Written Statement of the United Kingdom, see note 1, 111 (para. 6.29), also referring to the periodic review requirements (ibid., 111, para. 6.30), which, however, do nothing to reverse the requirement that the actual continua-tion of S/RES/1244 arrangements depend on the collective decision of the Security Council. Even if UNMIK faced difficulties in administering the entire territory of Kosovo (ibid., 116 et seq., para. 6.47), it still does not fol-low that its mandate or any other aspect of S/RES/1244 arrangements could be modified unilaterally, that is without the Security Council’s col-lective decision.


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rant to assume, as the pro-Kosovo governments did from 2007 on-wards, that a point of time can arrive when one can suggest that the consensual settlement has not been achieved and a unilateral solution such as the UDI is the available option. The Security Council has from the outset been aware, as has been everyone to some extent familiar with the nature of the Kosovo crisis, that S/RES/1244 arrangements were imposed on parties that were bitterly divided on status issues, and it could not realistically be expected that an agreed status solution was to be obtained anytime in the foreseeable future, nor even within sev-eral years. In short, the Council’s decision was that the status decision had to be awaited, and UNMIK and KFOR were to remain in Kosovo, for as long as needed. The Council has not suggested that this process, or the mandate of UNMIK and KFOR, was time-limited, while the po-sition of pro-Kosovo governments is inevitably premised on their uni-lateral and ex post facto projection of such time-limit on S/RES/1244 ar-rangements. The Court’s conclusion that, despite the UDI having been proclaimed, S/RES/1244 arrangements continue on terms originally de-signed back in 1999, confirms just that.

The unilateral independence option is therefore substantively in-compatible with S/RES/1244 arrangements, as far as states which are bound by and committed to S/RES/1244 insist on that option or act the way that is premised on it. S/RES/1244 addresses and binds states, as Article 25 of the UN Charter makes clear; it does not divulge any in-tention of the Council to impose any obligations or restrictions upon the Kosovo Albanian faction specifically.58 The impermissibility of a UDI under S/RES/1244 does not therefore inherently mean that the Kosovo Albanian leadership, acting outside the Constitutional Frame-work, cannot produce a UDI; it instead means that Member States of the United Nations are not permitted to procure, support or recognise such UDI. For the Kosovo Albanian leadership is not, and has not been – as of 1999 when S/RES/1244 was adopted, 2007 when the Ahtisaari Plan signalled the increase of political support for the Kosovo UDI, or even in the post-UDI period – an entity with the recognised standing under international law. It is therefore a logical outcome that the re-quirements of international law do not address the Kosovo Albanian leadership which has authored the UDI.

58 Opinion, see note 1, para. 118.


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4. The Identity of Authors of the UDI and the Basis for the Legitimacy of Provisional Institutions

The Court’s approach to base its conclusions on the identity of the au-thors of the Kosovo UDI, and consequently also on the aim and desig-nation of that declaration, can be seen as a way to evade the considera-tion of substantive legal issues of statehood and secession that have dominated legal and political discourse on this subject. Yet, the Court’s crucial emphasis that the authors of the UDI did not act as part of the Provisional Institutions under the Constitutional Framework inevitably leads to the consideration of more substantive issues as to the legal basis on which the powers of Provisional Institutions are based, and ulti-mately to the assessment of claims that Kosovo has achieved statehood, even though the Court did not expressly address these substantive is-sues.

The Court expressly confirmed that S/RES/1244 arrangements are interim, while the UDI is an attempt to produce a permanent legal posi-tion. Judge Skotnikov pertinently specifies that the majority did not properly explain the difference between acting outside the legal order and violating it.59 On the other hand, the Court’s restrained language may be due to the fact that it has given a narrow interpretation to the question posed to it by the General Assembly. The finding that the UDI was not part of the S/RES/1244 legal framework leads to the con-clusion that it is not based on it, a fortiori is not a step authorised under it, and therefore has no effect on it. This conclusion is reinforced by the Court’s repeated affirmation that, the UDI notwithstanding, the interim arrangements under S/RES/1244 including UNMIK continue as before and the UDI has no effect on the allocation of rights and powers under that resolution. Given its narrow interpretation of the question posed by the General Assembly, and the Court’s own prevailing focus on the ratione personae aspect of this problem, the Court did not go as far as expressly determining that the UDI contradicted the S/RES/1244 ar-rangements, but its indirect pronouncement that it was “outside” those arrangements should be enough to make one realise that the UDI had no desired effect. Or perhaps the word “violation” would have been too strong in this context: the Court’s measured language implies more than that, namely that the UDI was immaterial and ineffectual as far as the S/RES/1244 arrangements and their continuous relevance are con-cerned. 59 Dissenting Opinion of Judge Skotnikov, ibid., para. 15.


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The UDI that could violate international law or not be in accordance with it could only be the one produced by an organ that is internation-ally considered to represent the population of Kosovo. Given that Kos-ovo was, and remains, under an international protectorate specified in and pursuant to S/RES/1244, only those decision-making organs within that protectorate system can determine how the representation of the people of Kosovo should be arranged, what decisions the representative organ can make and in what way. These decision-making organs had done so through the Constitutional Framework adopted in 2001. Any other way of arranging for the expression of the will of the people of Kosovo must be deemed to be internationally ineffectual, because being placed under interim international protectorate is as far as Kosovo’s in-ternational legal standing ever got past the point of being a province of Serbia. Provisional Institutions of Kosovo obtained their powers against the background of Kosovo having been, and legally remaining under S/RES/1244, a part of Serbia. The only international intervention to elevate their status from a province within the state to an interim in-ternational protectorate has been the one by the Security Council. Con-sequently, only the organs established by the Security Council could validly determine what kind of decisions Provisional Institutions could adopt, subject to the principles to which S/RES/1244 adheres, including the principle of respect for Serbia’s territorial integrity which, by defini-tion, rules out the international validity of a unilateral secession.

It is here that the Court’s conclusion that the authors of the UDI acted not as part of Provisional Institutions of the Constitutional Framework and outside the S/RES/1244 arrangements crucially mat-ters. It is worth following what precisely the Court observed,

“The Preamble of the declaration refers to the ‘years of internation-ally-sponsored negotiations between Belgrade and Pristina over the question of our future political status’ and expressly puts the decla-ration in the context of the failure of the final status negotiations, in-asmuch as it states that ‘no mutually-acceptable status outcome was possible’ (tenth and eleventh preambular paragraphs). Proceeding from there, the authors of the declaration of independence empha-size their determination to ‘resolve’ the status of Kosovo and to give the people of Kosovo ‘clarity about their future’ (thirteenth pream-bular paragraph). This language indicates that the authors of the declaration did not seek to act within the standard framework of in-terim self-administration of Kosovo, but aimed at establishing Kos-ovo ‘as an independent and sovereign state’ (para. 1). The declara-tion of independence, therefore, was not intended by those who


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adopted it to take effect within the legal order created for the in-terim phase, nor was it capable of doing so. On the contrary, the Court considers that the authors of that declaration did not act, or intend to act, in the capacity of an institution created by and em-powered to act within that legal order but, rather, set out to adopt a measure the significance and effects of which would lie outside that order.”60 The Court thereby demonstrates that the authors of the UDI clearly

intended to achieve the status solution that would not be the agreed so-lution. As the Court clearly affirmed that S/RES/1244 admits only the agreed status solution, it was led to conclude that the authors of the UDI acted outside the S/RES/1244 arrangements.

The Court’s analysis confirmed that the aspects of the UDI whereby Kosovo authorities try to assume powers reserved under S/RES/1244 for UNMIK, especially the conduct of foreign relations for Kosovo, constitute attempts by Kosovo authorities to unilaterally break out of S/RES/1244 arrangements.61 The authors of the UDI thus attempt to arrogate to themselves the powers that S/RES/1244 exclusively pre-serves for UNMIK. Even if the Court does not expressly use the word “violation”, it is difficult to ascribe any other meaning to its acknowl-edgment of the UDI having been made outside the S/RES/1244 ar-rangements, had it been produced by an organ that is part of Provi-sional Institutions.

But the authors were not part of Provisional Institutions and did not purport acting as such. As the Court noted,

“Nowhere in the original Albanian text of the declaration (which is the sole authentic text) is any reference made to the declaration be-ing the work of the Assembly of Kosovo. The words ‘Assembly of Kosovo’ appear at the head of the declaration only in the English and French translations contained in the dossier submitted on behalf of the Secretary-General. The language used in the declaration dif-fers from that employed in acts of the Assembly of Kosovo in that the first paragraph commences with the phrase ‘We, the democrati-cally-elected leaders of our people ... ’, whereas acts of the Assembly of Kosovo employ the third person singular. Moreover, the procedure employed in relation to the declaration dif-fered from that employed by the Assembly of Kosovo for the adop-

60 Opinion, see note 1, para. 105. 61 Opinion, ibid., para. 106.


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tion of legislation. In particular, the declaration was signed by all those present when it was adopted, including the President of Kos-ovo, who (as noted in paragraph 76 above) was not a member of the Assembly of Kosovo. In fact, the self-reference of the persons adopting the declaration of independence as ‘the democratically-elected leaders of our people’ immediately precedes the actual decla-ration of independence within the text (‘hereby declare Kosovo to be an independent and sovereign state’; para. 1). It is also noticeable that the declaration was not forwarded to the Special Representative of the Secretary-General for publication in the Official Gazette.”62 There were thus more than enough indications that the organ that

adopted the UDI in Pristina on 17 February 2008 did not legally consti-tute the Assembly of Kosovo, and the UDI was therefore not a decision made as part of the Constitutional Framework. Deficiencies as to the required form and procedure were so obvious and recurring that the Court simply had no way of disregarding them.

What would have been the position had the UDI been produced by organs validly acting as part of the Constitutional Framework? As a starting point, it has to be emphasised that S/RES/1244 and the Consti-tutional Framework establish a carefully arranged constitutional bal-ance meant to give Kosovo Albanians a reasonable degree of autonomy, and to prevent them from taking unilateral decisions that will under-mine the interim nature of these arrangements. The overarching status of UNMIK is meant precisely to guarantee that this balance will be ob-served. Had the UDI been enacted by Provisional Institutions acting as such, the Special Representative of the Secretary-General and UNMIK would have been duty-bound to react and censure, as such actions would have amounted to the use of powers conferred by the Constitu-tional Framework to Provisional Institutions for purposes other than those for which these powers had been conferred, and that would have encroached upon the constitutional balance under the Constitutional Framework.63 This would have amounted to an excess or abuse of pow-

62 Opinion, ibid., para. 107. 63 Vice-President Tomka has made a parallel with a previous instance, where

“in November 2005, the Assembly of Kosovo contemplated a declaration of independence, but the Special Representative of the Secretary-General indicated that such a declaration ‘would be in contravention to the UN Se-curity Council resolution [1244] ... and it therefore will not be with any le-gal effect’”, Declaration of Vice-President Tomka, see note 1, para. 32; see also, to the same effect, para. 108 of the Court’s Opinion, ibid.


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ers (ultra vires) conferred to Provisional Institutions, and the Special Representative of the Secretary-General would have been bound to de-clare accordingly.

Given that the UDI, and subsequently the constitution of Kosovo, was actually adopted outside the framework of the international protec-torate under S/RES/1244, it did not legally amount to the use of powers conferred to Provisional Institutions under the Constitutional Frame-work; therefore, the UDI was not based on such valid representation of the population of Kosovo that can internationally be taken note of. Consequently the UDI could have no international effect. As the Court specified, the UDI was neither intended to exempt Kosovo from the S/RES/1244 arrangements nor actually had such effect, even though ef-fecting such exemption would have been the only way to make Kosovo a state on a permanent basis, that is achieve the very result pursued by the UDI. As no change in the legal landscape dominated by the interim governance regime under S/RES/1244 was initiated, no reaction from the Special Representative of the Secretary-General was legally called for.

The underlying rationale of the Court’s reasoning has been illus-trated by a question pertinently posed by Michael Bothe,

“has the ICJ, by its reasoning, not done a disservice to the cause of the Albanian Kosovars? The ICJ emphasizes that the authors did not act in the function for which they were elected. What, then, is the basis of their legitimacy? The ICJ’s opinion seems to drive them into a shadowy, non-official area. What is it that distinguishes them from any market assembly? The ICJ was not asked and did not an-swer this question.”64 The Court remained silent on that broader question for jurisdic-

tional and procedural reasons. But as a matter of substantive law, the answer still has to be identified against the entire context of the Kosovo situation, including the framework of S/RES/1244 arrangements. Laws and decisions adopted by the Kosovo Assembly have to be counter-signed and confirmed by UNMIK to become valid law; they are en-acted on official notepaper that includes the symbol of UNMIK. For instance, the Law on Arbitration adopted by the Kosovo Assembly clarifies in its preamble65 that it is being adopted pursuant to the powers

64 Bothe, see note 30, 838. 65 Law No. 02/L-75.


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that the Constitutional Framework has conferred to the Assembly.66 There are cases where UNMIK has promulgated the Assembly’s laws with some amendments required so that all claims or indications that Kosovo may be an independent state are avoided. The UNMIK Regula-tion promulgating the law on dwelling and emplacement amends, throughout the law, the word “Kosova” by “Kosovo”, the word “citi-zen” by the words “habitual resident”, the words “Ministry of Defence and Kosovo Security Force” by the words “other governmental institu-tions”, and the words “defence forces” by the words “Kosovo Protec-tion Corps.”67 Similarly, the UNMIK Regulation promulgating the law on prevention of infectious diseases amends, throughout the law, the words “country” and “citizens” by “Kosovo” and “habitual resi-dents.”68 The implication of all that is that, even in the post-UDI pe-riod, Kosovo is not regarded as an independent state within the UN framework of S/RES/1244 arrangements, nor is Serbia’s fallback sover-eignty prejudiced in any way. As Bothe again has remarked,

“The ICJ’s holding that the authors of the declaration of independ-ence did not violate Resolution 1244 does not mean that Serbia is not entitled to rely on the Resolution regarding its claims of territo-rial integrity.”69 The Court is not only a judicial organ but also the principal judicial

organ of the United Nations, thereby responsible for the maintenance of integrity of the UN legal framework, above all arrangements relating to the maintenance of international peace and security. It must be seen as a kind of public policy relating to the Court’s advisory function that it should not say anything that would undermine the nature and viabil-ity of the arrangements validly put in place by the Security Council – in this case of the interim administration of Kosovo – in favour of actions and positions taken by some of the Council’s Member States. In both

66 UNMIK Regulation No. 2001/9 of 15 May 2001 (providing for various op-

tions of control of the Assembly’s act, up to the point of dissolving the As-sembly if it acts contrary to S/RES/1244 arrangements), UN-MIK/REG/2001/9.

67 UNMIK Regulation No. 2008/14 of 17 March 2008, on the Promulgation of the Law on Dwelling and Emplacement adopted by the Assembly of Kosovo, UNMIK/REG/2008/14.

68 UNMIK Regulation No. 2008/23 of 15 May 2008, on the Promulgation of the Law on Prevention and Fighting of Infectious Diseases adopted by the Assembly of Kosovo, UNMIK/REG/2008/23.

69 Bothe, see note 30, 839.


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its above capacities, the Court was expected and obliged to confirm that the UDI in respect of Kosovo had no effect in the UN legal framework in Kosovo that had collectively been approved by the Security Council, and that this legal framework continued being in force without being impacted upon by the UDI.

It is difficult to dissociate from this the outcome that the interim UN arrangements, premised on the lack of statehood of Kosovo, con-tinue and the UDI simply has no effect of making Kosovo an inde-pendent state. For if the interim arrangements continue, a UDI attempt-ing to provide for a final status determination of Kosovo cannot validly form part of the legal landscape.

VII. Legal Consequences of the UDI in Respect of Kosovo

The Court’s reasoning has been clear in that the UDI in respect of Kos-ovo has actually no effect on arrangements under the Constitutional Framework.70 The question that has to be clarified in this context is how the UDI shall be located in the law relating to international acts and transactions, and what the legal consequences are. Due to the nar-row framing of the General Assembly’s question, the Court was unable to discuss these legal consequences.

According to Judge Koroma, the UDI in respect of Kosovo is a nul-lity.71 However, it cannot be a nullity in the strict sense that interna-tional law attaches to this concept, because this would mean that Serbia cannot validate it; it would, however, certainly constitute a nullity if an argument were to succeed that the proclamation of the UDI by itself constitutes, or is contingent upon, a breach of a jus cogens rule.72 This has to be the position unless the UDI itself were to be viewed as an immediate consequence produced by the 1999 use of force by NATO against Serbia. It is similarly difficult to see human rights violations in Kosovo, including the ethnic cleansing of Serbs, as an immediate cause that led to the adoption of the UDI and without which the conditions of adoption of the UDI would not have materialised.

70 Opinion, see note 1, para. 121. 71 Dissenting Opinion of Judge Koroma, ibid., para. 14. 72 See on questions of validity Orakhelashvili, see note 35, Chapters 6 and 7.


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From this perspective, the UDI in respect of Kosovo presumably falls short of constituting a nullity. But it could, in relations between Serbia and third States, still constitute a relative invalidity, in which case it would generate no legal consequences and no entitlements unless and until Serbia were to consent to, and thus validate, Kosovo’s independ-ence and secession. In practical terms, the distinction between the im-plications of nullity and of relative invalidity in this case would be prac-tically irrelevant, for Serbia’s refusal to validate Kosovo’s secession achieves the same legal result as would automatically, and regardless of Serbia’s position, be present in the case of nullity.

But all the above is merely a normative option, as opposed to being a definitive legal position. A more accurate description of legal conse-quences of the UDI in Kosovo first has to clarify the question as to whether this UDI, before it engages the law of invalidity on the interna-tional plane, is by its nature an act or transaction of the kind that could engage the international legal system and impact legal positions under that legal system. As is clear from the Court’s reasoning, this question has to be answered in the negative.

The outcome that obtains therefore is that the UDI in respect of Kosovo is not even a nullity but, to follow the established terminology, an inexistent act. Nullity can accrue only to acts that are produced by entities with proper standing within the legal system in which they at-tempt to generate the relevant legal consequences. In international legal terms, there is no such free-standing organ as the Assembly of Kosovo (apart from within the framework of powers conferred to it as part of the interim Constitutional Framework). Such free-standing organ sim-ply does not legally exist; therefore it cannot produce a UDI interna-tionally opposable to anyone, nor act in accordance with or violate in-ternational law. The UDI made in Pristina on 17 February 2008 is, therefore, as far as international law is concerned, an inexistent act.73

The essence of inexistent (or non-existent) acts is clear. According to Sir Robert Jennings, “any purported international act by an entity whose lack of capacity in this regard was total would be non-existent in international law.”74 Paul Guggenheim expressed the identical position and also specified that inexistent acts are those that simply do not raise 73 Although the law of invalidity certainly applies to recognitions granted by

third states to Kosovo, above all to recognitions by states that were previ-ously committed not to recognise any UDI, see above Section V.

74 R.Y. Jennings, “Nullity and Effectiveness in International Law”, in: A.D. McNair, Cambridge Essays in International Law, 1965, 64 et seq. (66).


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to the level where valid acts or invalid, whether void or voidable, acts can be produced.75 According to Nicoloudis, a non-existent act cannot deploy legal effects because it lacks elements that are essential for the formation of acts that can affect legal position in the international legal system.76

VIII. Conclusion

The complexities and confusions of the International Court’s Advisory Opinion on Kosovo can be best addressed if it is borne in mind that le-gal reasoning, not common sense, provides the primary aid for under-standing the opinion and the legal merit of the Kosovo situation as a whole.

The narrow construction of the General Assembly’s question does not imply the Court’s acknowledgment of the lack of ways interna-tional law can deal with lawful or unlawful secessions, let alone any projection of gaps in this area of law; it only means that the Court ex-pressly addresses this particular UDI produced by that particular actor and no more, which literally fits within the parameters of the General Assembly’s request. The Court’s Opinion, seen in context with the relevant state and UN practice, means not that Kosovo’s UDI is lawful, but that due to the inherent deficiency in standing of the entity pro-claiming the UDI, it does not even get to the point where the compli-ance of the substance of the UDI with international law has to be as-sessed.

75 “On affirme, par exemple, qu’un acte est inexistant lorsqu’il est établi par

un sujet incapable de créer des actes en droit international. … Toutefois, à côté de l’acte inexistant créé par des individus au nom d’une entité n’ayant pas la qualité d’un sujet de droit, il y a d’autres situations — plus intéres-santes et plus importantes — où le problème de l’acte inexistant se pose,” P. Guggenheim, “La validité et la nullité des actes juridiques internationaux”, RdC 74 (1949), 195 et seq. (203-204). Guggenheim also gives an example in line with the contemporary law in force: “Tel est le cas quand les organes d’un ex-Etat annexé, comme le Monténégro, délivrent des passeports à leurs anciens ressortissants. La situation juridique n’est pas modifiée par un tel acte.”

76 E. Nicoloudis, La nullité de jus cogens et le développement contemporain de droit international public, 1974, 54, also pointing out that the 1969 Vi-enna Convention only concerns void and voidable treaties, and does not mention inexistent treaties, (57).


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There can be no defence of the Court’s failure to address the under-lying substantive issues of statehood, self-determination, and secession. An occasional recourse to judicial pragmatism can be useful, but the very circumstances inducing the Court to resort to pragmatism can also be unfortunate. That no majority could be gathered in support of a broader treatment of the General Assembly’s request, more specifically to properly pronounce on the legality of acts and transactions per-formed by third states internationally, can only be a statement of the problem, not its justification. The Court’s isolated treatment of the question of the UDI has indeed generated significant misunderstanding as to what the Court’s real conclusion was, and has created expectations as to the legal position that it has not quite obtained. Nevertheless, this misunderstanding can be eliminated through a careful reading of the Opinion, which still has to be done in some quarters. Although this has significantly diminished the advisory quality of the Opinion,77 this quality has not been destroyed or eliminated.

The Court would certainly have done better if it had expressly specified whether Kosovo meets the legal criteria for statehood. But implications to that effect obtain from the Court’s Opinion anyway. A careful and contextual reading of the Opinion can shed light on a num-ber of important questions, most importantly demonstrating that Kos-ovo cannot be considered to be an independent state or a case of suc-cessful secession. There is nothing in the Opinion, in its findings or in its context that could aid the legal argument favouring Kosovo’s inde-pendence or that regarding the UDI as actually impacting the legal landscape, either as a matter of general international law or of S/RES/1244 arrangements. The Court has said or done nothing to sug-gest that the UDI of 17 February 2008 has given rise to Kosovo’s state-hood and independence which that very same UDI purports to obtain in defiance of legal restrictions to which both states supporting the UDI and the UN organs are clearly committed. The Court’s complex, even though fragmented, treatment of the UDI in respect of Kosovo leaves us therefore with little else than to recognise that,

“Such declarations are no more than foam on the tide of time; they cannot allow the past to be forgotten nor a future to be built on fragments of the present.”78

77 See on this point the Opinion of Judge Simma, see note 1. 78 Dissenting Opinion of Judge Bennouna, ibid., para. 69.

Paying Danegeld to Pirates – Humanitarian Necessity or Financing Jihadists*

Andreas S. Kolb/ Tim René Salomon/ Julian Udich



I. Introduction II. Paying Ransom and/or Funding Terrorists? A Joining of Forces and Legal

Consequences 1. Factual Background 2. Legal Issues beyond Ransom Payments

III. Ransom Payments to Pirates and the International Law for the Suppres-sion of Terrorist Financing 1. International Convention for the Suppression of the Financing of Ter-

rorism a. Application of the International Convention for the Suppression

of the Financing of Terrorism to the Funding of Piratical Acts? b. Ransom Payments as Terrorist Financing? c. Conclusion on the Lawfulness of Ransom Payments to Pirates un-

der the International Convention for the Suppression of the Fi-nancing of Terrorism

2. Conformity of Ransom Payments with Security Council Resolutions a. Conformity of Ransom Payments with Security Council Resolu-

tion 1373 aa. Piracy as “Terrorist Act” within the Meaning of Resolution

1373 bb. Ransom Payments as Financing under Resolution 1373 cc. Conclusion on the Applicability of Resolution 1373 to Ran-

som Payments to Pirates b. Suppression of Ransom Payments under the UN Sanctions Re-

gime Targeting al-Qaida and the Taliban c. Suppression of Ransom Payments under the UN Sanctions Re-

gime Regarding Somalia 3. Conclusion on the Legal Framework on the Payment of Ransom

IV. National Solutions to Legality of Ransom Payments V. Conclusion

Kolb, Salomon, Udich, Paying Danegeld to Pirates 107

I. Introduction

“If I know aught of life at sea, War, trade and piracy are one, An indi-visible trinity”1 is how Goethe described, through his character Mephi-stopheles, the close ties between piracy and trade. And indeed, piracy has been a constant companion of international shipping throughout the times. Accordingly, the way to fend off this threat and, in this con-text, the payment of monies has been a constant topic of debate. The history of tribute and ransom payments and the term danegeld can be traced back to King Æthelred II of England, under whose reign 10,000 pounds were paid to the Danes for the first time in 991 seeking relief from Viking attacks.2

In modern times, pirate groups that operate off the coast of Somalia have been heavily financed by escalating ransom payments. In most cases, these payments have ensured that crews, cargo and ships have been released by the pirates without cost of human lives. However, they have also contributed to the work of criminal gangs and enabled them to gather better supplies and indeed set up almost professional logistical structures, which furthered the flourishing of the “business model” pi-racy.3 As such, ransom payments have facilitated instability and ce-mented the rule of criminals in wide parts of Somalia.

Looking back, the history of the Barbary States – Morocco, Algiers, Tunis and Tripoli – is of interest when discussing ransom and tribute payments. The corsairs were a challenge to all trade powers from the

* This contribution is part of the research project “Piracy and Maritime Ter-

rorism as a Challenge for Maritime Trade Security: Indicators, Perceptions and Options for Action”, <http://www.maritimesecurity.eu>. The project is funded by the Federal Ministry of Education and Research and inte-grated in the Federal Government’s Security Research Programme on Civil Security and Securing Commodity Chains, <http://www.sicherheitsforschungsprogramm.de>.

1 J.W. von Goethe, Faust, Part II, Act V, Verse 11187 et seq. [Penguin trans.], originally: “Ich müßte keine Schiffahrt kennen. Krieg, Handel und Pi-raterie, Dreieinig sind sie, nicht zu trennen.”

2 Cf. E. Gibson, Chronicon saxonicum, 1692, A.D. 978-979, 991. 3 The term “business model” has become an often used description of Somali

piracy, J.A. Roach, “Countering Piracy off Somalia: International Law and International Institutions”, AJIL 104 (2010), 397 et seq. (407); R. Meade, “An adaptable and lucrative business”, Lloyds List of 6 May 2011.


16th century on. Europe adopted a more or less collective strategy of non-resistance and annual tribute payments to deal with this threat. In 1622, the Casse der Stücke von Achten was founded in Hamburg in which seafarers paid premiums in return for an early kind of kidnap and ransom insurance.4 Churches collected money for seafarers taken as slaves by the Barbary corsairs,5 while article 22 (9) of Hamburg’s Fal-liten-Ordnung of 1753 obligated insolvent shipowners to pay ransoms under certain conditions, in order to free the slaves from their captors.6

Around the same time, the payment of ransom was also allowed and practiced in the United Kingdom.7 While Europe’s states pursued their policy of cooperation,8 paid annual tributes and allowed ransom pay-ments by private actors, the United States appeared on the scene. One year after the Peace of Paris, in which the British Empire acknowledged the sovereignty of the newly founded nation, the American merchant vessel Betsy was hijacked in 1784 and brought to Morocco.9 The United States paid US$ 80,000 in tribute for the release of the prisoners, a great number of which had died due to the circumstances of the imprison-ment.10 This led to an increase of attacks on the American fleet, which was largely unprotected at the time. Subsequently, a peace treaty was signed in 1796 between the Bashaw of the Barbary pirates and the United States,11 which lost effect when the Bashaw declared war in 1801. This set the stage for the third president of the United States,

4 P. Koch, “Der hamburgische Beitrag zur Entwicklung des Versi-

cherungswesens in Deutschland”, in: P. Koch, Beiträge zur Geschichte des deutschen Versicherungswesens, Teil II, 2005, 7 et seq. (7).

5 E. Wiese, “Hamburg und die Sklavenkasse”, Hamburger Abendblatt of 15 December 2009.

6 T. Hasche, Hamburgisches Privatrecht: Erläuterung der Hamburgischen Falliten-Ordnung, Vol. 2, 1802, 129 et seq.

7 J. Chuah, “Pirate’s Ransom – to pay or not to pay”, Student Law Review 56 (2009), 46 et seq.; see below under IV.

8 For a detailed account refer to S. Lane-Poole, The Story of Barbary Cor-sairs, 1890, 256 et seq.

9 R.F. Turner, “State Responsibility and the War on Terror: The Legacy of Thomas Jefferson and the Barbary Pirates”, Chi. J. Int’l L. 4 (2003), 121 et seq. (122).

10 Ibid. 11 For a collection of the treaties between the United States and the Barbary

States, refer to the Avalon Project, Documents in Law, History and Diplo-macy, The Barbary Treaties 1786-1836, available at <http://avalon.law. yale.edu>.


Thomas Jefferson, who had promoted a war on the Barbary pirates since 1786 and was strongly opposed to paying tribute.12

Convinced of the fact that “an insult unpunished becomes the par-ent of many others”,13 Jefferson waged a war against the Barbary States from 1801 to 1805, which ended with a peace treaty, including an ex-change of prisoners.14 The struggle against the Barbary pirates was – af-ter continued hijackings of American vessels by the pirates – brought to an end by Madison, who, as the fourth president of the United States, again deployed ships against Algiers.15 This operation resulted in a treaty that guaranteed the United States full shipping rights and ended tribute payment. Madison found the following words to describe the US-American view at the time: “It is a settled policy of America, that as peace is better than war, war is better than tribute. The United States, while they wish for war with no nation, will buy peace with none.”16 However, even the United States, though stout in their stance against Barbary piracy, did not outlaw the payment of ransom by private ac-tors.

Today, the re-emergence of piracy in Somalia falls in a time where the financing of criminal acts, even involuntarily through ransom pay-ments by private actors, may very well be regarded differently than it has been historically, especially with a view to combating international terrorism. This contribution focuses on such possible differences.

First, the newest developments concerning the factual background will be outlined and some thoughts will be given to the differences of 12 Turner, see note 9, 125. 13 Letter from Thomas Jefferson to John Jay of 23 August 1785, reprinted in:

J.P. Boyd/ M.R. Bryan/ E.L. Hutter (eds), The Papers of Thomas Jefferson, 1953, Vol. 8, 426 et seq. (427).

14 As the number of prisoners made by Tripoli exceeded that of the US Navy, it was agreed that the United States would make a payment for the release of the remaining prisoners. For a detailed account see Lane-Poole, see note 8, Chapter XX; Turner, see note 9, 136. The war on the corsairs is still re-flected in today’s hymn of the US Marine Corps: “From the Halls of Mon-tezuma to the Shores of Tripoli.”

15 Lane-Poole, see note 8, 293. 16 Quoted in C. Hitchens, “Jefferson Versus the Muslim Pirates”, City Jour-

nal 17 (2007), available at <www.city-journal.org>; Madison’s position in favour of a strong navy and an even stronger union to guard the United States from “the rapacious demands of pirates and barbarians” was docu-mented in Federalist No. 41, “General View of the Powers Conferred by The Constitution”, Independent Journal of 19 January 1788.


the legal regimes fighting terrorism and piracy. Afterwards, the pay-ment of ransoms will be analysed on the basis of the International Con-vention for the Suppression of the Financing of Terrorism17 (hereinafter also “the Convention”) and applicable Security Council resolutions. Finally, some comments will be made on national legislation with re-gard to ransom payments and terrorist financing.

II. Paying Ransom and/or Funding Terrorists? A Joining of Forces and Legal Consequences

With the rise of piracy, ransom payments have again become a topic of political debate for the naval powers. Concerning Somali piracy, the av-erage sum of ransom payments has seen an unprecedented increase in recent years. In 2010, the average ransom paid reached US$ 5.4 million and topped the average ransom sum of 2009 by US$ 2 million.18 With such amounts, the interest of other groups in Somalia has seemingly awakened, and a joining of forces between pirate and terrorist groups now seems to be no more a mere rumour but a tangible scenario.

1. Factual Background

To examine the ties between piracy and terrorism, a short overview of the current situation in Somalia is in order. The unprecedented rise in piratical acts in the last years has been made possible by the collapse of an effective governmental rule, a development that goes back to the overthrow of dictator Siad Barre in 1991.19 Legally speaking, the con- 17 International Convention for the Suppression of the Financing of Terror-

ism of 9 December 1999, UNTS Vol. 2178, 197 et seq., ILM 39 (2000), 270 et seq. (entered into force 10 April 2002).

18 A. Bowden, “The Economic Cost of Maritime Piracy”, One Earth Future Working Paper, December 2010, 10, available at <http://oneearthfuture. org>; Jack Lang even suggests a doubling of the amount in the Report of the Adviser to the Secretary-General on Legal Issues related to Piracy off the Coast of Somalia, in: Letter dated 24 January 2011 from the Secretary-General to the President of the Security Council, Doc. S/2011/30 of 25 January 2011, Annex, para. 96.

19 See e.g. A. Nord, “Somalia und der internationale Terrorismus – wie stark sind islamische Fundamentalisten am Horn von Afrika”, Nord-Süd aktuell, 2002, 96 et seq. For a study of the historical developments leading up to the


flict between the internationally recognized Transitional Federal Gov-ernment (TFG) and the heavily armed insurgents of the al-Shabaab (The Youth) and Hizbul Islam (Islamic Party) is to be qualified as a non-international armed conflict.20 The two insurgent groups used to cooperate only in few instances, while ideological differences prevented a further joining of their forces.21 In December 2010, however, the two groups declared that they would merge and sort out their ideological differences at the internal level.22 After this merger, the al-Shabaab, consisting of separate cells, remains the largest insurgent group, which has effectively consumed the less extremist, but also less powerful Hiz-bul Islam.23 The organization does not limit itself to a nationalist agenda, but aims at establishing a global Islamic caliphate and repre-sents a strict Wahhabi understanding of the Islam, outlawing music, ra-dio and cinema events and taking away women’s rights, e.g. the freedom of movement.24 The radical islamist al-Shabaab already exercises con-trol over most of South and Central Somalia and even before merging with Hizbul Islam was regarded as the strongest military faction of the country.25 To reach its ultimate goal of a global caliphate state, al-Shabaab declared to join forces with al-Qaida in February 2010 and is known to support the global Jihad, a pledge that has been renewed after the killing of Usama bin Laden on 2 May 2011.26 In July 2010, al-Shabaab executed suicide bombings in Uganda killing a minimum of 74 soccer fans during the final game of the World Soccer Championship

failure of the state, see I.M. Lewis, A modern history of the Somali, 2002; in respect of the UN involvement cf., C.E. Philipp, “Somalia – A Very Special Case”, Max Planck UNYB 9 (2005), 517 et seq.

20 T. Neumann/ T.R. Salomon, “Kein Krieg vor Somalia”, HuV-I 3/2011, forthcoming. This statement is true for most parts of Somalia, however not for the semi-autonomous region Somaliland, which remains comparatively untroubled.

21 K. Petretto, “Somalia und Piraterie: keine Lösung in Sicht, weder zu Wasser noch zu Land”, Hamburger Informationen zur Friedensforschung und Sicherheitspolitik 49/2010, 4.

22 M.M. Muhumed, “Merger of Somali militants could mean more attacks”, The Associated Press of 20 December 2010.

23 Ibid. 24 Petretto, see note 21, 4; the Wahhabi direction contradicts the Sufi repre-

sentation of Islam otherwise predominantly found in Somalia. 25 Ibid., 3 et seq. 26 BBC Monitoring Africa, “Somalia’s Al-Shabab says death of Bin-Ladin not

to hamper ‘jihad’ against West”, 3 May 2011.


and proving by that its ability and willingness to operate beyond Somali borders.27 The TFG on the other hand cannot match the military strength of al-Shabaab. On the contrary, the TFG’s area of geographic influence is as of July 2011 limited to mainly the capital of Somalia, Mogadishu. Militarily, the TFG exercises effective control over just a small number of districts within Mogadishu and only with the assis-tance of the protection force of the African Union Mission in Somalia (AMISOM).28

The role of the pirates in this conflict has remained unclear so far leading to a diverse set of speculations. The case has been made that pi-rates wilfully contribute and finance actions in the Somali civil war and that the parties of the civil war intend to make use of piracy to finance their actions.29 On the other hand, it has been argued that the pirates really conduct their operations independently of the conflict, suggesting that they are not insurgents themselves.30 Moreover, the connection be-tween Somali pirates and insurgents has been challenged on the basis of a lack of obvious links between the two.31 Although the insurgents are not participating directly in the attacks on shipping and the pirates are usually not insurgents, it seems hardly deniable that parts of the ransom money may end up in the hands of groups that are somehow involved in the armed conflict. Eventually parts of these funds may contribute to and finance terrorist activities.32

27 X. Rice, “At least 74 killed in two attacks in Ugandan capital: Somali

Islamist militants claim responsibility”, The Guardian of 13 July 2010, 15. 28 Petretto, see note 21, 3. Cf. also International Crisis Group, Somalia: The

Transitional Government on Life Support, Crisis Group Africa Report 170 of 21 February 2011, Appendix B, available at <www.crisisgroup.org>.

29 M. Stehr, “Piraten steigern sich weiter”, MarineForum 2011, Issue 1/2, 14 et seq. (16), who goes so far to state that this makes pirates insurgents and combatants, a point which contradicts international humanitarian law; for a critique of this position see Neumann/ Salomon, see note 20, 2; D. König/ T.R. Salomon/ T. Neumann/ A.S. Kolb, Piraterie und maritimer Terroris-mus als Herausforderungen für die Seesicherheit: Rechtliche Analysen, Pi-raT Working Paper, B.V., available at <http://www.maritimesecurity.eu/>.

30 D. Guilfoyle, “The Laws of War and the Fight against Somali Piracy: Combatants or Criminals?”, Melbourne Journal of International Law 11 (2010), 141 et seq.; Neumann/ Salomon, see note 20, 2.

31 Guilfoyle, ibid., 141. 32 Petretto, see note 21, 11 deliberates on the existence of ad-hoc agreements.

See also Alan Cole, piracy programme coordinator of UNODC, who ech-oes pirates’ reports that “some level of cooperation with the al Shabaab is


Indeed, this presumption, which used to be more an educated guess than a fact, has been proven in part by recent developments. In Febru-ary 2011, the al-Shabaab reportedly detained pirates that refused to pay the fifth part of the ransom money attained through the abduction of the MV York.33 This hostile action may in part be attributed to the fact that the Qur’an outlaws piracy.34 Yet the authors would refrain from at-taching too much practical impact to this religious dictate, as the pirati-cal attacks could be considered an act of the Jihad and thus be regarded as justified by the al-Shabaab. In the times of the Barbary Wars, when the United States inquired as to the legal or moral basis of the pirates’ actions, the pirates indeed answered that “it was written in the Koran, that all Nations who should not have acknowledged their authority were sinners, that it was their right and duty to make war upon who-ever they could find and to make Slaves of all they could take as prison-ers, and that every Mussulman who should be slain in battle was sure to go to Paradise.”35

Thus while at first sight, the hostile action of the al-Shabaab to-wards the pirates indicates the lack of an institutional connection be-tween pirates and insurgents, it is quickly revealed that there is and probably has been an ongoing practice of the insurgents to somehow benefit from piracy and that agreements exist between the two groups, making the pirates’ refusal to pay an act which the al-Shabaab regarded as worthy of retaliation and punishment. Along those lines, Jack Lang, Special Adviser of the Secretary-General on Legal Issues related to Pi-racy off the Coast of Somalia, assumes that agreements between the al-Shabaab and pirate groups are indeed an ongoing practice and that they

necessary to run a criminal enterprise”, cited in: “Piracy ransom cash ends up with Somali militants”, Reuters of 6 July 2011. This holds true especially for al-Shabaab strongholds such as Haradheere and Kismayo, ibid.

33 “Somali rebels detain several pirate gang leaders”, Reuters of 17 February 2010.

34 “If anyone kills a person – unless it be for murder or for spreading mischief in the land – it would be as if he killed all people. And if anyone saves a life, it would be as if he saved the life of all people” (Qur’an 5:32). “Spreading mischief in the land” (Fasad fil-ardh) has been famously interpreted to in-clude piracy. On this basis the al-Shabaab has executed counter-piracy op-erations in the past, J. Gettleman/ M. Ibrahim, “Insurgents’ Seizure of a Pi-rate Base in Somalia Raises Questions About Its Future”, New York Times of 3 May 2010, A4.

35 American Peace Commissioners to John Jay, 28 March 1786, reprinted in: Boyd/ Bryan/ Hutter, see note 13, Vol. 9, 354.


sometimes entail that pirate groups hand over up to 30 per cent of the ransom payment to the terrorist group.36 In some geographical areas in which it has a strong presence, especially in southern and central Soma-lia, the al-Shabaab imposes taxes on ransom payments for vessels.37

It can only be guessed in how many cases pirates agreed to pay a part of the ransom to al-Shabaab, but the recent “relocation of the pi-rates to the south of Somalia in areas controlled by Al-Shabaab”38 sug-gests that such agreements have been made on a reliable basis and that ransom payments will continue to finance al-Shabaab’s actions inside and outside Somalia.

Treading a little further on this path, ransom payments reportedly reached record sums of up to US$ 9 million.39 Although one should ex-ercise care when basing an argument on record sums, as both media as well as pirates may have an interest in exaggerating the sum, those fig-ures do not seem to be too far-fetched. To put this into a terrorist-threat-perspective, a fifth of one major ransom payment – US$ 1.8 mil-lion – is more than three times the estimated costs of the 9/11 attacks organized by al-Qaida,40 the terrorist organization that al-Shabaab is aligned with. On the lower end of financial expenditure lie the October 2000 attack on the USS Cole and the Madrid attacks in March 2004, which are believed to have cost about US$ 10,000 each.41 One can only imagine the actual present and future terrorist threat for the interna-tional community being caused by shipowners’ payments of ransom to Somali pirates, when the annual sum of ransom payments is considered, which was somewhere around US$ 82 million in 2009, putting the pos-sible terrorists’ share, provided they frequently benefited from those

36 Lang, see note 18, para. 24. 37 A Reuters investigation even lists specific payments made by pirate groups

to al-Shabaab’s “marine office”, see “Piracy ransom cash ends up with So-mali militants”, see note 32.

38 Lang, see note 18, para. 24. 39 Ibid., para. 96; ECOSOC, Commission on Crime Prevention and Criminal

Justice, Report of the Executive Director, Doc. E/CN.15/2011/18 of 10 February 2011, para. 9.

40 P. Williams, “Warning Indicators and Terrorist Finances”, in: J.K. Giraldo/ H.A. Trinkunas (eds), Terrorism Financing and State Responses, 2007, 72 et seq.

41 Ibid., 78.


payments, somewhere between US$ 16 million to US$ 27 million.42 Certainly those developments may undermine the recent hopes that the death of Usama bin Laden will financially weaken al-Shabaab.43

Apart from these obvious and pressing issues of international secu-rity, the payment of ransoms also has a detrimental effect on the situa-tion in Somalia itself. While in most cases the money does not contrib-ute to better the situation of the Somalis themselves, it has even further destabilized Somalia. Moreover, it may prove to empower fundamental-ist forces to such a degree that they may actually wield the power to loosen the already weak grip which the TFG has over Mogadishu.

2. Legal Issues beyond Ransom Payments

The developments that have just been delineated have legal conse-quences. Besides legal problems entailed by the payment of ransom to pirates, which in turn may finance terrorists, other difficulties may arise when the cooperation between pirates and terrorists develops further. One of the paramount problems seems to be very basic, i.e. whether the acts of the Somali pirates in fact remain piratical acts in a legal sense or whether they turn into terrorism, making applicable a whole other legal regime. Such a change in the legal regime would have significant conse-quences. Leaving the legality of ransom payments for a while, which will be addressed in extenso in the course of this contribution, there are remarkable differences in the legal regimes of combating terrorism and combating piracy. The interdiction of a vessel for instance is legal with-out flag state consent only in cases of piracy (article 107 United Nations Convention on the Law of the Sea – UNCLOS44). In the case of a ship hijacked by terrorists, the flag state must generally permit a boarding of the vessel, e.g. by military or coast guard personnel of another state.45 42 Monitoring Group on Somalia established pursuant to S/RES/1853 (2008)

of 19 December 2008, cited in: Lang, see note 18, fn. 44. 43 BBC Monitoring Africa, “Bin Ladin’s death weakens Somali’s terrorist

group – Ethiopian minister”, 4 May 2011. 44 UNTS Vol. 1833, 397 et seq. 45 For an account regarding interdiction rights of states T.M. Brown, “For the

‘Round and Top of Sovereignty’: Boarding Foreign Vessels at Sea on Ter-ror-Related Intelligence Tips”, Journal of International Maritime Law 16 (2010), 45 et seq.; D. König, “Der Einsatz von Seestreitkräften zur Verhin-derung von Terrorismus und Verbreitung von Massenvernichtungswaffen sowie zur Bekämpfung der Piraterie: Mandat und Eingriffsmöglichkeiten”,


The principle of universal jurisdiction, which means that any state can prosecute an act regardless of any sufficient connection or genuine link between the act and the state, is only applicable in cases of piracy and not – at least not without an international treaty prescribing this46 – in cases of terrorism.47

in: A. Zimmermann et al. (eds), Moderne Konfliktformen – Humanitäres Völkerrecht und privatrechtliche Folgen, 2010, 203 et seq. (206-224); D. Guilfoyle, Shipping Interdiction and the Law of the Sea, 2009; A. von Ar-nauld, “Die moderne Piraterie und das Völkerrecht”, AVR 47 (2009), 454 et seq. (455 et seq.); R. Wolfrum, “Fighting Terrorism at Sea: Options and Limitations under International Law”, in: M.H. Nordquist et al. (eds), Le-gal Challenges in Maritime Security, 2008, 1 et seq.; W. Heintschel von Heinegg, “The United Nations Convention on the Law of the Sea and Maritime Security Operations”, GYIL 48 (2005), 151 et seq.; id., “Current Legal Issues in Maritime Operations: Maritime Interception Operations in the Global War on Terrorism, Exclusion Zones, Hospital Ships and Mari-time Neutrality”, Isr. Y. B. Hum. Rts 34 (2004), 151 et seq.; M.A. Becker, “The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea”, Harv. Int’l L. J. 46 (2005), 131 et seq.

46 M.H. Morris, “Universal Jurisdiction in a Divided World: Conference Re-marks”, New England Law Review 35 (2000-2001), 337 et seq. (348 et seq.) argues against the proposition that the applicability of universal jurisdic-tion can be prescribed by an international treaty.

47 For the applicability of the universality principle regarding piracy H. Grotius, De jure belli ac pacis, Liber 2, Ch. 20, No. 40; PCIJ, The Case of the S.S. “Lotus”, PCIJ Series A, No. 10, Judge Moore, Dissenting Opinion, 65 et seq. (70); ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Reports 2002, 3 et seq., Judges Higgins/ Kooijmans/ Buergenthal, Joint Separate Opinion, 64 et seq. (81); I. Brownlie, Principles of Public International Law, 7th edition 2008, 307; E. Kontorovich, “The Piracy Analogy: Modern Universal Jurisdiction’s Hol-low Foundation”, Harv. Int’l L. J. 45 (2004), 183 et seq. (188-194); J.M. Goodwin, “Universal Jurisdiction and the Pirate: Time for an Old Couple to Part”, Vand. J. Transnat’l L. 39 (2006), 973 et seq., argues de lege ferenda against the applicability on the basis of conflicts with internationally rec-ognized standards of fair trial; for these reasons, G.D. Gabel suggests draft guidelines for dealing with pirates in: “Smoother Seas Ahead: The Draft Guidelines as an International Solution to Modern-Day Piracy”, Tulane Law Review 81 (2007), 1433 et seq. For a historical account of the devel-opment of the universality principle for piracy see A.P. Rubin, “Law of Pi-racy”, Den. J. Int’l L. & Pol’y 15 (1986-1987), 173 et seq. (224 et seq.). Dif-ferent theories exist, however, on the applicability of the principle of uni-versality for terrorism. K. Ambos, “Vorbemerkungen zu den §§ 3-7”, in: W. Joecks/ K. Miebach (eds), Münchener Kommentar zum StGB, 2003,


Qualifying a perpetrator as a terrorist would then mean that prose-cution in a third state, e.g. Kenya, was a breach of international law, unless a genuine link could be established. This may in turn render all diplomatic efforts to establish a cooperation agreement with other third states, which then undertake to prosecute suspects, fruitless. As such, it may prove to be of significant practical importance how acts of mari-time violence are qualified legally.

In article 101 UNCLOS, piracy is defined as, “(a) any illegal acts of violence or detention, or any act of depreda-tion, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

para. 55, not only supports its applicability, but suggests that this question is beyond dispute; see however G. Werle/ F. Jeßberger, in: H.W. Laufhütte/ R. Rissing-van-Saan/ K. Tiedemann (eds.), Strafgesetzbuch Leipziger Kommentar, 12th edition 2007, vor § 3, para. 241; G. Werle, Völkerstraf-recht, 2nd edition 2007, fn. 368 argues against its applicability in the ab-sence of specific treaty law. Indeed, based on the numerous international treaties regarding terrorism, some aspects of terrorism fall under the uni-versality principle. To state that terrorism as such is covered by the princi-ple would, however, mean to drag a quickly evolving phenomenon under a legal regime which was not made for it. Practical challenges are evident since there is no internationally binding definition of terrorism, which in turn would mean that the principle of universality could potentially apply to an unmanageable number of acts, granting every state discretion whether to apply the principle or not. See also A.D. Buzawa, “Cruising with Ter-rorism: Jurisdictional Challenges to the Control of Terrorism in the Cruis-ing Industry”, Tulane Maritime Law Journal 32 (2007-2008), 181 et seq. (186 et seq.); A.J. Colangelo, “The New Universal Jurisdiction: In Absentia Signaling over Clearly Defined Crimes”, Georgetown Journal of Interna-tional Law 36 (2005), 537 et seq. (594). For the lack of an internationally accepted definition of terrorism see B. Saul, Defining Terrorism in Interna-tional Law, 2006; A.P. Schmid/ A. J. Jongman et al. published the analysis Political Terrorism: A New Guide to Actors, Authors, Concepts, Data Bases, Theories, and Literature, 1988, in which 109 officially used different defini-tions are analysed, ibid., 5-6. Perry analyses and compares 22 different definitions in official use at the level of US-American federal legislation alone, N.J. Perry, “The Numerous Federal Legal Definitions of Terrorism: The Problem of Too Many Grails”, Journal of Legislation 30 (2003-2004), 249 et seq.


(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or air-craft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).” As such, the core concept of piracy – the act on the sea itself pursu-

ant to subparagraph (a) – is characterized by three components: first, the area in which it is committed, meaning the high seas or the exclusive economic zone of a state (article 58 (2) UNCLOS) (locus delicti);48 sec-ond, that the act is directed from one ship to another ship (two-ship-requirement); and third, that it is committed for “private ends”.49

This leaves us with a very narrow definition.50 If pirates and terror-ists formally joined forces and continued to operate against trade ves-sels, the first two requirements may regularly be satisfied. However, the third may not. One of the reasons for which the private-ends-requirement was included in the piracy regime of UNCLOS’s predeces-

48 Article 101 (a) UNCLOS only lists the high seas and places outside the ju-

risdiction of any state as a possible locus delicti, however article 58 (2) UNCLOS extends the piracy regime to acts in the exclusive economic zone.

49 A suggestion to delete the phrase “for private ends” did not succeed on the occasion of the Third UN-Conference on the Law of the Sea, S.N. Nan-dan/ S. Rosenne/ N.R. Grandy (eds), United Nations Convention on the Law of the Sea 1982, A Commentary, Vol. III, 1995/2002, 198 et seq. As such, according to today’s predominant understanding of the piracy re-gime, politically motivated acts do not constitute piracy. They are, how-ever, included in the International Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Conven-tion) of 1988 and the SUA Protocol of 2005.

50 For de lege ferenda criticism of this narrow construction see e.g. J.L. Jesus, “Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects”, International Journal of Marine and Coastal Law 18 (2003), 363 et seq. (380 et seq.); Zou K., “Seeking Effectiveness for the Crackdown of Piracy at Sea”, J. Int’l Aff. 59 (2005), 117 et seq. (118 et seq., 131); D. Guil-foyle, “Piracy off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts”, ICLQ 57 (2008), 690 et seq. (694); R. Collins/ D. Hassan, “Applications and Shortcomings of the Law of the Sea in Combating Piracy: A South East Asian Perspective”, Journal of Mari-time Law & Commerce 40 (2009), 89 et seq. (95 et seq.).


sor, the Convention on the High Seas of 1958,51 is that states were eager to avoid the applicability of the universality principle for their own ac-tions, in order to circumvent conflicts between nations.52 After the So-viet Union accused China and its Nationalist Chinese naval forces of conducting and the United States of abetting piratical acts in the China Sea, states felt the need to exclude their own conduct from the reach of the universality principle, which would otherwise have allowed every other state to adjudicate on their actions.53 As a result, the private-ends-requirement was included in the Convention on the High Seas and later it was incorporated into UNCLOS as well.

Today the requirement is widely interpreted to include motivations such as enrichment, vandalism and revenge,54 while excluding not only state actions, but all actions committed for political motives of any kind, rendering article 101 UNCLOS inapplicable to virtually all ter-rorist acts. When assessing the legal consequences of a joining of forces of pirates and terrorists, the key question thus becomes: are the acts committed for private ends, even though they may finance acts under-taken for political ends, terrorist acts? As such the question can be boiled down to the significance of long-term-objectives. Thus we are left with two secure positions and a question:

51 Convention on the High Seas, UNTS Vol. 450, 11 et seq., article 15. 52 Morris, see note 46, 339 et seq.; C. Crockett, “Toward a Revision of the In-

ternational Law of Piracy”, DePaul Law Review 26 (1976), 78 et seq. (88); L. Reydams, Universal Jurisdiction, 2003, 58. It has to be noted, however, that this was only one motive for including the private ends requirement. It was well established before the Convention on the High Seas that piracy includes mainly acts committed for a personal motive, such as “personal greed or […] personal vengeance”, while the “man who acts with a public object […] is not only not the enemy of the human race but he is the enemy solely of a particular state”, W.E. Hall, A Treatise on International Law, 1917, Part II, Ch. 6.

53 Morris, see note 46, 339 et seq.; for an interesting account of this conflict see D.H.N. Johnson, “Piracy in Modern International Law”, Transactions of the Grotius Society 43 (1957), 63 et seq. (64): “It was alleged by the So-viet Union and its supporters that the activities in the China Sea of the Na-tionalist Chinese naval forces, aided and abetted by those of the United States, were ‘piratical’ – a point of view which was of course vigorously de-nied by the spokesmen of the countries concerned.”

54 Jesus, see note 50, 378; M. Halberstam, “Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety”, AJIL 82 (1988), 269 et seq. (274 et seq.).


-First, the hijacking of a ship solely for the enrichment of the abduc-tors may qualify as piracy. -Second, the hijacking of a ship in order to move states to release political prisoners or terrorists is no piracy. The question remains: what if a ship is abducted for ransom and as such for enrichment, but the ransom is ultimately fully or in part used to finance terrorist acts? To address the general differences between the legal regimes govern-

ing piracy and terrorism, some commentators suggest a wider interpre-tation of the term “private ends”.55 Although state practice to date does not seem to back this suggestion, it could be a viable solution to press-ing issues in the legal categorization of hybrid phenomena and to the struggle against maritime terrorism in general. If the private-ends-requirement was taken to mean what it originally was supposed to mean, then only state actions would be excluded from such a wider no-tion of piracy. In the meantime, terrorist actions, such as the bombing of the USS Cole and acts similar to the hijacking of the Achille Lauro, taking place on the high seas or in an exclusive economic zone, would fall under the definition.56 They are undertaken for political motives, but as they do not qualify as state actions, they are included in a wider understanding of piracy. As already mentioned, this suggestion seems to go far beyond the currently predominant understanding of the concept “piracy” and as such is de lege ferenda, but it could solve some of the difficulties connected to the fight against maritime terrorism and possi-bly upcoming problems in dealing with hybrid forms.

To come back to today’s situation in Somalia, even judging from the narrow interpretation of the private-ends-requirement, it seems sensible to still regard the acts committed by the Somali perpetrators as piracy by the law of nations, even though ties between piracy and terrorism may exist. It may be a consequence of these acts that terrorist activities are funded, but it is certainly so far not the motivation of the pirates to finance terrorism. Somali pirates more or less pay a part of the ransom money as “protection money”, as “danegeld” themselves, but still com-mit the acts solely for their own enrichment. However, this develop-ment will have to be observed closely. As soon as terrorist organiza- 55 Guilfoyle, see note 45, 32 et seq.; T. Garmon, “International Law of the

Sea: Reconciling the Law of Piracy and Terrorism in the Wake of Septem-ber 11th”, Tulane Maritime Law Journal 27 (2002), 257 et seq. (265).

56 For detailed background information on the Achille Lauro hijacking see M.K. Bohn, The Achille Lauro Hijacking, 2004.


tions abduct ships to finance their agenda, the legal categorization of such an act may have to be re-evaluated, as then the main motive of the abduction of ships may be considered a predominantly political one. Even in that case, however, it would be possible to still regard those acts as piracy, as they are first and foremost committed for personal enrich-ment and then subsequently, on a second level, the organization that committed the act chooses to finance terrorism with the ransom money. Yet one may also argue that more importance needs to be attributed to long-term objectives of the perpetrators, rendering the regime of piracy inapplicable to such an act.

III. Ransom Payments to Pirates and the International Law for the Suppression of Terrorist Financing

To date, no instrument of international law specifically addresses the problem of ransoms paid to pirates.57 Yet different legal regimes have

57 Although just by the letter of UNCLOS, paying ransom to pirates could

even be regarded as piracy itself. Article 101 UNCLOS not only addresses piracy in the sense of acts committed upon the high sea, but also includes “any act of inciting or of intentionally facilitating [such] an act” (article 101 (c) UNCLOS). While including ransom payments as piracy by way of arti-cle 101 (c) UNCLOS was quite surely not within the intent of the drafters, the mere wording opens up this possibility of interpretation. Objectively, the payment of ransom has proven to facilitate piracy in Somalia. One may argue that the paying of ransom does not entail a voluntary or intentional facilitation, as usually shipowners only intend to free the crew, cargo and ship. Nevertheless, they will at least regularly know about the aggravating effect of ransom payments on piracy so that the subjective – mens rea – prerequisite may be taken to be fulfilled. Regardless of the detailed re-quirements of the subjective element “intentionally”, the logical conclusion that shipowners paying ransoms are pirates according to international law, while in seeming conformity with the wording of article 101 UNCLOS appears counterintuitive. To solve this legal problem, it may help to intro-duce the German criminal law concept of “necessary participation” (not-wendige Teilnahme) in this discussion, which excludes from the crime itself the participation of the victim – as the object of legal protection – that is necessary to commit the specific offence. By way of example, the victim of usury does not commit the offence, although the act could not have been committed without the victim’s consent and may even have been initiated by the victim, see C. Roxin, Strafrecht Allgemeiner Teil, Vol. 2, 2003, 141 et seq.


been created over the course of the long last decade to tackle more gen-erally terrorist financing, including the International Convention for the Suppression of the Financing of Terrorism and several resolutions by the UN Security Council. From the lawyer’s point of view, the issue comes down to whether these documents provide for any regulation concerning ransom payments to pirates. A first crucial question to be answered for each of them is whether their approach to “terrorism” is broad enough in scope to cover forms of piracy such as can contempo-rarily be observed, for instance, around the Horn of Africa. In addition, it needs to be assessed whether the Convention or the relevant Security Council resolutions propose any binding guidelines on how to resolve the conflict between interests – with the prevention of future crimes on the one side and the protection of hostages on the other – which is cre-ated when ships are hijacked and crews taken as hostage to extort ran-soms.

1. International Convention for the Suppression of the Financing of Terrorism

The International Convention for the Suppression of the Financing of Terrorism is one of the more recent in a series of counterterrorism trea-ties that have been adopted since the issue of international terrorism re-surfaced in the late 1950s.58 As part of the overall international strategy 58 See in particular the treaties listed in the Annex to the Terrorist Financing

Convention: Convention for the Suppression of Unlawful Seizure of Air-craft of 16 December 1970, UNTS Vol. 860, 105 et seq., ILM 10 (1971), 133 et seq. (entered into force 14 October 1971); Convention for the Suppres-sion of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971, UNTS Vol. 974, 177 et seq., ILM 10 (1971), 1151 et seq. (entered into force 26 January 1973); Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 24 February 1988, UNTS Vol. 1589, 474 et seq., ILM 27 (1988), 627 et seq. (entered into force 6 August 1989); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 14 December 1973, UNTS Vol. 1035, 167 et seq., ILM 13 (1974), 41 et seq. (entered into force 20 February 1977); International Convention against the Taking of Hostages of 17 De-cember 1979, UNTS Vol. 1316, 205 et seq., ILM 18 (1979), 1456 et seq. (en-tered into force 3 June 1983); Convention on the Physical Protection of Nuclear Material of 3 March 1980, UNTS Vol. 1456, 124 et seq., ILM 18


to combat terrorism, the suppression of terrorist financing has come to play an increasingly central role.59 In late 1998, France initiated the elaboration within the United Nations of a multilateral convention to tackle the financing of terrorism.60 Over the course of the following year, negotiations were conducted in the Ad Hoc Committee that had been established pursuant to General Assembly Resolution 51/210 “to address means of further developing a comprehensive legal framework of conventions dealing with international terrorism”61 as well as in the

(1979), 1419 et seq. (entered into force 8 February 1987); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Naviga-tion of 10 March 1988, UNTS Vol. 1678, 221 et seq., ILM 27 (1988), 668 et seq. (entered into force 1 March 1992); Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Conti-nental Shelf of 10 March 1988, UNTS Vol. 1678, 304 et seq., ILM 27 (1988), 685 et seq. (entered into force 1 March 1992); International Convention for the Suppression of Terrorist Bombings of 15 December 1997, UNTS Vol. 2149, 256 et seq., ILM 37 (1998), 249 et seq. (entered into force 23 May 2001). See also International Convention for the Suppression of Acts of Nuclear Terrorism of 13 April 2005, UNTS Vol. 2445, 89 et seq., ILM 44 (2005), 815 et seq. (entered into force 7 July 2007). For a brief sketch of the history of international counterterrorism efforts, see I. Bantekas, “The In-ternational Law of Terrorist Financing”, AJIL 97 (2003), 315 et seq. (315-316).

59 Following the attacks of 9/11, the Security Council became the principal forum for the adoption of multilateral counterterrorism measures, and it increasingly emphasized the need to tackle terrorist financing, see Bante-kas, see note 58, 315. With a view to action by the Security Council on this issue, see below under III. 2.

60 See the statement made by the French Minister for Foreign Affairs during the 1998 general debate of the General Assembly, Doc. A/53/PV.11 of 23 September 1998, 15 et seq. (18); see also the Letter dated 3 November 1998 from the Permanent Representative of France to the United Nations ad-dressed to the Secretary-General, Doc. A/C.6/53/9 (including, as an Annex, a first draft for an international convention for the suppression of terrorist financing) of 4 November 1998. For a brief sketch of the origins of this ini-tiative, including discussions within the context of the EU and the G8, see A. Aust, “Counter-Terrorism – A New Approach: The International Con-vention for the Suppression of the Financing of Terrorism”, Max Planck UNYB 5 (2001), 285 et seq. (286).

61 A/RES/51/210 of 17 December 1996, para. 9; while the primary focus of the committee was to be on the elaboration of conventions for the suppres-sion of terrorist bombings and, subsequently, of acts of nuclear terrorism (ibid.), the General Assembly specifically tasked the Ad Hoc Committee


Sixth Committee of the General Assembly.62 On 9 December 1999, the General Assembly adopted without a vote the International Conven-tion for the Suppression of the Financing of Terrorism and requested that it be opened for signature.63 The Convention entered into force on 10 April 2002 and has, as of July 2011, 174 parties.64

The Convention complements existing counterterrorism conven-tions and responds to the understanding that the number and serious-ness of terrorist acts is contingent on the amount of available funds. Acknowledging that previous treaties had failed to specifically address this issue, it undertakes to fill the gap by promoting international coop-eration among states in preventing the financing of terrorism and in suppressing it through prosecution and punishment of the perpetra-tors.65 The core of the Convention is the definition of terrorist financ-ing and its establishment as an offence, along with the ancillary offences of attempt, co-perpetration and complicity, in article 2.66 State parties commit themselves to criminalize these offences and to make them pun-ishable by appropriate penalties.67 This obligation is complemented, in-ter alia, by incorporation of the principle “aut dedere aut judicare”,

with drafting a convention for the suppression of terrorist financing in A/RES/53/108 of 8 December 1998, paras 11-12.

62 For an overview of the preparatory works see especially Report of the Ad Hoc Committee established by General Assembly Resolution 51/210 of 17 December 1996, Third Session (15 to 26 March 1999), Doc. A/54/37 of 5 May 1999; General Assembly, Working Group of the Sixth Committee, Measures to Eliminate International Terrorism, Report of the Working Group, Doc. A/C.6/54/L.2 of 26 October 1999; General Assembly, Sixth Committee, Measures to Eliminate International Terrorism: Report of the Sixth Committee, Doc. A/54/615 of 30 November 1999.

63 A/RES/54/109 of 9 December 1999; see also Doc. A/54/PV.76 of 9 Decem-ber 1999, 8.

64 See United Nations Treaty Service, available at <http://treaties.un.org>. 65 International Convention for the Suppression of the Financing of Terror-

ism, preamble, paras 10-12; cf. also Report of the Ad Hoc Committee, see note 62, para. 27.

66 See already the travaux préparatoires, Report of the Working Group, see note 62, Annex III, para. 6.

67 Article 4 International Convention for the Suppression of the Financing of Terrorism.


demanding extradition or prosecution of an alleged offender, as well as by a sanctions regime that includes the freezing and seizure of funds.68

Whether the Convention extends to the payment of ransoms to pi-rates and obligates state parties, at least in principle, to criminalize and suppress such transactions and to punish the persons involved depends on two factors: firstly, the concept of “terrorism” as considered by the Convention must include the phenomenon of piracy; and, secondly, the payment of ransoms must qualify as “financing” in the meaning cir-cumscribed by the Convention. Whether such is the case is to be de-termined by analysing the Convention according to the rules of treaty interpretation codified in articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT).69 Pursuant to article 31 (1) VCLT, the terms of the Convention’s provisions must primarily be construed in accordance with their ordinary meaning in their context and in the light of the object and purpose of the Convention.

68 See in particular article 8 (1) International Convention for the Suppression

of the Financing of Terrorism; cf. already Report of the Ad Hoc Committee, see note 62, paras 31-32; for a general overview of the structure, approach and substance of the Convention, see C.M. Johnson, “Introductory Note to the International Convention for the Suppression of the Financing of Terrorism”, ILM 39 (2000), 268 et seq. (268-269).

69 Vienna Convention on the Law of Treaties (VCLT) of 23 May 1969, UNTS Vol. 1155, 331 et seq., ILM 8 (1969), 679 et seq. (entered into force 27 Janu-ary 1980); itself a treaty, the VCLT applies directly to written agreements (article 2 (1)(a) VCLT) concluded between two or more of its state parties following its entry into force (article 4 VCLT). As the ICJ has repeatedly affirmed, the rules contained in arts 31 and 32 VCLT are also a well-recognized part of customary international law, see e.g. Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 13 July 2009, Judgment, available at <http://www.icj-cij.org/docket/files/133/15321.pdf>, para. 47; and Case Concerning the Ap-plication of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007, ICJ Reports 2007, 43 et seq. (109 et seq., para. 160). As such, they also apply to treaties concluded with or between third states. For a more differentiated view on the customary status of arts 31 and 32 cf., however, M.E. Villiger, Commentary on the 1969 Convention on the Law of Treaties, 2009, article 31 para. 37, article 32 para. 13 (with further refer-ences to judicial and scholarly opinions).


a. Application of the International Convention for the Suppression of the Financing of Terrorism to the Funding of Piratical Acts?

Although the line between the two phenomena is blurred in practice, terrorism and piracy are in principle two different concepts, distin-guished by the political or private nature of the purpose for which they are committed respectively.70 There is thus good reason to question whether the International Convention for the Suppression of the Fi-nancing of Terrorism covers funding of piratical activities at all. So far, the issue has rarely been touched upon in international legal scholar-ship, and commentaries on the Convention or on international coun-terpiracy law suggest support for either answer to the question. On the one hand, it has been submitted that the Convention is different from prior counterterrorism treaties in that it may only apply to offences that are committed for terrorist purposes.71 On the other hand, the Conven-tion has occasionally been mentioned in the discussion of international legal instruments to combat piracy.72 The current state of literature is thus inconclusive.

The key to answering the question of whether the funding of pirati-cal activities falls within the ambit of the Convention is the definition of the offence in article 2 (1),

“Any person commits an offence within the meaning of this Con-vention if that person by any means, directly or indirectly, unlaw-fully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hos-

70 See above under II. 2. 71 See, though without specific consideration of piratical activities, R. Lavalle,

“The International Convention for the Suppression of the Financing of Terrorism”, ZaöRV/ HJIL 60 (2000), 491 et seq. (505).

72 R. Geiß/ A. Petrig, Piracy and Armed Robbery at Sea: The Legal Frame-work for Counter-Piracy Operations in Somalia and the Gulf of Aden, 2011, 12 et seq.; Roach, see note 3, 408; id., “Documents on countering pi-racy off the coast of Somalia”, in: Piracy and Legal Issues: Reconciling Pub-lic and Private Interests, Annex II, 48 of 1 October 2009, available at <http://www.chathamhouse.org.uk/files/15221_011009piracy_law.pdf>.


tilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.” The Convention thus takes a two-pronged approach in defining the

“financing of terrorism”. Common to both limbs of the tandem is the objective element of an unlawful provision or collection of funds, cou-pled with a corresponding subjective criterion (“wilfully”), excluding a merely accidental or negligent commission of the offence.73 A duality has then been chosen by the Convention’s drafters to delineate the acts for which the funds, according to the intention or knowledge of the of-fender, are to be used: subparagraph (a) incorporates all those offences defined under any one of the conventions listed in the Annex,74 while subparagraph (b) creates a “mini-definition”75 of terrorism for the pur-poses of the Convention.

The application of the Convention to persons initiating or facilitat-ing the payment of ransoms to pirates thus hinges on whether the ac-tivities to be funded by these means come within the ambit of the two subparagraphs.76 If they are, in turn, piratical in nature, aimed at gener- 73 Given the further specification of the required intention or knowledge, it

has been doubted that this explicit stipulation of wilful action was indeed necessary, see Aust, see note 60, 295; cf. also M. Pieth, “Criminalizing the Financing of Terrorism”, Journal of International Criminal Justice 4 (2006), 1074 et seq. (1081-1082). For a detailed discussion of the structure and ele-ments of article 2 (1) of the International Convention for the Suppression of the Financing of Terrorism, ibid., 1079-1082.

74 For a state ratifying the International Convention for the Suppression of the Financing of Terrorism that is not party to a treaty listed in the Annex, or ceases to be so, article 2 (2) of the Convention allows for the deposit of a Declaration excluding that treaty from the application of the Convention to that party. Further treaties may be added to the Annex pursuant to the procedure set forth in article 23 of the Convention.

75 Aust, see note 60, 291; J.M. Koh, Suppressing Terrorist Financing and Money Laundering, 2006, 63.

76 Without relevance at this stage is, however, the fact that the process of fi-nancing itself is due to an act of piracy. As a matter of fact, terrorist organi-zations avail themselves of both lawful and unlawful ways to obtain the necessary funds for their terrorist activities, see e.g. Bantekas, see note 58, 316; K. Wolny, Die völkerrechtliche Kriminalisierung von modernen Akten des internationalen Terrorismus: Unter besonderer Berücksichtigung des Statuts des Internationalen Strafgerichtshofs, 2008, 109-110. As Waszak ex-plains, the key difference between terrorist financing and money launder-


ating economic benefits for private ends, they fail the requirements of the independent definition of terrorist acts in subparagraph (b), at the core of which is the political purpose of intimidating a population or coercing a government or an international organization into action or inaction.

Yet at least two different ways are perceivable in which the Conven-tion may be brought into effect by ransoms paid to pirates: to begin with, and to the extent that the monies generated as ransoms are chan-nelled into the funds of terrorist groups, such as the al-Shabaab in So-malia, they may well be, in full or in part, an indirect form of financing terrorist acts in the sense of subparagraph (b). Difficulties in these con-stellations will pertain primarily to the mens rea of article 2 (1) of the Convention, as the use of the money must have been covered by the in-tent of the persons involved in the ransom payment.77 Another trigger for the Convention’s application would be a broader rather than nar-rower interpretation of article 2 (1) and namely subparagraph (a) as criminalizing also the financing of acts that serve purely private pur-poses and are thus without any ambiguity piratical and not terrorist.

The wording of article 2 (1)(a) of the Convention plainly refers to the treaties listed in the Annex and the offences defined therein without

ing, two phenomena which otherwise share central features, is that “money laundering cleans dirty money” while “terrorist financing dirties clean money”, see J.D.G. Waszak, “The Obstacles to Suppressing Radical Islamic Terrorist Financing”, Case W. Res. J. Int’l L. 36 (2004), 673 et seq. (674-676). The International Convention for the Suppression of the Financing of Terrorism consequently disregards the source from which the funds con-cerned are obtained, see article 1 (1) (“assets of every kind, [...] however ac-quired”); cf. already on the draft convention prepared by France, Report of the Ad Hoc Committee, see note 62, para. 28. For a different reason, namely with a view to the element of extortion inherent in ransom trans-fers, the piratical context of the acquisition and provision of the payment will, however, be of relevance when it comes to establishing the actus reus of article 2 (1) of the Convention requiring “unlawful” financing, see below under III. 1. b.

77 On difficulties in identifying the required intention or knowledge of the terrorist use to which the funds are to be put, cf. also more generally Lavalle, see note 71, 501-504 (arguing that, in most cases, it will not be pos-sible to prove a direct link between the collection or provision of certain funds and a specific offence as covered by article 2 (1) of the Convention, and submitting that, therefore, it should suffice that the collector or pro-vider knows that the recipients are terrorists and will probably use them for terrorist activities falling within either subparagraph (a) or (b)).


indicating any further limitation, such as with a view to the purpose for which these are committed. Yet the 1979 International Convention Against the Taking of Hostages (Hostages Convention)78 as well as the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention)79 equally apply to crimes committed for private ends just as to those committed for politi-cal purposes, and may therefore be relevant in the context of piracy.80 Then again, the general rule of interpretation codified in article 31 (1) VCLT demands that account be taken of the context in which the terms of a treaty are used.

The relevant context comprises the entire text of the treaty, includ-ing its preamble.81 While the notion “terrorism” is featured in none of the operative provisions of the International Convention for the Sup-pression of the Financing of Terrorism, it dominates the entire agree-ment due to its prominent mention in the title82 and the virtually exclu-sive preoccupation with this concept that can be observed in the pre-amble.83 Moreover, subparagraph 1 (b) of article 2 defines a category of acts that share amongst themselves, and with the broadly accepted un-derstanding of terrorism, a political purpose.84 These observations could suggest a narrower interpretation also of subparagraph 1 (a), es-tablishing the financing of the relevant acts under the listed treaties as an offence only where they are committed with a terrorist intention ac-cording to the contributor’s intent.85

78 International Convention against the Taking of Hostages, see note 58. 79 Convention for the Suppression of Unlawful Acts against the Safety of

Maritime Navigation, see note 58. 80 Cf. article 3 (1) SUA Convention, ibid.; article 1 (1) International Conven-

tion against the Taking of Hostages, see note 58; see also Roach, see note 3, 407; Geiß/ Petrig, see note 72, 13.

81 See article 31 (2) VCLT. 82 It may be noted that even amongst the treaties listed in the Annex to the

Convention there is only one, the International Convention for the Sup-pression of Terrorist Bombings, which equally refers to the notion of ter-rorism in its title.

83 Except for the very first, which reaffirms the fundamental purposes and principles of the United Nations, every preambular paragraph mentions terrorism directly or indirectly by reference to previous paragraphs or to resolutions of the UN General Assembly.

84 Cf. already above, text following note 76 and under II. 2. 85 Such a construction would seem to correspond to Lavalle’s contention that

contrary to the other “counterterrorism treaties” mentioned in the Annex,


Construing subparagraph 1 (a) in this sense would, however, con-tradict the overall structure of article 2 and finds no support in either the purpose or the drafting history of the Convention. Pursuant to the architecture of the norm, the purpose of intimidation of a population or coercion of a government or international organization qualifies only “[a]ny other act intended to cause death or serious bodily injury to a ci-vilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict” as mentioned in subparagraph (b), but not the offences defined in the specified conventions according to sub-paragraph (a) in conjunction with the Annex.86

The objective of the International Convention for the Suppression of the Financing of Terrorism, which is the final element to be consid-ered under the general rule of treaty interpretation according to article 31 (1) VCLT, provides no grounds for rebutting this systematic argu-ment. In light of the preamble and the drafting history of the Conven-tion, its objective, for present purposes, may be described broadly as the prevention of terrorist acts, to be promoted specifically by prevent-ing and suppressing the financing of international terrorism.87 In default of a recognized definition of terrorism, this aim had previously been pursued by the “piecemeal approach”88 of adopting the very conven-tions listed in the Annex, which criminalize specific categories of acts

the International Convention for the Suppression of the Financing of Ter-rorism applies to terrorism-related offences only, cf. Lavalle, see note 71, 505.

86 To apply to the acts incorporated in the definition by subparagraph (a), the qualifier as regards the perpetrators’ purpose would have had to be stated in a final clause rather than within subparagraph (b):

“[...] in order to carry out: (a) An act which constitutes an offence within the scope of and as defined

in one of the treaties listed in the annex; or (b) Any other act intended to cause death or serious bodily injury to a ci-

vilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict,

when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.”

87 Cf. International Convention for the Suppression of the Financing of Ter-rorism, preamble, paras 9-12; cf. also Report of the Working Group, see note 62, Annex III, para. 6; further specifications of this purpose are possi-ble but unnecessary at this point and will be left for discussion in the rele-vant context, see below, text accompanying notes 107-108.

88 Aust, see note 60, 291.


that are typically committed by terrorists but may also be part of other criminal endeavours.89

There is no evidence that this approach of combating terrorism by broadly targeting activities that are often related but may potentially be unrelated to terrorist goals was given up in the International Conven-tion for the Suppression of the Financing of Terrorism. In particular, the definition of another category of acts in light of the perpetrators’ terrorist motivation in subparagraph 1 (b) of article 2 served to com-plement the previous “piecemeal” by criminalizing also the funding of terrorist killings that are committed through none of the means and in none of the contexts covered by the specialized conventions.90 Thus, even if the ultimate purpose of the Convention is to prevent “terror-ism”, this is no reason to construe the reference to other counterterror-ism conventions in article 2 (1)(a) more narrowly than those treaties themselves. This position finds additional support in the preparatory works, which may be resorted to as a supplementary means of interpre-tation confirming the meaning suggested by an interpretation of the terms of a treaty in light of their context and its purpose, or to resolve persisting ambiguities.91

During the first reading of the French draft convention in the Ad Hoc Committee, an amendment to draft article 2 (1)(a) had been pro-posed by Guatemala, which would explicitly have limited the relevant offences under the existing treaties to those “of a terrorist nature”.92 As

89 Cf. Lavalle, see note 71, 505; see generally on the common basic structure

of the different counterterrorism treaties ibid., 493-494; Johnson, see note 68, 268.

90 Cf. also Lavalle, see note 71, 497; Aust, see note 60, 291-292. This “twofold aim” of the definition in article 2 (1) of the Convention, embracing both the financing of acts falling within the ambit of existing counterterrorism treaties binding upon state parties to the Convention and the financing of murder not covered by existing treaties, was noted as one of the shared un-derstandings that emerged during the general debate on the French draft convention in the Ad Hoc Committee, see Report of the Ad Hoc Commit-tee, see note 62, para. 29.

91 Cf. article 32 VCLT. 92 See Proposal submitted by Guatemala, Doc. A/AC.252/1999/WP.16, re-

printed in: Report of the Ad Hoc Committee, see note 62, Annex III, No. 16, according to which article 2 (1)(a) would have read: “An offence of a terrorist nature within the scope of one of the Conventions listed in the Annex hereto, provided that at the material time the State Party concerned


the Rapporteur noted in his informal summary of the discussions in the Working Group, “[o]pposing views regarding the need to further spec-ify the crimes in the annex to the draft convention were presented” also during the second reading of draft article 2.93 Although the phrasing of draft article 2 (1)(a) underwent further changes in the working paper and draft convention prepared subsequently in the Ad Hoc Committee and the Working Group of the Sixth Committee, no qualifier as pro-posed by Guatemala was included at either stage of the Convention’s evolution, including evidently and most importantly the final version.94 The report of the Ad Hoc Committee and the Rapporteur’s informal summary fail to state the reasons for which the proposed amendments were rejected. Given the ambiguities surrounding the notion of terror-ism, the insertion of a reference to the “terrorist nature” of the acts cov-ered would in fact have been far from further clarifying the offence. Ac-cording to the Rapporteur’s summary, such clarification was, however, the aim of the Guatemalan proposal.95 Yet, quite to the contrary, it could have further complicated the assessment of the scope of the Con-vention.96 Against this backdrop, and in the absence of compelling evi-dence from other sources of interpretation that a concept of “terrorism” should limit the relevant offences under the conventions listed in the

was a party to that Convention”; see also Report of the Ad Hoc Committee, see note 62, Annex IV, para. 20.

93 Report of the Ad Hoc Committee, see note 62, Annex IV, para. 91. 94 Cf. also Working Paper prepared by France on arts 1 and 2, reprinted in:

Report of the Ad Hoc Committee, see note 62, Annex I.B; Revised text pre-pared by the Friends of the Chairman, reprinted in: Report of the Working Group, see note 62, Annex I.

95 Report of the Ad Hoc Committee, see note 62, Annex IV, para. 20. 96 Cf. Higgins, who found in 1997 that “‘[t]errorism’ is a term without legal

significance” but “merely a convenient way of alluding to activities, whether of States or of individuals, widely disapproved of and in which ei-ther the methods used are unlawful, or the targets protected, or both”, R. Higgins, “The general international law of terrorism”, in: R. Higgins/ M. Flory (eds), Terrorism and International Law, 1997, 13 et seq. (28). She continued to observe that no “umbrella concept of ‘terrorism’, over and above the specific topics of hostages, aircraft, protected persons etc.” had been necessary thus far for international law to prohibit and establish juris-diction over relevant types of events, ibid. Cf. also Sorel, for whom “terror-ism” is a “delicate political conception [that], without any clear and ac-cepted definition, can be interpreted in various ways”, J.M. Sorel, “Some Questions About the Definition of Terrorism and the Fight Against Its Fi-nancing”, EJIL 14 (2003), 365 et seq. (372).


Annex, no additional qualifier like the one that had been formally pro-posed yet not adopted should be read into subparagraph (a).

In sum, the International Convention for the Suppression of the Fi-nancing of Terrorism applies broadly to the funding of activities that may or may not fall within a narrower definition of terrorism covering crimes committed for political purposes only, as long as these acts are offences as specified by the Conventions listed in the Annex. The fi-nancing of piratical activities may thus well constitute an offence as de-fined by article 2 (1)(a), namely in conjunction with the SUA and the Hostages Convention.

b. Ransom Payments as Terrorist Financing?

If the financing of piracy may come within the ambit of the Interna-tional Convention for the Suppression of the Financing of Terrorism, the crucial issue then is whether the payment of ransoms is to be con-sidered as an offence as defined by article 2. It has been suggested that “[t]he methods and processes by which ransoms are paid to the pirates operating off the coast of Somalia seem to fit squarely within these definitions [of the offence of financing terrorism in article 2 (1) in con-junction with the annex, and of complicity in article 2 (5)].”97 Indeed, the payment of ransoms, parachuted on board the hijacked vessel, easily constitutes a direct or indirect provision of funds as required by the chapeau of article 2 of the Convention.98 Whether the necessary mens rea can be found is, obviously, ultimately a matter to be assessed indi-vidually for each person in any given case. Yet, since it is an established fact that pirates, especially off the Somali coast, operate as part of what

97 Roach, see note 3, 408. 98 The formulation for which the drafters of the Convention opted is very

broad both with regard to the form of support that may constitute financ-ing and the way by which it is provided. Thus, article 1 (1) defines funds broadly as “assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travellers cheques, money orders, shares, securities, bonds, drafts, letters of credit”. Moreover, the qualifier “by any means, directly or indirectly” in article 2 (1) clarifies that any supplier of funds, be it the originator or an intermediary, commits the offence of financing terrorism, irrespective of the process used to reach the receiver, as long as the other requirements of the provisions, including in particular the necessary mens rea, are satisfied, see Aust, see note 60, 294.


has become a flourishing and well-organized “business”,99 ship opera-tors paying ransoms will regularly know that at least part of the money transferred will flow into further piratical or terrorist acts. In these cir-cumstances, the payment of ransoms to pirates could thus far qualify as an offence under article 2 of the International Convention for the Sup-pression of the Financing of Terrorism which the parties undertake, in principle, to prosecute and punish, notwithstanding the fact that hu-manitarian concerns for the hostages may strongly demand that the pi-rates’ bidding is done. Such an uncompromising stance of international law on ransom payments known to facilitate further terrorist or pirati-cal activities would, in practice, encourage authorities advocating a similarly tough stance on the domestic level.100

Within the International Convention for the Suppression of the Fi-nancing of Terrorism, however, the conflict between the aim of prevent-ing future acts of terrorism and the rescue of victims from current emergency situations is to be considered in light of the remaining com-ponent of the definition in article 2 (1), requiring funds to be “unlaw-fully” provided. The meaning and warrant of this qualifying adverb has aroused some controversies, both during the drafting process of the Convention and in scholarly commentary thereon.101 Prima facie, it may appear at best tautological to circumscribe the scope of terrorist fi-nancing that is to be criminalized by reference to its unlawfulness.102 It 99 Cf. Roach, see note 3, 407. 100 Cf. e.g. Rutkowski, Paulsen and Stoian, who express concern that Security

Council Resolution 1844 on Somalia could be used by the US Department of State in an initiative to make the payment of ransoms to pirates illegal under domestic law, L. Rutkowski/ B.G. Paulsen/ J.D. Stoian “Mugged Twice?: Payment of Ransom on the High Seas”, American University Law Review 59 (2010), 1425 et seq. (1435).

101 See e.g. Lavalle, see note 71, 500-501; Pieth, see note 73, 1080-1081; see also Aust, see note 60, 294-295.

102 It was on the basis of this perception that some delegations proposed the deletion of the term from the draft article 2 (1) of the Convention during the discussion both in the Ad Hoc Committee and the Working Group of the Sixth Committee, see e.g. Proposal submitted by Germany, Doc. A/AC.252/1999/WP.26, reprinted in: Report of the Ad Hoc Committee, see note 62, Annex III, No. 27; no reference to an unlawfulness of the provi-sion of funds can also be found in the Proposal submitted by the United Kingdom of Great Britain and Northern Ireland concerning articles 1 and 2, Doc. A/AC.252/1999/WP.20 and Rev.1, reprinted in: Report of the Ad Hoc Committee, see note 62, Annex III, Nos. 20, 21; see generally Report of the Ad Hoc Committee, see note 62, Annex IV, paras 17 (first reading)


is not surprising then that the term “unlawfully” was not contained in article 2 (1) of the original draft Convention proposed by France,103 and that it was initially placed in square brackets indicating persisting need for consultations in a subsequent revised draft prepared on the basis of the ensuing negotiations.104

As has repeatedly been observed in doctrine, a similar structure was built into the International Convention for the Suppression of Terrorist Bombings.105 In this case, including “unlawfulness” as an element of the offence has been said to be warranted as, in particular albeit exceptional circumstances, certain persons or authorities may justifiably have to cause an explosion.106 Similar considerations may, however, be in place as regards the provision of funds to terrorists or pirates, notably against

and 88 (second reading); Report of the Working Group, see note 62, Annex III, para. 67; cf. also Aust, see note 60, 294; for Lavalle, a literal understand-ing of the term would even produce highly absurd results, see note 71, 500.

103 See Letter dated 3 November 1998 from the Permanent Representative of France to the United Nations addressed to the Secretary-General, see note 60, Annex I, article 2 (1): “Any person commits an offence within the meaning of this Convention if that person intentionally organizes or pro-ceeds with the financing of a person who, to his or her knowledge: [com-mits, or proposes to commit, acts listed in article 2(1)(a) and (b)].”

104 See Proposal submitted by France: Revised texts of articles 2, 5, 8, and 12 and additional provisions, Doc. A/AC.252/1999/WP.45, reprinted in: Re-port of the Ad Hoc Committee, see note 62, Annex III, No. 46, article 2 (1): “Any person commits an offence within the meaning of this Convention if that person [unlawfully and intentionally] provides financing with the knowledge or intent that such financing will be used, in full or in part, to commit [or prepare the commission of]: [...]”; still after the criterion of “unlawfulness” had become a set element of article 2 in the Working paper prepared by France on articles 1 and 2 following the two readings and in-formal consultations by the Ad Hoc Committee, see Report of the Ad Hoc Committee, ibid., Annex I.B., discussions continued in the Working Group of the Sixth Committee, see Report of the Working Group, see note 62, An-nex III, para. 67.

105 International Convention for the Suppression of Terrorist Bombings, see note 58, article 2: “Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device [...]”.

106 Aust mentions the possibility that, in exceptional situations, law enforce-ment authorities may have to detonate explosives in a public place, see note 60, 294; Lavalle points to the use of explosives, for instance, in civil engi-neering work, see note 71, 500.


the backdrop of situations of kidnapping and extortion as discussed in the present article.

Indeed the purpose of the International Convention for the Sup-pression of the Financing of Terrorism, as revealed by the preparatory works, can be delineated more finely than has been done so far.107 Rather than sweepingly aiming at the prevention of terrorism by crimi-nalizing, preventing and prosecuting its financing, the drafters were aware of and concerned with the distinction between legitimate and il-legitimate forms of conduct that may ultimately facilitate terrorist acts, and targeted only the latter. A clear distinction was thus drawn, for in-stance, between the “criminal acts” of the sponsors of terrorism and “the legitimate activities of humanitarian organizations.”108 In light of this more precisely defined purpose of the Convention, the term “unlawfully” in article 2 (1) obtains meaning as a gateway opening ave-nues for exceptions to the criminalization in principle of terrorist fi-nancing.109 Further evidence for this construction can be found in the subsequent conduct by state parties to the Convention, which is to be taken into account pursuant to article 31 (3) VCLT. Thus, for instance, the Swiss legislator relied on the term “unlawfully” to find, in adapting the relevant federal laws to the requirements of the Convention, that humanitarian activities as well as the payment of ransoms can be justi-fied even if they contribute to the funding of terrorism.110 Moreover, and particularly worthy of note, the Assembly of the African Union requested the UN General Assembly in its “Decision to combat the

107 See above, text accompanying note 87. 108 See Report of the Working Group, see note 62, Annex III, para. 9: “It was

also noted that the purpose of the draft convention was to target the spon-sors of terrorism in order to deter as well as to prosecute and punish their criminal acts without penalizing the legitimate activities of humanitarian organizations or those who contribute funds in good faith.”

109 Pieth, see note 73, 1080; see also in the travaux préparatoires Report of the Working Group, see note 62, Annex III, para. 67: “[...] the view was also expressed that it would be useful to retain the reference to ‘unlawful’, since it added an element of flexibility by, for example, excluding from the ambit of application of the draft convention legitimate activities, such as those of humanitarian organizations and ransom payments.”

110 Swiss Federal Council, Botschaft betreffend die Internationalen Überein-kommen zur Bekämpfung der Finanzierung des Terrorismus und zur Be-kämpfung terroristischer Bombenanschläge sowie die Änderung des Strafge-setzbuches und die Anpassung weiterer Bundesgesetze, 26 June 2002, BBl. 2002, 5390 et seq. (5404-5405); see also Pieth, see note 73, 1080, fn. 33.


payment of ransom to terrorist groups” of 3 July 2009 “to initiate nego-tiations with a view to elaborating a supplementary protocol to the In-ternational Convention for the Suppression of the Financing of Terror-ism or to the International Convention against the Taking of Hostages which prohibits the payment of ransom to terrorist groups.”111 This Decision most clearly illustrates that for the African Union’s members, most of whom are parties to the International Convention for the Sup-pression of the Financing of Terrorism, no such prohibition of ransom payments was imposed by the said Convention.

Finally, the travaux préparatoires to the Convention equally confirm that the opening of avenues to exempt certain forms of terrorist funding was precisely the reason for which the “unlawfulness” element was re-tained despite criticism by some delegations. A pivotal concern was that, by broadly criminalizing the provision of assets that would, at least in part, benefit terrorists, the work of humanitarian agencies would be hindered, namely under conditions where entire populations are in dire need of assistance and terrorists hide amongst them and may thus equally obtain supplies. Knowledge of unavoidable abuse should, however, not prevent the continued delivery of humanitarian aid.112 While the payment of ransoms is a case apart from the aforementioned, concern for the life and bodily integrity of the hostages may justify similar considerations. Accordingly, ransoms were named during the elaboration of the Convention as another form of funding that could be exempted from the scope of the offence of financing terrorism.113 In conclusion, an interpretation in light of the purpose and with regard to the preparatory works of the treaty clearly results in the finding that no

111 African Union, Assembly of the Union, Decision to Combat the Payment

of Ransom to Terrorist Groups, AU Doc. Assembly/AU/Dec. 256(XIII) of 3 July 2009, para. 10.

112 Statement made on 19 March 1999 by the Observer for the International Committee of the Red Cross, Doc. A/AC.252/1999/INF./2, Annex; Com-ments by the United Nations High Commissioner for Refugees on the Draft International Convention for the Suppression of the Financing of Terrorism, Doc. A/C.6/54/WG.1/INF./1 (calling upon the delegations to use the term “unlawfully” so as “to ensure that the humanitarian community is not un-duly penalized”, para. 7); see also Report of the Working Group, see note 62, Annex III, para. 67.

113 Report of the Working Group, see note 62, Annex III, para. 67; see also Pieth, see note 73, 1080; Aust, see note 60, 294; Lavalle, see note 71, 501, fn. 31.


offence under article 2 (1) of the Convention is committed by persons compelled to pay ransoms for the release of hostages.

c. Conclusion on the Lawfulness of Ransom Payments to Pirates under the International Convention for the Suppression of the Financing of Terrorism

To sum up, the International Convention for the Suppression of the Fi-nancing of Terrorism contains no obligation for state parties to crimi-nalize the payment of ransoms. Generally, the definition of the offence in article 2 (1) justifies the application of the Convention regardless of whether the acts for which the funds are to be used qualify as terrorist or piratical, as long as they fall at least within the ambit of the offences defined in the treaties in the Annex to the Convention. At the same time, however, the payment of ransoms is not an unlawful provision of funds which state parties would be obligated to criminalize and sup-press. In the event that a protocol to the Convention such as called for by the African Union Assembly was adopted, however, and in the ab-sence of any provision to the contrary, the scope of the offence of ter-rorism financing would be extended also to ransoms paid to pirates.

2. Conformity of Ransom Payments with Security Council Resolutions

Having established the inapplicability of the International Convention for the Suppression of the Financing of Terrorism, the illegality of ran-som payments to pirates on the international level could only result from Security Council resolutions. This section will evaluate Security Council Resolution 1373,114 which broadly addresses the issue of ter-rorist financing, and the sanctions regime originating from Resolution 1267,115 which specifically targets al-Qaida and the Taliban. In addi-tion, to complement the legal assessment of ransoms paid to Somali pi- 114 S/RES/1373 (2001) of 28 September 2001. 115 S/RES/1267 (1999) of 15 October 1999. On the competence of the Security

Council to establish targeted sanctions regimes under Chapter VII of the UN Charter, cf. e.g. S. Majlessi, “The Use of Economic Sanctions under In-ternational Law: A Contemporary Assessment”, CYIL 39 (2001), 253 et seq. (283-330); E. López-Jacoiste, “The UN Collective Security System and its Relationship with Economic Sanctions and Human Rights”, Max Planck UNYB 14 (2010), 273 et seq. (279-297).


rates, the targeted sanctions regime under Resolution 1844,116 adopted in the context of the continuing civil war in the country, will be ad-dressed.

a. Conformity of Ransom Payments with Security Council Resolution 1373

Pirate activities could fall within the scope of Security Council Resolu-tion 1373, which was adopted shortly after the terrorist attacks of 11 September 2001 in the United States.117 The resolution’s primary focus was to prevent future acts of terrorism by suppressing their financing. In order to ensure that financing of terrorism was outlawed interna-tionally irrespective of the International Convention for the Suppres-sion of the Financing of Terrorism, which was not yet in force in 2001,118 the Security Council adopted operative paragraphs in Resolu-tion 1373 bearing similarity to the core provisions of the aforemen-tioned Convention.119 As operative paragraph 1 spells out, after a gen-eral call to “[p]revent and suppress financing of terrorist acts” (sub-paragraph (a)), the states are requested to criminalize the financing of terrorist acts (subparagraph (b)) and to freeze any funds of persons sus-pected to participate in terrorist acts (subparagraph (c)) as well as to generally prohibit the financing of terrorist acts (subparagraph (d)).120

All states are called upon to implement these imperatives in their domestic laws.121 The provisions have remained basically unaltered by

116 S/RES/1844 (2008) of 20 November 2008. 117 S/RES/1373, see note 114; see also Geiß/ Petrig, see note 72, 13. 118 See note 63 and accompanying text. 119 Therefore, the Security Council has been termed a “world legislator”

namely by S. Talmon, “The Security Council as World Legislature”, AJIL 99 (2005), 175 et seq. (175). For a general discussion of the Security Coun-cil’s practice of prescribing treaty provisions via resolution, see S. Talmon, “Security Council Treaty Action”, Revue Hellénique de Droit Interna-tional 62 (2009), 65 et seq. (96 et seq.).

120 S/RES/1373 (2001), see note 114, op. para. 1; quoted in full text below. 121 The implementation is monitored by the Counter-Terrorism Committee,

which has been established by para. 6 of Resolution 1373; moreover, this paragraph obliges all states to report on the implementation of Resolution 1373. Nanda emphasizes that 100 states reported their progress within 90 days, V. Nanda, “The Role of International Law in Combating Terrorism”, Michigan State University Detroit College of Law Journal of International Law 10 (2001), 603 et seq. (605). The committee adopted guidelines for the


further Security Council resolutions, in contrast to the comparable UN-administered system to freeze funds of individuals established by Resolution 1267, which has been subject to changes.122 The only ex-plicit amendment to the obligations under Resolution 1373 was intro-duced by Resolution 1452,123 which urged all states to consider the ex-ceptions to the freezing of funds under Resolution 1267124 – for exam-ple to exempt ordinary living expenses, legal fees and costs for admini-stration of funds125 – when implementing Resolution 1373 in domestic legislation.126 Otherwise, the resolution has remained unchanged and in effect.

Since, at first glance, the wording of the relevant prohibitions seems to be inclusive, and taking into consideration recent collaboration of pi-rates in Somalia with al-Shabaab,127 a case could be made that Resolu-tion 1373 covers ransom payments to pirates. Therefore, it should be determined whether pirate activities are terrorist acts within the mean-ing of Resolution 1373 and whether the payment of ransom for hi-

implementation of Resolution 1373 without explicitly mentioning ransom payments, see Counter-Terrorism Committee, Technical Guide to the Im-plementation of Security Council Resolution 1373 (2001), 2009, available at <www.un.org/en/sc/ctc>. The latest report on the progress made according to the reports by states was published by the Committee in 2009, see Counter-Terrorism Committee, Survey on the Implementation of Security Council Resolution 1373 (2001) by Member States, Doc. S/2009/620 of 3 December 2009, available at <www.un.org/en/sc/ctc>. Cf. generally on the committee’s work E. Rosand, “Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight against Terrorism”, AJIL 97 (2003), 333 et seq.

122 For a detailed description of the sanctions regime introduced by Resolution 1267, see below under III. 2. b.

123 S/RES/1452 (2002) of 20 December 2002. 124 S/RES/1267 (1999) of 15 October 1999. 125 S/RES/1452 (2002), see note 123, op. para. 1 (a) reads: “necessary for basic

expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges, or exclusively for payment of reasonable professional fees and re-imbursement of incurred expenses associated with the provision of legal services, or fees or service charges for routine holding or maintenance of frozen funds or other financial assets or economic resources”.

126 S/RES/1452 (2002), see note 123, op. para. 5: “Urges Member States to take full account of the considerations set out above in their implementation of resolution 1373 (2001).”

127 Cf. above under II.


jacked ships and crews falls within the scope of this instrument. In the first operative paragraph, the Security Council

“[d]ecides that all States shall: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the wilful provision or collection, by any means, di-rectly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowl-edge that they are to be used, in order to carry out terrorist acts; (c) Freeze without delay funds and other financial assets or eco-nomic resources of persons who commit, or attempt to commit, ter-rorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the di-rection of such persons and entities, including funds derived or gen-erated from property owned or controlled directly or indirectly by such persons and associated persons and entities; (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic re-sources or financial or other related services available, directly or in-directly, for the benefit of persons who commit or attempt to com-mit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons.”128 Comparing the structure of all four subparagraphs, every provision

can be found to contain two elements. All clauses prohibit or criminal-ize an action, which is described e.g. as “financing” (subparagraph (a)) or “wilful provision […] of funds” (subparagraph (b)). All those activi-ties may be summarized as different methods of financing. Further-more, the financing is qualified by a connection to “terrorist acts”. Therefore, to regard piratical activities as sanctioned under the resolu-tion, two conditions need to be fulfilled: the pirates receiving ransom have to commit “terrorist acts” and payment of ransom has to be fi-nancing pursuant to subparagraphs (a) – (d).

128 S/RES/1373 (2001), see note 114, op. para. 1.


aa. Piracy as “Terrorist Act” within the Meaning of Resolution 1373

As such, the legality of paying ransom to pirates in order to free ships and crew depends on whether Resolution 1373 was intended to cover piratical activities as “terrorist acts”. In order to construe Resolution 1373, the applicable rules for interpretation of Security Council resolu-tions have to be identified. Articles 31-33 VCLT, which concern only the interpretation of treaties, are not directly applicable. Still, the basic means of interpretation which the VCLT provides may be applied by analogy.129 Yet when interpreting Security Council resolutions, the spe-cial conditions in which these are drafted and adopted have to be taken into account.130 In particular, the mainly political nature of all Security Council decisions must be considered.131

The wording and context seem inconclusive as to the scope of the term “terrorist acts”. Neither does Resolution 1373 contain a definition, nor does it limit the term to attacks like those of 9/11.132 Rather, the preambular para. 3 generally states that “any act of international terror-ism [constitutes] a threat to international peace and security.”133

By analogy to article 31 (3) VCLT, other sources of law may influ-ence the interpretation of the term “terrorist act” with regard to pirate activities in this case.134 Since the resolution was intended to put into force the core provisions of the International Convention for the Sup-pression of the Financing of Terrorism, the definition of terrorism in ar-

129 M. Wood, “The Interpretation of Security Council Resolutions”, Max

Planck UNYB 2 (1998), 73 et seq. (85 et seq.); M. Herdegen, “Interpreta-tion in International Law”, Max Planck Encyclopedia of Public Interna-tional Law, 2010, online edition, paras 50-51. This may be confirmed by Talmon, see note 119, 179, calling resolutions “secondary treaty (or Char-ter) law”; however, as a matter of interpretation, Wood, recalls the political nature of resolutions to distinguish them from the UN Charter as a treaty, ibid., 79.

130 Wood, see note 129, 85 et seq. 131 Cf. ibid., 78. 132 Cf. Sorel, see note 96, 369 et seq., who holds that the Security Council ac-

tually discussed the necessity of including a definition at all, while high-lighting the detriments.

133 Cf. S/RES/1373 (2001), see note 114. The African Union subscribes to this proposition in Decision 256 of 2009, see note 111.

134 Wood further elaborates on respective adjustments of article 31 (3) VCLT with regard to Security Council resolutions, see note 129, 91-94; see also Herdegen, see note 129, paras 50-51.


ticle 2 (1)(b) provides a starting point for the interpretation.135 As stated above, this norm requires a special mens rea element, which presup-poses that “the purpose of such act, by its nature or context, is to in-timidate a population or to compel a government […] to do or abstain from doing any act.” Moreover, even though no universally accepted definition of terrorism exists, several definitions share this require-ment.136 Against this backdrop, for Resolution 1373 to be applicable, piracy would need to come within this definition. The term piracy is defined in article 101 UNCLOS, codifying customary international law.137 As analysed above, only acts undertaken for private ends may

135 Cf. Talmon, see note 119, 177. Moreover, he indicates that the lack of a

definition of a terrorist act in the resolution “allows each member state to define terrorist acts under its domestic legislation”, ibid., 189. Yet, in con-cluding that some states purportedly had enacted laws to fulfil their obliga-tions under Resolution 1373 without actually succeeding (ibid., 190), he acknowledges that a certain prevailing definition of the term “terrorist act” underlies the resolution. Mention should further be made of the approach by Lavalle, who discusses yet finally rejects the idea of resorting to the ter-rorism definition in op. para. 3 of Security Council Resolution 1566 of 8 October 2004, R. Lavalle, “A Politicized and Poorly Conceived Notion Crying Out for Clarification: The Alleged Need for a Universally Agreed Definition of Terrorism”, ZaöRV/ HJIL 67 (2007), 89 et seq. (103).

136 Cf. the Council of Europe Convention on the Prevention of Terrorism, Council of Europe Treaty Series (CETS) No. 196, concluded in Warsaw on 16 May 2005 and entered into force 1 June 2007, whose article 1 (1) inter alia incorporates the definition from the International Convention for the Suppression of the Financing of Terrorism; the same would be true for the European Convention on the Suppression of Terrorism, CETS No. 090, concluded on 27 January 1977 as amended by the Protocol amending the European Convention for the Suppression of Terrorism, CETS No. 190 concluded in Strasbourg on 15 May 2003, which never entered into force, but was replaced by the aforementioned convention. Furthermore, Subedi elaborates on the drafting process of the comprehensive Convention of In-ternational Terrorism, which, however, was not adopted eventually, S. Subedi, “The UN Response to International Terrorism in the Aftermath of the Terrorist Attacks in America and the Problem of the Definition of Ter-rorism in International Law”, International Law FORUM du Droit Inter-national 4 (2002), 159 et seq. (162).

137 Cf. T. Treves, “Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia”, EJIL 20 (2009), 399 et seq. (401); for further refer-ences see König, see note 45, 224; Ö. Direk/ M. Hamilton/ K. Openshaw/ P. Terry, “Somalia and the Problem of Piracy in International Law”,


constitute piracy.138 Such activities, if aimed solely at extorting ransom payments, do not satisfy the mini-definition of terrorism included in ar-ticle 2 (1)(b) International Convention for the Suppression of the Fi-nancing of Terrorism.139 This suggests that “terrorist acts” in Resolu-tion 1373 would equally exclude piratical activities.

This analysis, even though informed by the desire to align the inter-pretation of Resolution 1373 with that of the Convention, would, how-ever, result in asserting a different scope for each of these instru-ments.140 One might therefore consider incorporating the idea of article 2 (1)(a) International Convention for the Suppression of the Financing of Terrorism with its reference to offences specified under the treaties listed in the Annex. Yet by employing the means of cross-referencing other conventions, the International Convention for the Suppression of the Financing of Terrorism specifically sought to work around the legal minefield of universally defining terrorism.141 As such, it is doubtful whether the Security Council intended to adopt this unique two-pronged approach as a whole. Rather, since the resolution was drafted in the immediate aftermath of the clearest possible example of interna-tional terrorism, the attacks of 9/11, it is well perceivable that no atten-tion was paid to the exact circumscription of “terrorism” and its demar-cation with regard to other crimes. As a consequence, when dealing with phenomena lying at the periphery of terrorism properly, the appli-cability of the regime established under Resolution 1373 cannot cur-rently be ascertained – the legal situation remains uncertain.

bb. Ransom Payments as Financing under Resolution 1373

Whether the modalities of financing in operative paragraph (1) cover the payment of ransoms is doubtful. The International Convention for

Uluslararası Stratejik Araútırmalar Kurumu (USAK) Yearbook of Interna-tional Politics and Law 4 (2011), 223 et seq. (238).

138 Cf. above under II. 2. for a discussion of possible interpretations, see also von Arnauld, see note 45, 462 et seq.; L. Azubuike, “International Law Re-gime Against Piracy”, Annual Survey of International & Comparative Law (2009), 43 et seq. (52-53); Rutkowski/ Paulsen/ Stoian, see note 100, 1431; Direk et al., see note 137, 231 et seq.

139 Cf. above under III. 1. b. 140 Cf. under III. 1. a. 141 Cf. above under III. 1. a. with regard to the definition of terrorism under

the International Convention for the Suppression of the Financing of Ter-rorism.


the Suppression of the Financing of Terrorism, which is considered the model for Resolution 1373, excludes ransoms from its scope of applica-tion.142

The general provision in operative paragraph (1)(a) requests all states to “prevent and suppress the financing of terrorist acts.” The original meaning of financing is support with financial means.143 Hence, where monies obtained as ransoms serve terrorist agendas, the applica-tion of paragraph (1)(a) is triggered, without a specific element of mens rea being required.

Subparagraph (b) obligates states to criminalize the “wilful provi-sion […] of funds”, provided that they are transferred “with the inten-tion that [they] should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts.”144 As the actus reus is broadly phrased to encompass any provision of funds, the conduct to be penal-ized by states includes payment of ransoms. The actual challenge will be to prove the required subjective elements in a given case.145

As regards subparagraph (c) concerning the freezing of funds, by contrast, it is already doubtful whether shipowners paying ransom for the release of their ship, cargo or crew fulfil the actus reus requirement. Potentially, they could be taken to act “at the direction” of persons committing or attempting to commit terrorist acts, when complying with ransom demands. However, a contextual construction taking into account the other modalities of subparagraph (c) points to a narrow reading of this term: both the entities whose funds are to be frozen and the property from which benefits are generated have to be “owned and controlled” either directly or indirectly by terrorists or associated per-sons. This indicates the requirement of a close and somewhat institu-tionalized connection between the terrorists and the sources from which the funds are generated. While “acting […] at the direction” does not require an organizational structure amounting to that of a corpora-tion, a comparison with the standard of ownership and control suggests that for the freezing of funds the resolution presupposes a connection

142 Cf. above the conclusion under III. 1. c. 143 Cf. B.A. Garner (ed.), Black’s Law Dictionary, 9th edition, 2009: “financ-

ing”: “[t]he act or process of raising or providing funds” or “[f]unds that are raised or provided”.

144 S/RES/1373 (2001), see note 114, op. para. 1 (b). 145 Cf. for the analysis of the mens rea element under the International Con-

vention for the Suppression of the Financing of Terrorism, see note 77 and accompanying text.


going beyond a singular and random encounter such as that between the hijacker and the owner of the hijacked ship. Prior to payment of the ransom, the latter does not act at the direction of the hijacker, and the non-recurring payment of ransom does not imply that his remaining as-sets will also be provided to terrorist networks. Consequently, subpara-graph (c) will regularly not apply to the payment of ransom.

Subparagraph (d), which requests the prohibition, though not neces-sarily by laws imposing penal sanctions, of “making any funds, finan-cial assets or economic resources or financial or other related services available” for the benefit of terrorists and specified associated persons or entities, is again phrased widely enough to cover any incidents of ransom payments. Since no additional requirement is set out, a textual interpretation would suggest that ransoms are included in the scope of subparagraph (d).

In conclusion, the wording of subparagraphs (a), (b) and (d) seems to indicate that states would be required to prohibit and criminalize the payment of ransom to terrorists and possibly to pirates, at least when these further terrorist acts by supplying funds.

Notwithstanding these considerations, the political context in which Resolution 1373 was adopted may call for a different understanding. In contrast to the interpretation of the International Convention for the Suppression of the Financing of Terrorism advocated above, the resolu-tion would go significantly further and require states to prohibit ran-som payments, even though it was intended to incorporate the core as-pects of that convention.146 Thus, it may be warranted to interpret the resolution in accordance with the Convention. This could be achieved by a construction in light of the object and purpose of the resolution or by implication. The drafting process of a Security Council resolution could make it necessary to imply certain terms complementing the ac-tual wording.147 The International Convention for the Suppression of

146 Talmon, see note 119, 102, emphasizes this action as an example where the

Security Council “prescribe[s] the provisions of an existing multilateral treaty not just for one particular State, but for all” and therefore considers Resolution 1373 “a treaty-promoting instrument.”

147 Wood states that Security Council resolutions “tend not to be particularly detailed, and it may be necessary to imply certain terms”, see note 129, 89 (with an extensive description of the drafting process of a resolution, ibid., 80-82), and that “[if] it appears that the Council was intending to base itself on existing legal rules or an existing legal situation, then its decisions ought certainly to be interpreted taking those rules into account”, ibid., 92. How-


the Financing of Terrorism differentiates between lawful and unlawful ends,148 making it conceivable that the additional requirement of unlaw-fulness is to be implied also in Resolution 1373, thereby excluding ran-som as a form of financing that can be acquiesced in, namely for hu-manitarian considerations.

To identify the purpose of a legal instrument, resort may again be had to the different tools of interpretation mentioned in articles 31 and 32 VCLT.149 Classic sources for this determination are especially the preamble and the historical background of the document.150 The con-text in which Resolution 1373 was adopted may support a restrictive in-terpretation: the resolution is dated 28 September 2001 and was drafted still under the impression of the 9/11 attacks on the United States. The first two phrases of the preamble reaffirm S/RES/1368 (2001) of 12 Sep-tember 2001 and express the “unequivocal condemnation of the terror-ist attacks which took place in New York.”151 Given this context, it ap-pears unlikely that payment of ransom would have been contemplated during the drafting process.152 Moreover, though not yet in force at the time, the International Convention for the Suppression of the Financ-ing of Terrorism, which excludes the payment of ransoms from its scope, served as an orientation in drafting the paragraphs on the sup-

ever, in this case, the International Convention for the Suppression of the Financing of Terrorism only entered into force on 10 April 2002, the “thir-tieth day following the date of the deposit of the twenty-second instrument of ratification”, cf. article 26 of the Convention. Therefore, it is unable to qualify as “relevant rule of international law” in the sense of article 31 (3)(c) VCLT. Nevertheless, the interpretation of Resolution 1373 in light of its historical context allows for this reference, given the model character of the International Convention for the Suppression of the Financing of Ter-rorism, see Talmon, see note 119, 177.

148 Cf. above for a detailed discussion of the consequences under III. 1. b. 149 Cf. Villiger, see note 69, article 31, para. 13. 150 Cf. J. Klabbers, “Some Problems Regarding the Object and Purpose of

Treaties”, Finnish Yearbook of International Law 8 (1997), 138 et seq. (156), pointing to the ICJ’s use of preambular provisions and preceding discussions in the General Assembly in the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide case.

151 S/RES/1373 (2001), see note 114, preamble, paras 1-2. 152 Cf. Talmon, see note 119, 187, commenting on the short time in which

Resolution 1373 was adopted. For a general overview on the drafting of Se-curity Council resolutions, cf. Wood, note 129, 80-82 (explaining the proc-ess of unofficial drafting, and emphasizing the diplomatic, not always legal reasons for amending a draft resolution).


pression of terrorist financing. Therefore, the historical background may be taken to support a narrow understanding, excluding ransom payments.

Yet the preamble could be taken to support a wide understanding of terrorist financing.153 In the third preambular paragraph, it is stated that “such acts, like any acts of international terrorism, constitute a threat to international peace and security”, whereas the fifth clause continues with “reaffirming the need to combat by all means […] threats to inter-national peace and security.”154 Furthermore, the resolution reaffirms Resolution 1269, which “[u]nequivocally condemns all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations.”155 The wide wording of those preambular paragraphs might indicate a purpose de-manding that terrorist financing be combated as effectively as possi-ble.156 In that case, any exception to the operative paragraphs would re-

153 Wood, see note 129, 89; see generally on article 31 (1) VCLT Villiger, see

note 69, article 31, para. 10 for the inclusion of the preamble as relevant context.

154 S/RES/1373 (2001), see note 114, preamble, paras 3 and 5. Emphasis added by the authors.

155 S/RES/1269 (1999) of 19 October 1999, op. para. 1. 156 As a general rule of treaty construction, Herdegen highlights that an inter-

pretation “is generally inspired by the purpose of the agreement and its ef-fective implementation”, see note 129, paras 30-31. Subedi emphasizes the broad scope of Resolution 1373, cf. Subedi, see note 136, 160. Equally, Talmon refers to the “general and abstract character of the obligation”, see note 119, 176 [emphasis in the original]. Bantekas suggests that the United States, as sponsor of Resolution 1373, might have taken the opportunity to adopt a resolution that otherwise would have found no majority in the Se-curity Council, see note 58, 326. Laborde and DeFeo state that “[t]he criminal law obligations imposed by Resolution 1373 and successor Reso-lutions are not limited to offences in the anti-terrorism conventions and protocols”, J.P. Laborde/ M. DeFeo, “Problems and Prospects of Imple-menting UN Action against Terrorism”, Journal of International Criminal Justice 4 (2006), 1087 et seq. (1092). In the same vein, Szasz appears to sug-gest that the purpose of Resolution 1373 cannot be reduced to the mere and simple implementation of the Convention, observing firstly that Resolu-tion 1373 “lacks any explicit or implicit time limitation, [and thus] a signifi-cant portion of the resolution can be said to establish new binding rules of international law”, P. Szasz, “The Security Council Starts Legislating”, AJIL 96 (2002), 901 et seq. (902), and secondly draws a clear line between the resolution and the International Convention for the Suppression of the


quire justification, as it may jeopardize the effectiveness of measures against the financing of terrorism.

Since different interpretations of the resolution’s purpose are con-ceivable, subsequent action concerning the resolution might provide further guidance. In analogy with article 31 (3)(a) and (b) VCLT, any “subsequent agreement […] regarding the application” and the “subse-quent practice in the application” are suitable means of interpretation. As stated above, Resolution 1373 underwent only one explicit amend-ment, by operative paragraph 5 of Resolution 1452, which urges states to make exemptions from the freezing of funds identical to those envis-aged for the UN-administered system of sanctions.157 Unfortunately, no unequivocal message can be derived from this provision: the Secu-rity Council either intended to make a single correction to an otherwise strict regime of Resolution 1373 and thereby clarified that no other ex-ceptions should apply, or emphasized in a purely declaratory fashion that implicit exceptions may exist. Consequently, the subsequent prac-tice of the Security Council appears ambiguous regarding the inclusion

Financing of Terrorism when he finds that the Security Council con-sciously incorporated only certain provisions of the Convention even though “it could have done so [adopt the whole Convention], either by making participation in the convention obligatory rather than optional, or by providing that all the provisions of the Convention […] are binding on all states”, ibid., 903. A similar stance was later taken by the African Union in Decision 256 of 2009, declaring its commitment “to strive to curb all sources of financing this phenomenon [terrorism]”, see note 111, para. 5, whereas it recognizes “that the payment of ransom constitutes one of the main methods of financing international terrorism”, see note 111, para. 2. Furthermore, the African Union drafted a “Model Law on the Prevention and Combating of Terrorism” that ought to prohibit the payment of ran-som, cf. African Union, Assembly of the Union, Decision on the Report of the Peace and Security Council on Its Activities and the State of Peace and Security in Africa, AU Doc. Assembly/AU/Dec.338 (XVI) of 31 January 2011.

157 Resolution 1452 establishes exemptions, e.g. in op. para. 1 (a) for funds “necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges, or exclusively for payment of reasonable profes-sional fees and reimbursement of incurred expenses associated with the provision of legal services, or fees or service charges for routine holding or maintenance of frozen funds or other financial assets or economic re-sources.” For a brief outline of the UN administered regime under Resolu-tion 1267 cf. below under III. 2. b.


of ransom in the scope of financing in operative paragraph 1 of Resolu-tion 1373.

Further evidence supporting this finding can be adduced from a statement of the African Union in Decision 256 of 3 July 2009.158 As stated above, this Decision calls upon the Security Council to “adopt a restrictive resolution against the payment of ransom in order to con-solidate legal provisions put in place, particularly by Resolutions 1373 and 1267.”159 Whether or not such a consolidation of legal provisions in place would ultimately imply a mere declaratory compilation160 or a re-vision and partial supplementation161 of existing rules, the request made by the African Union Assembly demonstrates the perceived need to clarify the lex lata under said Security Council resolutions. Following up on this initiative, the African Union prepared a model law that aims at prohibiting payments of ransom.162

In conclusion, Resolution 1373 remains ambiguous as to whether it includes the payment of ransom in its ambit. Assuming an affirmative answer to this issue, the payment of ransom in cases of piracy could be prohibited by Resolution 1373, depending on the interpretation to be given to “terrorist act” in operative paragraph 1. Moreover, Resolution 1373 could then apply at least where parts of the ransoms paid to So-mali pirates are passed on to terrorist organizations such as al-Shabaab. Since paragraphs 1 (b) and (d) explicitly include the provision of funds “directly or indirectly”, links of this kind, if proven and accompanied by any necessary element of mens rea in a given case, may be taken to suffice. Under these conditions, Resolution 1373 may be applicable to the payment of ransom to pirates.

158 African Union, Assembly of the Union, Decision 256 (XIII), see note 111. 159 Ibid., para. 9. 160 Indicated by the ordinary meaning of “consolidate”, cf. in: J.A. Murray et

al. (eds), The Oxford English Dictionary, 2nd edition, 1989, “consolidate”. 161 Cf. Garner, see note 143, “code”, emphasizing that a consolidation may in-

clude the revision of law. 162 Cf. African Union Decision 338, see note 156. D. Akande/ T. Maluwa,

“African Union Consultancy on the Elaboration of an African Compre-hensive Anti-Terrorism Model Law: Explanatory Guide to Provisions of the Model Law”, 2011, available at <www.icpat.org>.


cc. Conclusion on the Applicability of Resolution 1373 to Ransom Payments to Pirates

Regarding the legality of ransom payments for the release of pirate-held ships and crews, the result of the interpretation is inconclusive. It re-mains uncertain whether piratical acts qualify as “terrorist acts” under Resolution 1373. Moreover, different readings can be sustained as to whether ransom payments are to be included in the resolution’s scope. Hence the assessment of the resolution currently allows for no definite conclusions on the matter.

b. Suppression of Ransom Payments under the UN Sanctions Regime Targeting al-Qaida and the Taliban

Aside from the general regime concerning the suppression of terrorist financing established on the basis of Resolution 1373, the Security Council had targeted certain individuals and entities with specific sanc-tions, including the freezing of funds, since 1999. Pursuant to Resolu-tions 1267 (1999), 1333 (2000)163 and 1390 (2002),164 a list was estab-lished identifying the persons to be subjected to the sanctions, namely “Usama bin Laden, members of the Al-Qaida organization and the Taliban and other individuals, groups, undertakings and entities associ-ated with them.”165 This system subsequently underwent alterations in an effort to ensure adherence to basic human rights, a concern the prevalence of which was specifically emphasized by the judgment of the European Court of Justice (ECJ) in Kadi and Yusuf.166 Thereafter,

163 S/RES/1333 (2000) of 19 December 2000. 164 S/RES/1390 (2002) of 28 January 2002. 165 S/RES/1390 (2002), ibid., op. para. 2. 166 Cf. ECJ, Joined Cases C-402/05 P and C-415/05 P– Yassin Abdullah Kadi

and Al Barakaat International Foundation v. Council of the European Un-ion and Commission of the European Communities, Judgment of 3 Septem-ber 2008, ECR 2008, I-6351, which overruled the judgments of the Court of First Instance of 21 September 2005 in Case T-315/01 Kadi v. Council of the European Union and Commission of the European Communities (2005) ECR II-3649 (“Kadi”) and Case T-306/01 Yusuf and Al Barakaat Interna-tional Foundation v. Council of the European Union and Commission of the European Communities (2005) ECR II-3533 (“Yusuf and Al Bara-kaat”). For a general overview of these judgments and their legal conse-quences within the European Union, cf. recently T. Tridimas, “Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Develop-


standing was granted to individuals in a de-listing procedure,167 which was later replaced by an individual complaints procedure before an ombudsman.168 Even earlier, several exceptions to the freezing of funds belonging to listed individuals had been introduced.169 The regime was consolidated in Resolution 1904170 and has recently been reformed after the death of Usama bin Laden171 and in light of the political constella-tion in Afghanistan. Henceforth, two separate lists will be administered: whereas Resolution 1988 (2011) covers “Taliban, and other individuals, groups, undertakings and entities associated with them,”172 Resolution 1989 (2011) targets “Al-Qaida and other individuals, groups, undertak-ings and entities associated with them.”173 This measure was taken in order to allow for differentiated treatment, and aimed at facilitating reconciliation efforts with the Taliban in Afghanistan.174 Both resolu-

ments”, Cambridge Yearbook of European Legal Studies 12 (2009-2010), 455 et seq. For a detailed analysis of their impact on European Law cf. E. López-Jacoiste, see note 115, 310 et seq., with specific focus on the human rights conformity of various targeted sanctions regimes, and Laborde/ De-Feo, see note 156, addressing various aspects of obligations to criminalize certain acts, mainly concerning Resolution 1373 and the International Convention for the Suppression of the Financing of Terrorism. The ECJ’s approach is further analysed by S. Neudorfer, “Antiterrormaßnahmen der Vereinten Nationen und Grundrechtsschutz in der Union”, ZaöRV/ HJIL 69 (2009), 976 et seq., whereas G. Thallinger, “Sense and Sensibility of the Human Rights Obligations of the United Nations Security Council”, ZaöRV/ HJIL 67 (2007), 1015 et seq. discusses the responsibility of the Se-curity Council to respect human rights.

167 S/RES/1730 (2006) of 19 December 2006, op. para. 1 and Annex. 168 S/RES/1904 (2009) of 17 December 2009, op. paras 20-27. 169 S/RES/1452 (2002), see note 123, op. paras 1-2. 170 S/RES/1904 (2009), see note 168. For a general overview of the develop-

ment of the regime up to this resolution, cf. e.g. A.J. Kirschner, “Security Council Resolution 1904 (2009): A Significant Step in the Evolution of the Al-Qaida and Taliban Sanctions Regime?”, ZaöRV/ HJIL 70 (2010), 585 et seq. Furthermore cf. M. Kanetake, “Enhancing Community Accountability of the Security Council through Pluralistic Structure: The Case of the 1267 Committee”, Max Planck UNYB 12 (2008), 113 et seq.

171 S/RES/1989 (2011) of 17 June 2011, preamble, para. 4: “[r]ecalling [...] that Usama bin Laden will no longer be able to perpetrate acts of terrorism.”

172 S/RES/1988 (2011) of 17 June 2011, op. para. 1. 173 S/RES/1989 (2011), see note 171, op. para. 1. 174 S/RES/1988 (2011), see note 172, preamble, paras 6-9. Furthermore, the

resolution concerning the Taliban allows for participation of the Afghan


tions uphold the provisions of earlier resolutions deciding that states shall

“[f]reeze without delay the funds and other financial assets or eco-nomic resources of these individuals, groups, undertakings and enti-ties, including funds derived from property owned or controlled di-rectly or indirectly, by them or by persons acting on their behalf or at their direction, and ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly for such persons’ benefit, by their nationals or by persons within their territory.”175 Operative paragraph 1 (a) thus contains an obligation of the states,

firstly, to freeze funds of listed persons and their associates and, sec-ondly, to ensure that economic means are not made available to them. As regards the freezing of assets, reference can be made to the consid-erations addressed in the context of operative paragraph 1 (c) of Resolu-tion 1373.176 Hence, a ransom payment regularly fails to establish a suf-ficiently close connection between a listed person and a shipowner that would extend the freezing obligation to the assets of the latter. The sec-ond part of operative paragraph 1 (a) bears similarity to operative para-graph 1 (d) of Resolution 1373 in that it broadly addresses the making available of funds. However, whereas the regime of Resolution 1373 is inconclusive as to the inclusion of ransom payments, operative para-graph 5 of Resolution 1904 “[c]onfirms that the requirements in para-graph 1(a) above shall also apply to the payment of ransoms to indi-viduals, groups, undertakings or entities on the Consolidated List.”177

government in the de-listing process, cf. S/RES/1988 (2011), op. paras 18 et seq. Within a month of its adoption, 15 Taliban-associated persons were delisted pursuant to the new procedure, see Security Council Press Re-leases SC/10306 of 30 June 2011 and SC/10328 of 18 July 2011. The al-Qaida resolution inter alia significantly strengthens the position of the Ombudsman, who is now empowered to make recommendations for de-listing which can only be overruled by consensus, S/RES/1989 (2011), see note 171, op. paras 21 et seq.

175 S/RES/1989 (2011), see note 171, op. para. 1 (a); S/RES/1988 (2011), see note 172, op. para. 1 (a).

176 Cf. above under III. 2. a. bb. 177 S/RES/1904 (2009), see note 168 (emphasis in the original). Under the old

regime the “Consolidated List” consisted of “Al-Qaida, Usama bin Laden and the Taliban, and other individuals, groups, undertakings and entities as-sociated with them, as referred to in the list created pursuant to resolutions 1267 (1999) and 1333 (2000)”, ibid., op. para. 1.


The Resolutions 1988 and 1989 transposed this declaration verbatim to the new lists.178

Read in this light, the obligation of states to ensure that no funds are made available would also extend to inhibiting transactions aimed at the release of hostages. Yet the application of Resolutions 1988 and 1989 requires that a person demanding ransom is identified on the respective lists. Despite its ties to al-Qaida, the al-Shabaab itself had not been listed before the reform of the sanctions regime179 and as of July 2011 does not appear on the al-Qaida list under Resolution 1989. As yet, the impact of measures under the 1988/1989 regime seems therefore limited with regard to Somali pirates.

c. Suppression of Ransom Payments under the UN Sanctions Regime Regarding Somalia

In the particular context of Somali piracy, it is, lastly, appropriate to broaden the focus of the analysis beyond the confines of regimes that have been developed as part of the response to the phenomenon of in-ternational terrorism. Due to the civil war that has torn the country apart since the late 1980s, Somalia attracted the attention of the interna-tional community long before the recent re-emergence of piracy. With a view to halting the descent of the Somali state into anarchy, the Security Council imposed a general arms embargo with Resolution 733 (1992),180 which remains in place to the present day. Seeing that the em-bargo was violated on a constant basis,181 the Security Council adopted Resolution 1844 to give teeth to the regime.182 Under this resolution, a committee is to designate individuals and entities to be subjected to sev-eral forms of targeted sanctions.183 Similar to the regime originating from Resolution 1267, Resolution 1844 demands, inter alia, the freezing

178 S/RES/1989 (2011), see note 171, op. para. 8; S/RES/1988 (2011), see note

172, op. para. 7. 179 Committee 1267, The Consolidated List established and maintained by the

1267 Committee with Respect to Al-Qaida, Usama bin Laden, the Taliban and other individuals, groups, undertakings and entities associated with them, updated 4 May 2011, available at <www.un.org>.

180 S/RES/733 (1992) of 26 August 1992. 181 Report of the Panel of Experts on Somalia pursuant to Security Council

resolution 1474 (2003), Doc. S/2003/1035, paras 69-140. 182 S/RES/1844, see note 116, preamble, para. 8. 183 S/RES/1844, ibid., paras 8, 12-17.


of funds as well as action to “ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any individuals or entities within their territories, to or for the benefit of [the listed] individuals or entities.”184 Unlike in the al-Qaida and Taliban regime, al-Shabaab figures amongst the listed per-sons.185

On its face, the provision concerning the making available of funds raises the same issue that has already been addressed in detail in the context of Resolution 1373, i.e. whether the payment of ransoms should be exempted from its ambit. Yet Resolution 1844 explicitly addresses the phenomenon of piracy in preambular paragraph 5, “[e]xpressing […] grave concern over the recent increase in acts of piracy and armed robbery at sea against vessels off the coast of Somalia, and noting the role piracy may play in financing embargo violations by armed groups […]”. While unlike in Resolutions 1988 and 1989 no explicit reference is made to ransoms, the Security Council was evidently aware of and specifically tackled the phenomenon of piracy off the Somali coast, which regularly involves the hijacking of vessels for ransom. This strongly suggests that Resolution 1844, interpreted in light of the origi-nal intent of the Security Council members, was meant to also inhibit ransom payments.186

Assuming that ransom payments qualify as funding prohibited by Resolution 1844, the second obstacle is again establishing the required link between the money paid and the persons listed according to the resolution. As has been suggested before, the evidence so far is insuffi-cient to demonstrate that piratical activities off the Somali coast gener-ally lead to the provision of funds to the al-Shabaab.187 Yet a distinc-tion may need to be made between different coastal regions from which attacks originate. In geographical areas in which the al-Shabaab im- 184 S/RES/1844, ibid., op. para. 3. 185 Security Council Committee pursuant to resolutions 751 (1992) and 1907

(2009) concerning Somalia and Eritrea, List of individuals and entities sub-ject to the measures imposed by paragraphs 1, 3 and 7 of Security Council Resolution 1844 (2008), 24 September 2010, No. 1.

186 This conclusion is in line with the view expressed by John Steed, Principal Military Adviser to the UN Special Envoy to Somalia, according to whom “[t]he payment of ransoms just like any other funding activity, illegal or otherwise, is technically in breach of the Somalia sanctions regime if it makes the security situation in Somalia worse”, quoted in: “Piracy ransom cash ends up with Somali militants”, see note 32.

187 Cf. above under II. 1.


poses taxes on ransom payments, these may have to be treated as bene-fiting listed persons.

Based on the text and historical context of Resolution 1844, it could hence be concluded that UN Member States are obligated to prevent the payment of ransoms at least to those pirate groups operating from al-Shabaab strongholds. Doubts about this conclusion must arise, how-ever, due to the virtually complete absence of efforts by states to pre-vent such payments, which will be discussed in more detail below.188 Public authorities appear not only to have acquiesced in this practice, but reportedly even took an active part in ransom negotiations in some instances. For example, the German Federal Criminal Police Office (Bundeskriminalamt) and Federal Foreign Office (Auswärtiges Amt) have been known to guide shipowners through this process and even advised the payment of ransoms in specific cases.189 There is no evi-dence that such modi operandi have been understood as involving a breach of international law by the relevant actors. Overall, this subse-quent practice militates against a construction of Security Council Resolution 1844 as imposing an obligation on states to prevent ransom payments to Somali pirates.

In conclusion, although al-Shabaab is listed for sanctions according to Resolution 1844 and despite the facts that the generation of revenues from piratical activities is mentioned as a grave concern in the resolu-tion itself and that the situation in Somalia allows for the establishment of links between pirate attacks and al-Shabaab at least in certain parts of the country, international state practice calls into question the under-standing that Resolution 1844 imposes an obligation to prevent the payment of ransoms to such Somali pirate groups. As such, ambiguities persist concerning the reach of the 1844 regime.

3. Conclusion on the Legal Framework on the Payment of Ransom

As far as the instruments dealing with terrorist financing are concerned, the preceding analysis has been marked by the fact that neither the phe-nomenon of piracy nor the process of ransom payments were focal points of concern during their drafting and initial application. The 188 Cf. below under IV. 189 A. Ulrich, “Terror und Angst”, Der Spiegel of 6 July 2009, 34 et seq. (35 et

seq.).


question to what extent they are nonetheless governed by these regimes has been answered differently for the International Convention for the Suppression of the Financing of Terrorism and the relevant Security Council resolutions, due to slight but significant differences in the wording, structure and historical context of the relevant paragraphs.

As for the increasingly difficult distinction between piracy and ter-rorism, the two-pronged approach of article 2 (1) International Con-vention for the Suppression of the Financing of Terrorism with its ref-erence to the listed treaties in subparagraph (a) allows for the conclu-sion that piratical activities as such may be a relevant end of financing as contemplated and outlawed by the Convention. The absence of this second limb of the definition of the offence in Security Council Resolu-tion 1373, despite its inner connection with the Convention, leaves am-biguous the treatment of piracy under said resolution. The historical context of its adoption, two and a half weeks after 9/11, suggests that this issue was simply not a matter of consideration at the time. Resolu-tion 1373 may, however, at least be called into effect in the face of hy-brid forms of the two phenomena, i.e. once a sufficiently close connec-tion between pirates and terrorists may be established to evidence a link in a given case between piratical activities and the funding of terrorist acts. The application of the UN-administered sanctions system, finally, depends on the identity of the persons and entities specifically targeted. It may thus come to encompass the provision of funds to pirates once these or the al-Shabaab are added to the list.

Despite the broad scope of the International Convention for the Suppression of the Financing of Terrorism including piratical activities, its wording, purpose and drafting history as well as the parties’ subse-quent understandings evidence that the payment of ransoms was not originally, and is not to date, intended to be prohibited. Recent initia-tives for a protocol to the Convention may change this situation for those parties ratifying it. In that case, unless the protocol clearly ex-cludes from its scope the financing of piracy, the above conclusions on the Convention’s scope would make it applicable also to ransoms paid to pirates, irrespective of the existence or absence of any link to terror-ist acts. As for the resolutions adopted by the Security Council, the 1988/1989 regime is applicable in theory, notwithstanding constraints on its effectiveness in practice, while the significance of Resolution 1373 as regards the payment of ransoms remains, again, obscure.

As far as the Somali arms embargo regime is concerned, the text and historical context of Resolution 1844 would suggest the illegality of ransom payments at least to those pirate groups operating from al-


Shabaab controlled territory. Taking into account, however, the lack of impact that it has had on national policies regarding ransoms paid to pi-rates, it appears again questionable whether such a prohibitory effect can be derived from the resolution.

IV. National Solutions to Legality of Ransom Payments

The uncertain legal implications of ransom payments within the realm of international law are in part mirrored by national laws. Although the specific norms concerning ransom payments may differ between states, the gist seems to be of similar nature. While at the beginning of the re-emergence of piracy, payment of ransom did not seem to be at the cen-tre of interest of states, the awareness of this aspect of the fight against piracy is rising. In 2009, the US Ambassador Rosemary A. DiCarlo mentioned at a Security Council debate on piracy and Somalia that the United States are “concerned that ransom payments have contributed to the recent increases in piracy and encourage all states to adopt a firm ‘no concessions policy’ when dealing with hostage-takers, including pi-rates.”190 In 2010, US President Obama issued an Executive Order, which among other measures on its face outlaws all payments - even ransom - to specific individuals and entities with connections to terror-ist organizations, but also to some known Somali pirates and the al-Shabaab.191 Indeed concerns that ransom payments have been fuelling piracy off the shores of Somalia were well founded then, as ransom payments contributed to the means pirates had available to commit their criminal acts, and contribute to further destabilize the situation in Somalia. Those concerns may, however, prove to be even better founded today, when pirates, however unwillingly, finance terrorist en-deavours.

A final and clear legislative answer to the issue of ransom is not to be seen so far, indeed the national legal framework to address payments 190 Remarks by Ambassador Rosemary A. DiCarlo, Alternate U.S. Represen-

tative for Special Political Affairs, at a Security Council Debate on Piracy and Somalia, in the Security Council Chamber, 18 November 2009, United States Mission to the United Nations, available at <http://usun.state.gov>.

191 Executive Order 13536, Blocking Property of Certain Persons Contributing to the Conflict in Somalia, 12 April 2010, Federal Register, Vol. 75, No. 72 (15 April 2010), Presidential Documents, 19869 et seq., section 1 (a)(ii)(D). Commentators have frequently suggested that the clause would also cover ransom payments, Rutkowski/ Paulsen/ Stoian, see note 100, 1436 et seq.


to pirates and/or terrorists seems to be paved with even more uncer-tainties than the international framework. To briefly glance at British legislation, ransom payments were allowed until the Ransom Act192 of 1782 made it “unlawful for a British subject to enter into a ransom con-tract.”193 This act was later repealed by the Naval Prize Acts Repeal 1864, whereafter it was legal to pay ransom to pirates.194 In the recent days, this position has been reinforced by Admiralty Judge David Steel in Masefield v. Amlin, who took the view that, inter alia because such payments are recoverable as sue and labour expenses,195 they are not against public policy.196 Indeed, the possibility to recover ransom pay-ments, and as such the legal recognition of ransom payments, goes back to Roman Civil Law.197 While it hence remains legal to pay ransom to pirates, financing pirates that in turn fund terrorism may be assessed differently. The Terrorism Act 2000198 mainly concerns the financing of terrorism, but it may also cover ransom payments to pirates, which in-directly fund terrorist acts. Section 15 (3) of the act provides,

192 Full title: An Act to prohibit the ransoming of Ships or Vessels captured

from his Majesty’s Subjects, and of the Merchandize or Goods on Board such Ships or Vessels (Act 22 Geo III c. 25).

193 Chuah, see note 7, 46. 194 Ibid. 195 Royal Boskalsis Westminster NV v. Mountain [1999] QB 674. 196 Masefield AG v. Amlin Corporate Member Ltd [2010] EWHC 280

(Comm). 197 “Si navis a pirates redempta sit, Servius, Ofilius, Labeo, omnes conferre de-

bere aiunt. Quod vero praedones abstulerint, eum perdere cujus fuerint, nec conferendum ei qui suas merces redemerit.”, Ex Digestis, ex. lib. XIV, tit. II, De lege rhodia de jactu, Fr. 2. Paulus lib. XXXIV ad Edictum, re-printed in: J.M. Pardessus, Collection de Lois Maritimes Antérieures au XVIIIe Siècle, 1828, 106. Translation: “If a ship has been ransomed from pi-rates, Servius, Ofilius, Labeo, all agree that there should be a contribution. But what the robbers have taken away, he must lose whose property it was; nor shall there be a contribution for him who has ransomed goods of his own”, cited in: G. Gauci, “Piracy and its Legal Problems: With Specific Reference to the English Law of Marine Insurance”, Journal of Maritime Law and Commerce 41 (2010), 541 et seq. (556).

198 2000 Chapter 11, Full Title: An Act to make provision about terrorism; and to make temporary provision for Northern Ireland about the prosecution and punishment of certain offences, the preservation of peace and the main-tenance of order, 20 July 2000.


“a person commits an offence if he (a) provides money or other property, and (b) knows or has reasonable cause to suspect that it will or may be used for purposes of terrorism.”

Terrorism is defined in section 1 of the act as the “use or threat of action where (b) the use or threat of action [that e.g. involves serious violence against a person or serious damage to property, see s. 1(2) of the act] is designed to influence the govern-ment or an international governmental organization or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideologi-cal cause.” Payment of ransom to terrorists seems to fit section 15 (3), although

it remains uncertain whether a ransom payment would really be con-sidered “fund-raising”, which is the title of section 15 of the Terrorism Act. This legal uncertainty may prove to be dangerous for shipowners, considering that a violation of section 15 may result in imprisonment of up to 14 years. A further aspect fueling the ambiguity of the legal situa-tion is to be seen in the fact that so far no enforcement action has been initiated against ransom paying companies under section 15 of the Ter-rorism Act, although there have been ransom payments by UK ship-owners.199

In Germany, the situation seems similar. Paying ransom to pirates may be viewed as a violation of § 129 Criminal Code (StGB) – Forming Criminal Organizations – although to the authors’ knowledge, again no charge has ever been brought on the basis of a ransom payment to pi-rates. Paying ransom to pirates, which in turn may fund terrorism may, in addition, qualify as a breach of § 129a (5) StGB – Forming Terrorist

199 BBC, “Somali pirates free UK-flagged tanker after ransom paid”, of 14

May 2010. The lack of such enforcement action can be attributed to the fact that the competent law enforcement agencies so far do not consider the linkage between pirates and terrorists sufficient to initiate prosecution pro-ceedings. In the event of a change of circumstances concerning this aspect, the importance of exceptions laid down in section 21 of the Terrorism Act 2000 has been stressed by the European Union Committee of the UK Par-liament, rendering a payment legal as long as e.g. a “Suspicious Activity Report” was filed beforehand, see European Union Committee, Money laundering and the financing of terrorism, Minutes of Evidence of 11 March 2009, Supplementary memorandum (3) by HM Treasury and the Home Office, Annex A, available at <http://www.publications.parliament. uk>.


Organizations – and § 89a (2)(4) StGB – Preparation of a Serious Vio-lent Offence Endangering the State. However, an approach similar to that taken in Masefield v. Amlin may be warranted, because the costs for ransom payments are – in part – recoverable according to § 706 (6) of the German Commercial Code under the General Average rules. This norm accords some degree of legal recognition to payments effec-tuated for the release of crew, cargo and ship. Regardless of such a re-ductive interpretation of the elements of crimes previously mentioned, in the end, those payments will regularly be justified by § 34 StGB, which provides for a justification of acts by necessity, if someone,

“faced with an imminent danger to life, limb, freedom, honor, prop-erty or another legal interest which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particu-lar the affected legal interests and the degree of danger threatening them, the protected interest substantially outweighs the one inter-fered with.”200 Thus, when the lives of hostages are on the line, § 34 StGB will most

certainly justify ransom payments. Conversely, these may not be seen as a proportionate means to avert the danger when paid to free a vessel only, since the financing of criminal groups is itself a weighty concern within the weighing process of § 34 StGB.

In the United States, the payment of ransom monies has been held to be a “necessary means of deliverance from a peril insured against, and acting directly upon the property.”201 However, the terrorism legis-lation seems to turn away from this statement. In the aforementioned Executive Order of 12 April 2010, US President Obama allowed for measures against ransom paying companies. He also authorized the Secretary of the Treasury, in consultation with the Secretary of State, to designate for blocking any person determined to have “materially as-sisted, sponsored, or provided financial, material, logistical, or technical support […] for any person whose property and interests in property are blocked pursuant to this order.”202 As such, the United States seems to be the only state that indeed prohibits ransom payments to certain Somali pirates to such an extent that tangible sanctions – the freezing of 200 Translation by M. Bohlander, available at <http://www.gesetze-im-

internet.de>. 201 United States Supreme Court, Peters v. The Warren Insurance Company,

US 39 (1840), 99 et seq. (110). 202 Executive Order 13536, see note 191, section 1.


the payer’s funds – loom. However, Adam Szubin of the US Treasury Department, which plays a significant role in the execution of the order, stated shortly after its declaration that only “individuals and entities that freely choose to support acts of piracy or armed robbery at sea off the coast of Somalia” are meant to be targeted, indicating that persons merely trying to free hostages by ransom payments do not fall within the scope of enforcement measures under the Executive Order, despite its inclusive phrasing and its intent to counter the “deterioration of the security situation and the persistence of violence in Somalia”203.204 Alongside the legal regime of the Executive Order, the financing of ter-rorism itself is prohibited under the extensive national legal regime against international terrorism in the United States.205

V. Conclusion

It has been shown that the payment of ransom to pirates, although fre-quently resorted to, may entail numerous practical and legal conse-quences when the current practice of cooperation between pirates and terrorists solidifies. In this regard, it is desirable to explain or clarify the existing legislation on the international and the national plane. It hardly seems a tolerable situation that shipowners are confronted with an un-certain set of legal norms, most of which are associated with severe punishment, and cannot assess beyond any doubt whether they are act-ing in a manner consistent with the law or not. As such, clear state-ments by states and the United Nations as to the applicability of norms to ransom payments to pirates are needed.

As a matter of policy, states should be encouraged to tread different paths. The payment of ransom is the most promising and least risk-laden way to free hostages and as such, if legally allowed, the only way to act in case of a successful piratical attack for a sensible shipowner. 203 Executive Order 13536, see note 191, preamble. 204 The statement of the Treasury Department is printed in J. Straziuso, “Are

pirate ransoms legal? Confusion over US order”, The Associated Press of 20 April 2010.

205 For an analysis of the different federal law norms refer to Rutkowski/ Paulsen/ Stoian, see note 100, 1438 et seq. It appears, however, that these do not sanction ransom payments to pirates generally. Rather the US Treas-ury’s Office of Foreign Assets Control (OFAC) conducts reviews of po-tential payments before they are carried out to determine their legality, see “Piracy ransom cash ends up with Somali militants”, see note 32.


However, it has often been regarded as the most comfortable solution to piracy, and it has been forgotten or deliberately ignored that it is in-deed no solution at all. It has long been known that ransom payments are an easy way to deal with outward threats. European countries were a great agent for this policy during the times of the Barbary States. Yet Rudyard Kipling’s words prove to be true with regard to the Barbary corsairs as well as regarding Somali piracy,

“It is always a temptation for a rich and lazy nation, To puff and look important and to say: – ‘Though we know we should defeat you, we have not the time to meet you. We will therefore pay you cash to go away.’ And that is called paying the Dane-geld; But we’ve proved it again and again, That if once you have paid him the Dane-geld You never get rid of the Dane.”206 Besides the obvious observation that ransom payments are no solu-

tion, it has to be underlined that the benefits of paying ransom to pi-rates have diminished recently. The average duration of ransom negotia-tions has more than doubled in the last year, due to escalating ransom demands.207

Thus, ransom payment is no longer a way to quickly liberate hos-tages. While it is true that paying ransoms is a comfortable solution for shipowners, who may recover the sums paid, it is equally true that the ransom payments have empowered and continue to empower criminal gangs to the detriment of the Somali government and its stability and there is a good chance that terrorist groups get a considerable share of the money. As such, while everyone seems to agree that a solution to pi-racy can only be found on the land, paying ransoms undermines such solutions, while empowering those forces in Somalia that guarantee a worsening of the situation and disadvantaging severely those forces that seek to enforce structures and stability in what seems to be a chaotic situation.208

206 R. Kipling, Rudyard Kipling’s Verse: Inclusive Edition 1885-1918, 1919,

747. 207 Bowden, see note 18, 9. 208 ECOSOC, see note 39, para. 10. The recent famine at the Horn of Africa

caused by the worst drought in 60 years has shown the cold-blooded role


In conclusion, the goal has to be to reduce successful pirate attacks on ships and as such decrease the ransom money that flows into the funding of criminal and, indeed, terrorist activities. This may be achieved when shipowners closely follow the Best Management Prac-tices209, while states continue to cooperate and find ways to follow the money trail to the backers of piracy and seek solutions to prosecute pi-rate suspects. The payment of ransom can only be a last resort and the institutionalization of this ultima ratio solution that has been witnessed regarding Somali piracy may very well render the search for a solution to piracy more difficult than it already is.

that the al-Shabaab plays and its gruesome influence on the region. With the number of starvations spiking in Somalia, the militia has insisted that there is no famine, while at the same time accusing the United Nations of simply seeking to spy on Somalia and upholding their ban on humanitarian agencies seeking to provide relief to the 11 million people in dire need of food, “Al-Shabaab: No famine in Somalia”, UPI of 23 July 2011; “Somalia MP - Al Shabaab Blocking Aid From Needy Starving People”, Africa News of 26 July 2011.

209 Reprinted in: IMO, Piracy and Armed Robbery Against Ships in Waters off the Coast of Somalia, IMO Doc. MSC.1/Circ.1337 of 4 August 2010, An-nex 2.

Impacts of International Law on the Restructuring of the Global Financial System

Cornelia Manger-Nestler*



I. Introduction 1. The Starting Point: A Crisis-influenced System 2. Methodology

II. Main Actors in the Global Financial System 1. Overview 2. Bretton Woods Institutions, in particular the International Monetary

Fund a. Origin and Development b. Structure of the IMF

aa. Legal Status bb. Organizational Structure cc. Governance Reforms

c. Tasks of the IMF aa. Mandate bb. Tasks and Instruments cc. Lending Function dd. Surveillance Function

3. Economic and Social Council of the United Nations 4. International Cooperation beyond the United Nations System

a. “Groups” b. Financial Stability Forum/Board c. Bank for International Settlements

aa. Development and Organizational Structure bb. The Basel Committee on Banking Supervision

III. Changes and Challenges after the Start of the Crisis 1. General Remarks

a. Global Financial Stability as the Objective b. Aspects of Governance, Legitimacy and Effectiveness c. Dichotomy between Hard and Soft Law Instruments

2. Role of Selected Global Financial Institutions after the Start of the Crisis a. International Monetary Fund b. Group of Twenty c. Financial Stability Board d. United Nations e. Bank for International Settlements f. Special Relationship between the European Union and Interna-

tional Financial Institutions IV. Summary

Manger-Nestler, Restructuring of the Global Financial System 167

I. Introduction

1. The Starting Point: A Crisis-influenced System

International financial and economic crises have, in general, taught us many lessons of which there are two main ones: the first queries the ca-pacity for global acting, revealed by severe weaknesses of public regula-tory and supervisory institutions and instabilities of various market seg-ments. The second indicates how crisis-laden economic processes al-lowed national and international policymakers the opportunity to mod-ify the traditional state vs. market relationship by restructuring the global financial architecture on the international, as well as on the su-pranational level.

Before concentrating on the challenges of restructuring the global financial system, a short historical survey is needed. The recent diagno-sis is very simple: it must be understood that the global financial system is liberalized, but it is still crisis-influenced and the impacts reach across all borders.

International financial markets became more integrated and under-went radical transformation, starting, in fact, with developed countries in the late 1970s and spreading to developing countries in the 1980s and 1990s. During the same period, international capital movements were seen to have accelerated, reaching high levels. This, in turn, led to finan-cial innovation and a heavy use of sophisticated instruments. This de-velopment was encouraged by the fact that, in particular, under the IMF Agreement the Member States were allowed to control capital transac-tions,1 and there are no relevant treaty rules under international law which impose, in general, a legal obligation on states guaranteeing a free movement of capital.2 Therefore, the liberalization of financial services

* The author is much obliged to Ludwig Gramlich for invaluable comments

and professional exchange. Moreover, I owe thanks to Mark Spaldin for helpful discussion and to Gregor Noack for research assistance.

1 Article VI Section 3 Articles of Agreement of the International Monetary Fund (IMF Agreement), UNTS Vol. 2 No. 20 (a).

2 R.M. Gadbaw, “Systemic Regulation of Global Trade and Finance: A Tale of Two Systems”, JIEL 13 (2010), 551 et seq. (558); C. Ohler, “Interna-tional Regulation and Supervision of Financial Markets after the Crisis”, Working Papers on Global Financial Markets, March 2009, 1 et seq. (9).


under the WTO/GATS Agreement3 is only mandatory for members of the WTO and within the Schedules of Specific Commitments of the GATS.4 The most outstanding multilateral approach of free movement of capital and financial services was set up by the European Union (EU) within the internal market for financial services.5 As a result of the European and international processes of liberalization and deregulation, the cross-border offering of financial services and transactions by finan-cial intermediaries dealing world-wide, e.g. banks, financial institutions, rating agencies and hedge funds, has assumed unexpected and alarming proportions.

This article is not the right place to emphasize the economic ration-ales6 of the crisis, but rather it will concentrate on the efforts, which have been made in international affairs and on the global “gubernative” stage to stabilize the global financial system.

The breakdown of the US investment firm, Lehman Brothers, on 15 September 2008 was one of the main focal points of the global financial crisis which has persisted to date. A further peak of the crisis occurred in spring 2010, when sovereign financial crisis and public debt problems commenced in several countries of the Eurozone.

Nevertheless, since 2008 several milestones have been reached; in particular the informal, but powerful Group of Twenty (G20) attempted to tackle the crisis by concerted and decisive initiatives with macro as well as micro prudential content and replaced the central position of the Financial Stability Board (FSB) as an international financial institution.7 The process of rethinking global structures also became apparent, when the Member States of the IMF carefully paved the way for a governance

3 General Agreement on Trade in Services (GATS), 15 April 1994, supple-

mented with regard to Financial Services by the Second Protocol to the GATS, 24 July 1995, and the Fifth Protocol to the GATS, 3 December 1997. See for the interplay of IMF and WTO as two global regulatory sys-tems, Gadbaw, see note 2.

4 Specific Commitments are set out in Schedules, integrated in the GATS (Article XX Section 3), and concern e.g. Market Access (Article XVI) and National Treatment (Article XVII).

5 Arts 63-66 Treaty on the Functioning of the European Union (TFEU), OJ, 9 May 2008, C 115, 47.

6 See for a detailed analysis R. Lastra/ G. Wood, “The Crisis of 2007-09: Na-ture, Causes and Reactions”, JIEL 13 (2010), 531 et seq.; Ohler, see note 2, 4.

7 See in Detail, II. 4.a.; III. 2.b. and c.


reform of the Fund in October 2010 by strengthening the position of the emerging Member States; somewhat later, aiming to represent some emerging countries more adequately in the IMF, the G20 decided upon the next modification of quota and shares. The changed position of the FSB as the “fourth pillar” of global economic, monetary and financial governance structures may also be mentioned as one of the important milestones. Nevertheless and from the perspective of the EU, the re-sponse to the financial crisis that has to be put on record was an institu-tional one: the European System of Financial Supervision (ESFS).

The full effects of the last crisis are still not foreseeable8 and have not been managed entirely. New threats, such as the European, as well as the US problems with public debt, are on the horizon. Therefore, it is necessary to stress that all challenges identified must be reconsidered in combination with institutional issues of global economic governance, as well as international financial and monetary structures. Considering the multiplicity of factual occurrences having appeared during the cri-sis, as well as the related legal efforts of the relevant actors, the follow-ing explanations do not intend to provide an in-depth analysis. How-ever, it is hoped that this article will give a structured overview of the main composition of the global financial system and will be a basis for some food for thought.

2. Methodology

This article sketches some conceptual aspects of the ongoing interna-tional debate on the restructuring of the global financial system. Its purpose is to analyze the impact of international law on the global fi-nancial system and its stability, as well as to query to what extent a stronger and more effective international cooperation in this area is needed in the future.

For this reason, the first step will be a short review of the develop-ment after the crisis of the last years, starting at the initial causal point for the current crisis-influenced system: the breakdown of the US in-vestment firm, Lehman Brothers, in September 2008. Based on this ini-tial situation, the collaboration of the relevant actors who have an im-pact on the global financial system, will be analyzed in more detail.

8 See for an “interim view” until March 2009, Ohler, see note 2, 1 et seq.


Because this study aims to spotlight global “rules” for financial mar-kets, the focus centers on global governmental structures, which have the rule-making power to set international standards and establish legal structures (see below, Part II.). In this context, the Bretton Woods Insti-tutions, in particular the IMF, are of particular importance due to their position as the nucleus of an international financial framework. Beyond that, various organizations and organs of the UN system, as well as in-formal forums of international cooperation beyond the United Nations, must be looked at, with regard to their impact on the global financial system. Finally, the special role of the Bank for International Settle-ments (BIS) as well as its “satellite”, the Basel Committee on Banking Supervision, as standard setters are highly important. After discussing the position of and interactions between the defined relevant actors, the article will turn to the question of the impact which international law currently has and, with regard to the future, the challenges which have to be met (see below, Part III.).

First of all, global financial stability will be dealt with as the out-standing objective of global acting and the main intention of a transna-tional macro prudential supervision. Then, the institutional aspects of the relevant actors and the standard-setting bodies will be considered insofar as they are suitable for restructuring the global financial “archi-tecture”. This leads to the question of the (legal) effectiveness of “rules”, in particular the dichotomy between hard and soft law, which should not be argued in a general way, but rather in the context of in-ternational financial markets. Hence, the protection of financial stability determines whether a hard or a soft binding effect is needed or ade-quate. The impact of legal provisions should be demonstrated in respect of selected issues, which are highly relevant for the management of the recent crisis, e.g. the much used term of “macro prudential” supervision of systemic risks or the issue of legitimacy of (governance) reforms of the institutional framework. Thereafter, the challenges should be trans-lated to those actors defined as being relevant on the international level, i.e. IMF, G20, FSB, United Nations and BIS.

Although the focus is more on the global, rather than on a specific European perspective, the exceptional role of the EU, in particular the European Central Bank (ECB) and the European System of Central Banks (ESCB), has to be examined with regard to its external relation-ship to international financial issues.9 The article will end by outlining

9 See under III. 2.f.


the main findings in a Summary and by drafting a short forecast of les-sons for the future (see below, Part IV.).

A (re)structuring of the global financial markets might also have many side-effects relating to the ecological and sustainable development of the world-wide economy or might imply constraints leading to a re-thinking of questions pertaining to social policy. These relationships would, however, justify a separate article, therefore they will not be part of the subsequent explanations.

II. Main Actors in the Global Financial System

1. Overview

Before dealing with the challenges of the financial crisis, the relevant ac-tors with any impact on the global financial system will be character-ized. At this point, the analysis focuses on the actors of the global fi-nancial “architecture”, as they stood on the eve of the (first) crisis in 2008. Such a general review seems necessary in order to realize that the global financial system has always been characterized by a plurality of subjects, a coexistence of actors and a variety of controlling instru-ments. The subsequently disputed cooperation of the actors has been pre-conditional for a deeper understanding of changes and modifica-tions in the international context since the crisis.

At the starting point, the analysis shows a very heterogeneous pic-ture with many actors on a global and intergovernmental, as well as on the regional level with connections and networks between the various levels and systems. Although a heterogeneous pluralism characterizes institutions, in particular in international law, it is inhomogeneous,10 and at times somewhat confusing, with regard to “competences” in the field of international financial institutions. Concurrently, the “institu-tional framework” is very fragmentary, and more labeled by a parallel coexistence than by effective cooperation of the actors.11 One incentive for reorganization should be a more effective coordination and coop-eration which in the past did not function resulting in troubles in the relationship network. 10 M. Ruffert/ C. Walter, Institutionalisiertes Völkerrecht, 2009, marginal

number 559. 11 Also mentioned by Ruffert/ Walter, see note 10, marginal numbers 210 et

seq.


The article returns to the subject of defining the actors and their relevance in a global financial system. The terminology of (legal) sub-jects or actors may be viewed from two perspectives: a private and a public one. Private actors, like financial enterprises, in particular banks, are relevant insofar as they take an economic advantage of their influen-tial market power, partly with systemic importance.12 This is due to the fact that private actors, in particular Multi National Corpora-tions/Enterprises (MNC/MNE), give distinction to global business ac-tivities.13 But these actors are only indirectly relevant, because of the economic consequences which are enormous and globally noticeable.

This article aims to spotlight global “rules” for financial markets. Therefore, its focus is less on pure subjects belonging to the private sec-tor, but more on global governmental structures, having the rule-making power to establish international legal structures which are effec-tive, and in the best case legally binding and applicable in cross-border relations. Above all, the relevant actors are from the state or govern-mental sector and/or “public donors” founding and financing institu-tional structures, partly as international governmental organizations; they should function as “stability anchors” for the global financial sys-tem in uncertain times. But the “classical pattern” of international gov-ernmental organizations will frequently be absent with regard to the entities acting as global financial institutions. One reason for this may be found in the limited leadership of the United Nations in this area. Although the IMF and the World Bank14 were established successfully after World War II, the “third” economic pillar in the shape of an In-ternational Trade Organization failed in the first instance.

12 See for the Systemically Important Financial Institutions (SIFIs) problem,

under III. 1.a. 13 See for the discussion of the international legal personality of Multi-

National Corporations, K. Nowrot, “Steuerungssubjekte und - mechanis-men im Internationalen Wirtschaftsrecht”, in: C. Tietje (ed.), Internatio-nales Wirtschaftsrecht, 2009, § 2 marginal numbers 26 et seq.; C.D. Wallace, The Multinational Enterprise and Legal Control, 2002, 101 et seq. and 1071 et seq.

14 The term World Bank generally refers to IBRD and IDA, whereas the term World Bank Group is used to refer to a family of five institutions encom-passing IBRD, IDA, International Finance Corporation (IFC), Multilateral Investment Guarantee Agency (MIGA) and International Center for the Settlement of Investment Disputes (ICSID).


In 1995, the GATT 194715 was replaced by the WTO.16 Regardless of all criticism about the governance structure, the IMF might nonethe-less be seen as the hub of an international financial framework.17 More-over, the role of various organizations and organs of the UN system, in particular ECOSOC, must be discussed in this context.18 Outside the UN system, there are several formations, working together within an informal cooperation, like the Group of Eight/Twenty (G8/20) and the FSB. The more formally structured institutions, like the BIS and the Basel Committee on Banking Supervision must be observed with regard to their impact on the global financial system.19 Although their com-mitments are not legally binding, they direct de facto, which means that they have a strong impact on the further development of transnational issues. This is due to their high-ranking “members” who are able to make preliminary decisions, which again give the direction for consecu-tive resolution of e.g. the IMF or the World Bank.

2. Bretton Woods Institutions, in particular the International Monetary Fund

a. Origin and Development

At the United Nations Monetary and Financial Conference, convened in July 1944 in Bretton Woods, 44 Member States met to negotiate the design of a global framework for cooperation in trade, monetary and financial affairs. By signing the multilateral treaties of Bretton Woods two new and permanent international institutions were founded: the International Bank for Reconstruction and Development (IBRD),20 later called the World Bank, and the International Monetary Fund (IMF). Although proposed at the Bretton Woods Conference, the In-ternational Trade Organization project failed because the Havana Char-

15 General Agreement on Tariffs and Trade 1947/1994. 16 Agreement Establishing the World Trade Organisation,

<http://www.wto.org/english/docs_e/legal_e/04-wto.pdf>. 17 See under II. 2.c.; III. 2.a. 18 See under II. 3. 19 See under II. 4.c.bb.; III. 2.e. 20 International Bank for Reconstruction and Development (IBRD), Articles

of Agreement, UNTS Vol. 2 No. 20 (b).


ter21 was not ratified by the US Senate. Due to the fact that the trade pillar flat lined, for a long time, IMF and World Bank have been the core of the international financial “architecture”, even though “there is no agreed definition of what it constitutes.”22

The discussions at the Conference were characterized by two rival plans and opposing political debates, dominated by Harry Dexter White, representing the United States, and his British counterpart, John Maynard Keynes.23 Although a compromise was reached on some points, the former, i.e. the US position became largely accepted.24 The main question of the Conference was the issue of exact macroeconomic adjustment with respect to the monetary institution that would emerge. Closely connected was the issue of whether the source for international liquidity should be structured similarly to a world central bank able to create new reserves at its will (lender of last resort).25 The founding members decided in favor of a high degree of voluntary coordination of economic policy, including capital controls.26 Because of the limited borrowing mechanism finally implemented, the IMF was deliberately restricted to its liquidity resources, given to it by the donor Member States. Another result of the Conference was the establishment of an in-ternational monetary system of fixed exchange rates, consisting of a fixed gold parity of the US$ and a dollar parity of the other currencies of the Member States and the establishment of special drawing rights (SDRs).27 As is well known, this system of fixed exchange rates ended on 15 August 1971, because of the United States’ disentanglement from

21 Final Act of the United Nations Conference on Trade and Employment:

Havana Charter for an International Trade Organisation, 24 March 1948. See for details Gadbaw, see note 2, 557 et seq.

22 “[I]t refers broadly to the framework and set of measures that can help pre-vent crises and manage them better in the more integrated international fi-nancial environment” <http://www.worldbank.org/ifa/ifa_more.html>.

23 See for details A.F. Lowenfeld, “The International Monetary System: A Look over Seven Decades”, JIEL 13 (2010), 575 et seq.; C. Tietje, “Ar-chitektur der Weltfinanzordnung”, Beiträge zum Transnationalen Wirtschaftsrecht 109 (2011), 1 et seq. (10).

24 Cf. J.M. Boughton, “Why White, not Keynes? Inventing the Post war In-ternational Monetary System”, IMF Working Paper, Doc. WP/02/52, March 2002 <http://www.imf.org>.

25 See for details Lowenfeld, see note 23, 579 et seq. 26 See for the “fight over capital controls”, Gadbaw, see note 2, 558 et seq. 27 Gadbaw, see note 2, 558; S. Schlemmer-Schulte, “Internationales Wäh-

rungs-und Finanzrecht”, in: Tietje, see note 13, § 9 marginal number 46.


the gold standard. Based on the Rambouillet Agreement of the G728 and later framed by the re-adjustment of the IMF Agreement in 1976,29 the currencies of the Member States have been free floating and converti-ble.30 Hence, the IMF was restricted to monitoring the national policies of exchange rates and insofar retained surveillance over economic poli-cies of its members. Although Keynes emphasized that a rule-based re-gime was very important to stabilize business expectations and predict-ability, originally, the IMF would not, in fact, possess any impact on structural macroeconomic issues to establish global and/or mandatory provisions.

b. Structure of the IMF

aa. Legal Status

As an international governmental organization, the IMF does possess “full juridical personality”.31 Currently, the Fund consists of 187 mem-bers32 which are all “countries”, i.e. states in the terms of international law – the only formal precondition of IMF membership.33 Therefore no other subject of international law shall be accepted for membership. All 27 Member States of the EU are members of the Fund, but, with regard to the rules of the IMF Agreement, neither the Union nor the ECB are members.34 The IMF and the World Bank are specialized agencies in the sense of Article 57 UN Charter.35 This means that the Fund and the World Bank are institutions within the UN system, whereas the WTO

28 G7 Declaration of Rambouillet, 17 November 1975, IMF Survey No. 4,

350 of 24 November 1975. See for details Lowenfeld, see note 23, 583. 29 2nd Amendment of the IMF Agreements. Modifications approved by the

Board of Governors in Resolution No. 31-4, adopted on 30 April 1976, and amended effective on 1 April 1978.

30 Cf. Lowenfeld, see note 23, 581 et seq. 31 Article IX Section 2 of the IMF Agreement. 32 IMF, “About the IMF” <http://www.imf.org>. 33 Article II Sections 1, 2 IMF Agreement. 34 Cf. D.E. Khan, “Article 219 TFEU”, in: R. Geiger/ D.E. Khan/ M. Kotzur

(eds), EUV/AEUV, Kommentar, 5th edition 2010, marginal number 12; U. Häde, “Article 219 TFEU”, in: C. Calliess/ M. Ruffert (eds), EUV/AEUV, Kommentar, 4th edition 2011, marginal number 20. See under III. 2.a. and f.

35 They are connected with the United Nations by way of an agreement based on Article 63 UN Charter.


is only a “related or associated” intergovernmental organization. But there does exist an agreement-based cooperation between IMF and WTO on relevant issues.36

bb. Organizational Structure

Regarding the internal organizational structure, the IMF consists of three main bodies:37 the Board of Governors, the Executive Board and the Managing Director.

The Board of Governors38 is the highest decision-making body at the top of the institutional structure of the Fund and the only general body representing all members, because the Member States did not in-stall a council at the ministerial level. Several powers are reserved for the Board only,39 like electing and appointing the Executive Directors or being the ultimate arbiter in the interpretation of the IMF’s Articles of Agreement; all powers not conferred directly to other institutions shall be vested in the Board.40 It consists of one Governor and one al-ternate for each Member State. The Governor is appointed by the re-spective Member State and is usually the minister of finance or the gov-ernor of the national central bank. The Board meets annually and is ad-vised by two ministerial committees,41 the International Monetary and Financial Committee (IMFC) and the Development Committee, a committee established jointly with the World Bank for dealing with de-velopment issues. The IMFC42 is responsible for discussing fundamen-tal issues of the international monetary policy and financial stability in-cluding global liquidity, in particular in acute crisis situations. It has 24 members, drawn from the pool of currently 187 Governors. Its struc-ture mirrors that of the Executive Board (see below). As such, the

36 See for the full text Decision No. 11381-(96/105), 25 November 1996, Se-

lected Decisions and Selected Documents, 35th issue. 37 Article XII Section 1 IMF Agreement. See for details L. Gramlich, “Eine

neue internationale ‘Finanzarchitektur’ oder: Der IMF in der Krise?”, AVR 38 (2000), 399 et seq. (411 et seq.).

38 Article XII Section 2 of the IMF Agreement. 39 E.g. the right to approve quota increases, special drawing right (SDR) allo-

cations, the admittance of new members, compulsory withdrawal of mem-bers, and amendments of the Articles of Agreement and By-Laws.

40 Article XII Section 2 (a) of the IMF Agreement. 41 Article XII Section 2 (j) of the IMF Agreement. 42 See under <http://www.imf.org/external/np/exr/facts/groups.htm#IC>.


IMFC represents all Member States of the Fund; at the IMFC no for-mal voting takes place, but it operates by consensus.43

In particular within the Board of Governors, but also in the Execu-tive Board, the “quota based” weighted voting is manifest. Each IMF Member State is assigned a specific quota44 of SDRs, their scope based broadly on macroeconomic data representing its relative position in the world economy. A Member State’s quota determines its maximum fi-nancial commitment to the IMF (quota share) as well as its voting power (voting share), and has also relevance in respect to its access to IMF financing. Unlike the United Nations and the WTO/GATT, which provided one vote for each Member State, the IMF uses a system of voting based on Member States’ quotas in the Fund.45

The Executive Board is the central administrative body of the Fund; because of this position most of the powers of the Board of Governors were delegated to it.46 It is composed of 24 (Executive) Directors, ap-pointed or elected by the Member States or by groups of states, and the Managing Director, who serves as its Chairman. The formation is also determined by respective member quotas47 and can be changed, as could be seen in the last reform in 2008,48 which entered into force in March 2011,49 when quota and voting shares were changed.

The third main position is held by the Managing Director, who is neither a Governor nor an Executive Director.50 The Managing Direc-tor is the chief of the operating staff and the chairman of the Executive Board, but he/she shall have no vote, except for a deciding vote in the event of a tie.

43 See for an explanation R. Wolfrum, “Consensus”, in: R. Wolfrum (ed.),

United Nations: Law, Policies and Practice, 1995, 350 et seq. 44 Article III of the IMF Agreement. 45 Lowenfeld, see note 23, 577. 46 Article XII Section 3 (a) of the IMF Agreement. 47 Article XII Section 3 (b), ibid. 48 “Directors Back Reforms to Overhaul IMF Quotas and Voice”, IMF Sur-

vey, 28 March 2008 <http://www.imf.org>. 49 “The IMF’s 2008 Quota and Voice Reforms Take Effect”, Press Release

No. 11/64, 3 March 2011 <http://www.imf.org>. 50 Article XII Section 4 of the IMF Agreement.


cc. Governance Reforms

Regarding governance reforms of the IMF’s internal structure, the sub-ject of legitimacy concentrates predominantly upon the question of how Member States are adequately represented in the decision-making bodies because of the decisive function of quotas and shares. Since the formation of the Fund, almost every reform of the founding documents of the Fund, except for the (second) amendment after the breakdown of the exchange rates system in 1976,51 was accompanied by controversial disputes about criteria of presumptive adequate representation of the Member States, with different results. The reform of 199752 took 11 years to come into force, leading to a small increase in the voting shares and quotas of the members; the minor or governance reform of 2008,53 was initiated long before the current crisis, involving an aggregate shift of 5.4 percentage points to under-represented countries. The article will come back to the post-crisis development at a later point.54

c. Tasks of the IMF

aa. Mandate

The mandate of the IMF, stated very generally in article I of the IMF Agreement, includes the following six main purposes:

“(i) To promote international monetary cooperation through a per-manent institution which provides the machinery for consultation and collaboration on international monetary problems. (ii) To facilitate the expansion and balanced growth of international trade, and to contribute thereby to the promotion and maintenance of high levels of employment and real income and to the develop-ment of the productive resources of all members as primary objec-tives of economic policy. (iii) To promote exchange stability, to maintain orderly exchange ar-rangements among members, and to avoid competitive exchange de-preciation.

51 See note 29. 52 Modifications approved by the Board of Governors in Resolution No. 52-

4, adopted on 23 September 1997 and amended effective on 10 July 2009. 53 Modifications approved by the Board of Governors in Resolution No. 63-

3, adopted on 5 May 2008, amended effective on 18 February 2011. 54 See under III. 2.a.


(iv) To assist in the establishment of a multilateral system of pay-ments in respect of current transactions between members and in the elimination of foreign exchange restrictions which hamper the growth of world trade. (v) To give confidence to members by making the general resources of the Fund temporarily available to them (...) . (vi) In accordance with the above, to shorten the duration and lessen the degree of disequilibrium in the international balances of pay-ments of members.”

bb. Tasks and Instruments

Based on these core purposes, four main tasks of the IMF can be de-duced: (1) the “supervision” of settlement and payment,55 (2) the func-tion of surveillance,56 (3) the granting of credits (lending),57 and (4) the information function, i.e. the Fund’s acting as a base of knowledge, in-formation and data.58 Due to the fact that the lending function and, in particular, the function of surveillance are of high importance for the matter at hand, they will be described in more detail.

With regard to precise instruments put at the disposition of the IMF, the Agreement refers only very vaguely to “policies” and “decisions”.59 The categories of “principles”, e.g. described as “specific principles for the guidance”60 of national policies of exchange rates or “other princi-ples”61 for operations and transactions in SDRs, as well as of “recom-mendations”62 occur. Although the Agreement itself remains silent as to the legal quality of the instruments mentioned, it can be noticed with regard to the legal diction that the binding effect is relatively weak, be-cause of the absence of effective sanctions, i.e. the instruments are hardly mandatory for the Member States. In most cases the Fund is lim-

55 Article VIII of the IMF Agreement. 56 Article IV, ibid. 57 Article V, ibid. 58 Article IV Section 3 lit. b.) sentence 4; article VIII Section 5; article XVI

Section 3, ibid. 59 Article I, last sentence, ibid. 60 Article IV Sections 1 and 3, ibid. 61 Article XIX Section 5 lit. a.), ibid. 62 Article VII Section 2, ibid.


ited to mere guidance,63 meaning that these “principles” do not contain any strict or close binding effect. The loan agreements are excepted in-sofar as they are given under special conditions (so called condition-ality), its increasing importance shall be discussed in detail later.64

cc. Lending Function

The financial assistance or lending function is designed to help coun-tries to relaunch growth and to restore macroeconomic stability by re-building their international reserves, stabilizing their currencies, and paying for imports.65 The IMF also provides concessional loans to low-income countries to help them develop their economies and reduce poverty. Especially when a Member State faces an exceptional situation that threatens its financial stability, the Fund can provide rapid response to contain the damage to the international monetary system. The pur-pose of the IMF’s lending has changed dramatically since its creation. Prior to the financial crisis the IMF had rather aged resulting in its de-clining importance, but there seems to have been a revival of its main tasks, caused by the assistance given by the Fund to financially suffer-ing countries.

The financial assistance has evolved from helping countries, which have to cope with short-term trade fluctuations, to a wide range of as-sistance activities that deal with problems originating from trade shocks, sovereign debt restructuring and currency crises. Since the 1990s there has been a revival of the lending function, in particular the Rapid IMF Lending in highly-developed countries. Examples can be found in the support given during the Asian crisis in 1997.66 In 2001 the Emergency Financing Mechanism was used for Turkey and again in 2008/2009 inter alia for Hungary, Iceland and Latvia, and – considering the public debt crisis in the Eurozone – in 2010 for Greece.67 The grant-ing of credits is implemented under several conditions, stated in a Letter of Intent as the result of negotiations between the grantor – the Fund –

63 Article IV Section 3 lit. b.), ibid. Cf. C. Schiller, “Improving Governance

and Fighting Corruption: An IMF Perspective” of 31 March 2000 <http://www.oas.org>.

64 See under III. 2.a. 65 See for details Gramlich, see note 37, 406 et seq. 66 Cf. Lowenfeld, see note 23, 589 et seq. 67 IMF Factsheet, “IMF Crisis Lending”, 29 March 2011.


and the borrower – the Member State in need.68 With the country ask-ing for help the Fund discusses the economic policies that may be ex-pected in order to address the problems most effectively, and both agree on a program of policies aimed at achieving specific, quantified goals in support of the overall objectives of the borrowing government’s eco-nomic program.

Although the idea of a condition-based lending is a positive one, the mode of conditionality has often been criticized because of its slightly intangible macroeconomic requirements, as well as the rather general and hardly binding surveillance of the economic and monetary policy of the borrower.69 Even before the recent crisis emerged, the IMF was in the process of reforming how it lends money to countries finding themselves in a cash crunch. Creating different kinds of loans for the very different needs of the Member States was the aim of the new Lend-ing Framework, installed in March 2009; the article will deal with this in detail at a later point.70

dd. Surveillance Function

The surveillance function, as it stands today, is the result of the (second) amendment of the IMF Agreement in 1976.71 After the gold standard broke down, the Member States revised the strict scope of the monetary and exchange rate matters and enlarged the Fund’s mandate by author-izing the institution to set up guidance in structural macroeconomic is-sues, which are relevant for the observation of the international mone-tary system.72 Therefore, the IMF “oversees” the international mone-tary system and monitors the financial and economic policies of its members.73 It keeps close track of economic developments on a re-gional, national and global basis. In detail, the Fund monitors and gives 68 Lowenfeld, see note 23, 580. 69 Gramlich, see note 37, 404 et seq. 70 See under III. 2.a. 71 G7 Declaration of Rambouillet, see note 28, and 2nd Amendment of the

IMF Agreement, see note 29. 72 See for a former version of article IV of the IMF Agreement S. Hagan, “Ar-

ticle IV of the Fund’s Articles of Agreement: An Overview of the Legal Frame-work”, 28 June 2006, 1 et seq. (18 et seq.) <http://www.imf.org>; Lowenfeld, see note 23, 584 et seq.

73 See for details D.W. Arner/ R.P. Buckley, “Redesigning the Architecture of the Global Financial System”, Melbourne Journal of International Law 11 (2010), 1 et seq. (10 et seq.); Gramlich, see note 37, 404 et seq.


advice on exchange rates, monetary and fiscal policies, as well as on spe-cific financial sector issues. Those institutional and structural issues have an increasing impact upon the financial crisis and in the context of some countries’ transition from planned to market economies.

This leads to the central role of the IMF (and the World Bank) in developing, implementing and assessing internationally recognized standards and codes. As a result of the IMF’s access to information and data of high quality and quantity, the surveillance function74 has a strong tie to the role of the Fund as a standard setter. Although a legal source or an explicit statutory basis for standard-setting can hardly be found in the Fund’s Agreement, this task has become more and more important concerning establishing an international financial architec-ture.

For a long time and last reviewed in 2005,75 the IMF has attempted imposing pressure on the economic governance in its Member States by developing internationally recognized standards and codes in 12 areas identified by the Fund as being crucial to the efficient functioning of a modern economy, and developed in cooperation with other standard-setting bodies like the World Bank,76 the Basel Committee and the OECD’s Financial Action Task Force.77 Amongst others, main areas concerned are banking supervision; monetary and financial policy transparency; data dissemination; fiscal transparency and payments sys-tems. The Reports on the Observance of Standards and Codes summa-rizing countries’ observance of these standards are prepared and pub-lished by the IMF, although the Member States do have a certain influ-ence on their own report.78 The reports covering financial sector stan-dards are usually prepared in the context of the Financial Sector Assess-ment Programs of the World Bank.

74 Article IV IMF Agreement. 75 Cf. M. Allen, “Standards and Codes – Implementing the Fund’s Medium-

Term Strategy and the Recommendations of the 2005 Review of the Initia-tive”, 29 June 2006 <http://www.imf.org>; M. Allen/ D.M. Leipziger, “The Standards and Codes Initiative – Is It Effective? And How Can it be Im-proved?”, 1 July 2005 <http://www.worldbank.org>.

76 The World Bank Group, International Financial Architecture <http://www.worldbank.org/ifa/ifa_more.html>.

77 Financial Action Task Force <http://www.fatf-gafi.org>. 78 IMF, Reports on the Observance of Standards and Codes

<http://www.imf.org>.


In this context, the range of activities of the IMF and World Bank should be distinguished. Although both share the same goal, their ap-proaches to further a more stable and prosperous global economy are complementary, partly overlapping and sometimes mixed with regard to their similar features, like members, annual meetings or headquarters. In brief, the Fund focuses more strongly on macroeconomic issues with regard to the stability of the global financial and currency system. In contrast, the World Bank concentrates more on long-term economic development assistance as well as poverty reduction in less and least de-veloped countries by providing technical and financial support to help those countries reform particular sectors or implement specific projects, e.g. building schools and health centers, providing water and electricity, fighting diseases and protecting the environment.79 But in many areas of their very similar, partly overlapping activities the IMF and the World Bank collaborate, as laid down in a concordat.80 Therefore, Keynes was probably right when he accentuated at the inaugural meet-ing that the Fund should be called a bank, and the Bank should be called a fund. Confusion has reigned ever since.81

3. Economic and Social Council of the United Nations

The United Nations, in particular the General Assembly and the Secu-rity Council are less focused on the global financial and monetary sys-tem due to their main tasks. Although the Economic and Financial Committee (Second Committee) of the UN General Assembly is en-gaged in issues of economic growth and development, such as macro-economic policy questions including international trade, the interna-tional financial system and sustainability of external debt, it deals with the questions from the perspective of development cooperation and aid only.

With regard to the matter at hand, ECOSOC was established in or-der to coordinate international economic, social and related work.82

79 IMF Factsheet, “The IMF and the World Bank” <http://www.imf.org>. 80 Cf. J.M. Broughton, “Silent Revolution: The IMF 1979-1989”, 1 October

2001, Chapter 20 – Managing the Fund in a Changing World <http://www.imf.org>.

81 D. Driscoll, “The IMF and the World Bank: How do they differ?” <http://www.imf.org>.

82 Arts 62 et seq. UN Charter.


Within the UN system, the Council serves among others as the central forum for discussing international economic and social issues and is, in-ter alia, responsible for promoting higher standards of living, full em-ployment, and economic and social progress, as well as for identifying solutions to pressing problems in these areas. Relating to these issues, the Council has the power to make or initiate studies and reports and to formulate recommendations, addressed to the General Assembly, the Member States and the specialized agencies concerned.83 In particular, it may enter into agreements with agencies referred to in Article 57 of the UN Charter, e.g. IMF and World Bank defining the terms of relation-ship with the United Nations.84 But for the mentioned historical rea-sons, the capacity of ECOSOC to influence international policies in trade, finance and investment is very limited.

Already in 2005, the World Summit requested the establishment of ECOSOC as a quality platform for high-level engagement among Member States and with the international financial institutions, the pri-vate sector and civil society to debate on emerging global trends, poli-cies and action.85 In November 2006, subsequent proposals by the re-port of the High-level Panel on System-Wide Coherence86 aimed to es-tablish a Global Leaders’ Forum of the Economic and Social Council as a counter-model to the G8 and G20. The Forum should comprise 27 heads of state (L27), corresponding to half of the ECOSOC member-ship, and meet annually to provide international leadership in the de-velopment area. But unfortunately, this ambitious proposal was not ap-proved by the General Assembly.

4. International Cooperation beyond the United Nations System

a. “Groups”

One of the most remarkable facts, underlining the multiplicity of ac-tors, is the existence of several groups and institutions, settled beyond the UN system, but with considerable influence. Primarily, the out-standing functions of informal groups, like the G7/8 and the G20, as 83 Article 62 UN Charter. 84 Article 63 UN Charter. 85 Doc. A/59/2005 of 21 March 2005, paras 171 et seq. 86 Doc. A/61/583 of 20 November 2006, para. 59.


well as the FSB must be stressed. Moreover, the role of the more insti-tutionalized BIS and the Basel Committee on Banking Supervision should be mentioned.

The G7’s origin stems from meetings held in the 1970s between poli-ticians from France, Valéry Giscard D’Estaing, and Germany, Helmut Schmidt, when both were finance ministers.87 Each subsequently as-sumed the leadership of their respective countries, just as the mid-1970s oil crisis was buffeting the world’s largest economies. Giscard D’Estaing, then the President of the French Republic, urged the leaders of Germany, Canada, Italy, Japan, the United Kingdom and the United States to meet in 1975 to discuss how to adequately respond to the oil crisis.88 Enlarged by the Russian Federation in 1998, the G8 is a forum of eight of the world’s most industrialized nations, aimed at finding common ground on key topics and solutions to global issues.

In addition, the G7/8 developed a network of supporting ministerial meetings, which allows ministers to meet regularly throughout the year in order to continue the work set out at each annual summit.89 Since 1992, as reaction to various financial crises after the breakdown of the gold standard, the G7 increasingly was concerned with the stability of the global financial system. The 1995 collapse of the Barings Bank had already demonstrated the fragile and interconnected nature of the mod-ern financial system. With regard to the suggested inherent dangers of contagion and systemic breakdown, several international organizations (e.g. IMF, World Bank, WTO) were invited to work together with the G7 in improving financial market stability. These organizations had their debut at the Lyon Summit (1996)90 and subsequent meetings con-tinued to explore new avenues for cooperation. In 1998, the formation of the G7-finance ministers addressed the report “Strengthening the Architecture of the Global Financial System”91 to the G7-leaders, but no specific action plans resulted until the financial crisis occurred.92

87 Cf. details A. Brouder, “G8”, in: C. Tietje/ A. Brouder (eds), Handbook of

Transnational Economic Governance Regimes, 2009, 95 et seq. 88 Gramlich, see note 37, 415. 89 G8 Information Centre, “What is the G8?” <http://www.g8.utoronto.ca>. 90 Finance Ministers Report to the Heads of State and Government on Inter-

national Monetary Stability, Lyon G7 Summit, 28 June 1996 <http://www.g8.utoronto.ca>.

91 Report of G7 Finance Ministers to G7 Heads of State or Government for their meeting in Birmingham, May 1998 <http://www.g8.utoronto.ca>.

92 See for the role of G7 until 2000 Gramlich, see note 37, 425 et seq.


At the Cologne Summit in June 1999, in addition to the G7, the new G20-forum of finance ministers and central bank governors, formed by the 19 largest national economies of the world93 plus the European Un-ion, was established. In addition to these members, the respective chief executive officers of some of the important global financial forums and institutions, like IMF, World Bank and IMFC, participate in meetings of the G20.

Emphasizing that new international organizations are not required, the new G20-forum should form a “mechanism for informal dialogue in the framework of the Bretton Woods institutional system to broaden the dialogue on key economic and financial policy issues among sys-temically significant economies and to promote cooperation to achieve stable and sustainable world growth that benefits all.”94 In fact, the ex-isting institutions should “adapt their roles to meet the demands of to-day’s global financial system: in particular […] to have the right tools to help countries to manage crises; and to take steps to enhance their effec-tiveness, accountability and legitimacy.”95 Moreover, the G20 welcomed the creation of the Financial Stability Forum (see below) and the IMFC, working together to establish an informal mechanism for dialogue among systemically important countries, within the Bretton Woods in-stitutional framework.

From the point of international law it is difficult to characterize the legal quality of the G8/20. The “groups” are gubernative committees, but they are not institutionalized as an international governmental or-ganization and do not possess international legal personality. Without having any designated linkage to the Bretton Woods institutions or to the UN system, the de facto impact of such an informal dialogue cannot be underestimated.96 The impact their meetings have given to the global financial system since the crisis will be explained later.97

93 Australia, Argentina, Brazil, Canada, China, France, Germany, India, In-

donesia, Italy, Japan, Mexico, Russian Federation, Saudi-Arabia, South Af-rica, South Korea, Turkey, the United Kingdom, the United States.

94 Statement of G7 Finance Ministers and Central Bank Governors, Washing-ton D.C., 25 September 1999, para. 19 <http://www.g8.utoronto.ca>.

95 Report of G7 Finance Ministers to the Cologne Economic Summit, Co-logne, Germany, 18-20 June 1999 <http://www.g8.utoronto.ca>.

96 In this context, Tietje, see note 23, 25 et seq., advocates for a more “func-tional approach” with regard to the definition of the international legal per-sonality of actors.

97 See under III. 2.b.


b. Financial Stability Forum/Board

The Financial Stability Board (FSB) is the successor of the former Fi-nancial Stability Forum (FSF). The Forum was founded in 1999 by the G7 in reaction to the Asian crisis of that time.98 Previously, the G7 (Ministers of Finance) had commissioned Hans Tietmeyer, one of the former governors of the German Central Bank, to recommend new structures for enhancing cooperation among the various national and international supervisory bodies and international financial institutions so as to promote stability in the international financial system. It is re-markable that Tietmeyer already criticized the same facts which were repeated in the context of the management of later crises. Particularly, faults were found within the isolated work of various international in-stitutions which seemed contradictory to the existence of systemic risks in a global financial world.99 Following the proposal, the G7-Finance Ministers and leaders in 1999 endorsed the establishment of a Financial Stability Forum as an informal group of finance ministers, central bank-ers and financial supervisors of about a dozen industrialized economies as well as of representatives of international financial and economic in-stitutions, like the IMF or BIS.100 However, emerging markets and de-veloping countries were excluded from the Forum.101 A small Secre-tariat was hosted in Basel, Switzerland, and the Forum was first con-vened in April 1999 in Washington.

In accordance with its own self-concept, the Forum should bring together:

� national authorities responsible for financial stability in signifi-cant international financial centers, namely treasuries, central banks, and supervisory agencies;

98 Cf. for details T. Porter, “Financial Stability Board”, in: Tietje/ Brouder, see

note 87, 345 et seq.; C. Tietje/ M. Lehmann, “The Role of International Law in Financial Regulation and Supervision”, JIEL 13 (2010), 663 et seq. (675 et seq.).

99 Cf. Gramlich, see note 37, 433 et seq.; D. Ruddigkeit, “Das Financial Sta-bility Board in der internationalen Finanzarchitektur”, Beiträge zum Transnationalen Wirtschaftsrecht 111 (2011), 1 et seq. (7 et seq.).

100 Finance Minister Welcomes G-7s Progress on Promoting Stability in the International Financial System, Bonn, 20 February 1999 <http://www.g8.utoronto.ca>.

101 Tietje/ Lehmann, see note 98, 675.


� sector-specific international groupings of regulators and supervi-sors engaged in developing standards and codes of good practice; international financial institutions charged with surveillance of domestic and international financial systems and monitoring and fostering implementation of standard;

� committees of central bank experts concerned with market infra-structure and functioning.102

Although these functions are important ones, the Forum neither had strict organizational structures nor precise obligations for its members, laid down in a founding charter. The article will return later to modifi-cations in the membership and mandate, which had been made to the Forum since the crisis.103 The Forum neither possessed a legal personal-ity, nor was it founded as an international governmental organization. Although it is an informal institution, its assumed position as one of a few international standard setters should not be undervalued. Due to the fact that international financial standards can hardly be qualified otherwise than as soft law because they are not legally binding, they are basically accepted as being important for sound, stable and well func-tioning financial systems.

The Compendium of Standards, first developed in 1999, as a joint product of the few standard-setting bodies represented by the Forum (currently: FSB), consists of various economic and financial standards, divided into 12 policy areas;104 the Compendium shall be periodically reviewed and updated in light of international policy development. The Key Standards for Sound Financial Systems, in particular, have to be highlighted since they represent the “minimum requirements for good practice that countries are encouraged to meet or exceed.”105 Albeit the Forum stressed that the Standards represent and deserve priority im-plementation in domestic circumstances, the international endorsement was not successful in itself. The periodical review of progress of their

102 Financial Stability Board, “About the FSB History”

<http://www.financialstabilityboard.org>. 103 See under III. 2.c. 104 Monetary and financial policy transparency; Fiscal policy transparency;

Data dissemination; Banking supervision; Securities regulation; Insurance supervision; Crisis resolution and deposit insurance; Insolvency; Corporate governance; Accounting and auditing; Payment, clearing and settlement; Market integrity.

105 Financial Stability Board, “Key Standards for Sound Financial System” <http://www.financialstabilityboard.org>.


implementation at the national level was left to the IMF’s consultation and oversight mechanisms, i.e. that the IMF was entitled to monitor the implementation of the Key Standards in Member States through Re-ports on the Observance of Standards and Codes and Financial Sector Assessment Programs. In particular, the Programs did not consist of binding provisions for the Member States of the Fund and the Forum did not have the ability to assert its own standards; its analyses were widely disregarded. In part they were criticized by the affected subjects and jurisdictions.106

c. Bank for International Settlements

aa. Development and Organizational Structure

As the world’s oldest international financial institution, the BIS107 was established on 17 May 1930 by an international treaty between eight Member States (Belgium, France, Germany, Italy, Japan, Switzerland, the United Kingdom, the United States).108 The BIS currently has 58 member central banks.109 As an international governmental organiza-tion the Bank shall foster international monetary and financial coopera-

106 Also stressed by Ruddigkeit, see note 99, 8 et seq. 107 Cf. for details K. Alexander, “Bank for International Settlements”, in: Ti-

etje/ Brouder, see note 87, 305 et seq.; Gramlich, see note 37, 417 et seq. 108 Statutes of the Bank for International Settlements (BIS), 20 January 1930.

Amendments to the original text of the Statutes of 20 January 1930 were adopted by Extraordinary General Meetings held on 3 May 1937, 12 June 1950, 9 October 1961, 9 June 1969, 10 June 1974, 8 July 1975, 14 June 1993, 13 September 1994, 8 November 1999, 8 January 2001, 10 March 2003 and 27 June 2005. The amendments adopted in 1969 and 1975 were sanctioned in accordance with the conditions laid down in article 1 of the Convention. Text as amended on 27 June 2005 <http://www.bis.org>.

109 Members are the central banks or monetary authorities of Algeria, Argen-tina, Australia, Austria, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Chile, China, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong SAR, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Japan, Korea, Latvia, Lithuania, Lux-embourg, Macedonia FYR, Malaysia, Mexico, the Netherlands, New Zea-land, Norway, Peru, the Philippines, Poland, Portugal, Romania, Russian Federation, Saudi Arabia, Serbia, Singapore, Slovakia, Slovenia, South Af-rica, Spain, Sweden, Switzerland, Thailand, Turkey, the United Kingdom and the United States, plus the ECB. Cf. BIS, “About BIS”, Organisation <http://www.bis.org>.


tion and serve as a bank for central banks, but it is not a central bank it-self.

The governance of the Bank is determined by two decision-making bodies: the General Assembly110 and the Board of Directors.111 All of the 58 central banks of the BIS are entitled to be represented and vote at the annual meeting of the General Assembly (General Meeting). Other financial authorities not being members can take part as observers at the meetings. The voting power is proportionate to the number of BIS shares issued to the state of each member represented at the meeting.

According to its mandate “The objects of the Bank are: to promote the co-operation of central banks and to provide additional facilities for international financial operations; and to act as trustee or agent in re-gard to international financial settlements entrusted to it under agree-ments with the parties concerned.”112 In special areas advisory commit-tees are created;113 in particular, the previously mentioned Basel Com-mittee on Banking Supervision114 and the Committee on the Global Fi-nancial System (CGFS) should be put on record.

The CGFS, formerly known as the Euro-currency Standing Com-mittee, was established in 1971 with a mandate to monitor international banking markets. Its initial focus was the monetary policy implications of the rapid growth of off-shore deposit and lending markets. Its atten-tion increasingly shifted to financial stability topics and to broader is-sues related to structural change in the global financial system, which finally led to the renaming and revising of the mandate in 1999 by a de-cision of G10-Central Bank Governors.115 Although the mandate was broadened to include threats towards the stability of financial markets and the global financial system, the CGFS places particular emphasis on assistance to member central banks. Consequently, its instruments are non-binding, but contain politically important recommendations.

The existence of the CGFS as well as that of the Basel Committee on Banking Supervision, which will be described in more detail below, points out that the BIS is meanwhile mainly acting as a standard setter. 110 Arts 26 et seq. BIS Statutes. 111 Arts 44 et seq., ibid. 112 Article 3, ibid. 113 Arts 42 and 43, ibid. 114 Cf. for details B. Rost, “Basel Committee on Banking Supervision”, in: Ti-

etje/ Brouder, see note 87, 319 et seq. 115 BIS Factsheet, “Committee on the Global Financial System”

<http://www.bis.org>.


The task of setting international standards is justified and determined by fostering monetary and financial stability. It could be emphasized that these two objectives are mentioned explicitly as well as separately of each other, i.e. they focus on nearly related, but different issues.116 With regard to these objectives the BIS, particularly the special commit-tees, publish recommendations, reports, standards and principles. All of these documents are not explicitly mentioned in the BIS Statutes, and thus, they are, in general, soft law and not legally binding. Although the standards are de facto complied with by many Member States, there neither exists a legal obligation to implement BIS principles and stan-dards within the respective jurisdiction nor do there exist sanctions in case of non action.

bb. The Basel Committee on Banking Supervision

Caused, amongst other reasons, by the bankruptcy of the German Her-statt Bank in 1974, the Central Bank Governors of G10-states and Switzerland founded a “Standing Committee on Banking Regulations and Supervisory Practices”, later renamed as Basel Committee on Bank-ing Supervision. Like the CGFS, the Basel Committee provides a forum for regular cooperation, but neither possess any formal supranational authority. Nevertheless, its impact carries a heavier weight, which might have been potentially caused by the experience of the Herstatt bank-ruptcy felt by the affected banks. Based on its objective – improving the quality of worldwide banking supervision – it uses the common under-standing of its members to develop guidelines and supervisory stan-dards as well as to recommend statements of best practice in areas where they are considered adequate. Regarding this, it is best known for its international standards on capital adequacy, called Basel Capital Accord, the Core Principles for Effective Banking Supervision,117 as well as for the Concordat on Cross-Border Banking Supervision. In particu-lar, the Basel Capital Accord (Basel I), based on a minimum capital standard of eight per cent to be reached by the end of 1992, was revised in 2004 by a Capital Adequacy Framework,118 called Basel II, and con-

116 See for details under III. 1.a. 117 “Core Principles for Effective Banking Supervision”, Basel Committee,

September 1997 <http://www.bis.org/publ/bcbs30a.pdf>. 118 International Convergence of Capital Measurement and Capital Standards,

“A Revised Framework of June 2004” <http://www.bis.org>.


sisting of three pillars.119 A third step, the response of the Basel Com-mittee to the financial crisis – Basel III – will be dealt with in more de-tail below.120

All of those “Basel Accords” should serve as a basis for national rule-making in the expectation that national authorities will take steps to implement the standards through detailed arrangements, tailored to the national legal system. The Basel Committee’s conclusions were never intended to have a binding legal effect; rather, the Committee in-duced only a convergence framework without attempting a detailed or full harmonization of the Member States’ supervisory systems. Its stan-dards have been progressively introduced in most, but not all member jurisdictions and also in other states with banks engaged in cross-border transactions. The EU completely recognized the standards of Basel I and II and enacted two supranational directives which had to be implemented by the EU Member States.121 This example shows how harmonizing a global standard-setting process could work, if standards are legally binding and mandatory for the Member States. But it also manifests that an integration level like the European one may not be re-alistic on the global stage for an indefinite period of time.

With regard to the relationship of BIS and its committees to other global financial institutions, it can be stated that, de facto, diversified in-formation exchange does exist. But there is no formal basis for collabo-ration between BIS and the IMF or with the FSB or G20. Rather, BIS provides for a similar output and a kind of a parallel structure which promotes the plurality of its actors. Although “competition is good for business”, a concerted and coordinated action on the part of BIS, in particular with the IMF and the FSB, would possibly lead to an accel-eration in decision-making on the global stage which seems essential for survival in times of crisis. Insofar, the recommendations of the Basel 119 The three pillars were described by BIS as: “minimum capital requirements,

which seek to refine the standardised rules set forth in the 1988 Accord; supervisory review of an institution’s internal assessment process and capi-tal adequacy; and effective use of disclosure to strengthen market discipline as a complement to supervisory efforts.” <http://www.bis.org>.

120 See under III. 2.e. 121 Directive 2006/48/EC of the European Parliament and of the Council of 14

June 2006 relating to the taking up and pursuit of the business of credit in-stitutions (recast), OJ, 30 June 2006, L 177, 1, and Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast), OJ, 30 June 2006, L 177, 201.


Committee, announced for December 2011, for cooperation with the FSB would be a big step forward.122

III. Changes and Challenges after the Start of the Crisis

1. General Remarks

Having discussed some interactions between the relevant institutional actors, the article now turns to questions relating to the impact that in-ternational law currently has and the challenges that must be coped with in the future.

First of all, financial stability, often qualified as the main objective, has to be scrutinized with regard to its global importance and its essen-tial aspects. After paraphrasing its objectives, attention should be paid to the institutional aspect and the actors who are capable of achieving the aim. Subsequently, those legal instruments which can turn the ob-jectives into effective “rules” ought to be analyzed more closely. Due to the serious impacts of soft law in the context of international financial regulations, its relationship to hard law provisions and the systematic position of both categories in international law should be looked at in the context of the global financial system.

a. Global Financial Stability as the Objective

The objective or intent of a legal provision mainly determines the tasks and responsibilities of the relevant actors who, on the other hand, are responsible for deciding whether a hard or a soft binding effect is needed or adequate. As mentioned before, the stability of the financial system, often referred to as “macro prudential supervision”, is the out-standing intention of global action on this issue. While micro prudential supervision is focused on “the day-to-day supervision of individual fi-nancial institutions”, “the focus of macro prudential supervision is the safety of the financial and economic system as a whole, the prevention of a systemic risk.”123 From an economic point of view, global financial

122 FSB/IMF/BIS, “Macroprudential policy tools and frameworks - Update to

G20 Finance Ministers and Central Bank Governors”, 14 February 2011, 1 et seq. (13) <http://www.bis.org/publ/othp13.pdf>.

123 R. Lastra, “Systemic risk, SIFIs and financial stability”, Capital Markets Law Journal 6 (2011), 197 et seq., referring to the definition of the House


stability will be qualified as a global public or social good124 with the consequence that governance structures and a rule-oriented system, be-ing predictable and stable, are needed. But before dealing with the sin-gle elements of such a rule-based system, the term of financial stability or macro prudential supervision has to be described briefly.

According to the first use of the term “macro prudential supervi-sion” by Cooke and Lamfalussy in BIS documents, dated from 1979,125 a common definition did not yet exist. Even though there hardly evolved a consensus on how to define financial stability from a macro-economic point of view,126 its importance in relation to financial stabil-ity is nonetheless widely accepted. For a long time, central banks, in particular, have recognized financial stability as an important and self-contained objective, as shown by several definitions of the respective institutions in Financial Stability Reports (FSR). In 2006, ýihák pointed out that “[T]he FSRs often make clear that they are not focused on problems in individual institutions, but rather on system-wide issues. Furthermore, there is a general understanding that financial stability re-fers to smooth functioning of the components of the financial system (financial institutions, markets and payments, settlement and clearing systems). The prevailing view is that the analysis of financial stability covers phenomena that (i) impair the functions of the financial system; (ii) create vulnerabilities in the financial system; and (iii) lead to a nega-

of Lords’ European Union Committee, The Future of EU Financial Regu-lation and Supervision, 14th Report of the Session 2008-2009, 17 June 2009 <http://www.publications.parliament.uk>.

124 See M. Camdessus, “International Monetary and Financial Stability: A Public Good”, in: P. Kenen/ A. Swoboda (eds), Reforming the Interna-tional Monetary and Financial System, 2000, 9 et seq.; H. Dieter, “The Sta-bility of International Financial Markets: A Global Public Good?”, in: S.A. Schirm, New Rules for Global Markets, 2004, 23 et seq.; Ohler, see note 2, 15 et seq.; Tietje/ Lehmann, see note 98, 670.

125 Cf. P. Clement, “The term ‘macroprudential’: origins and evolution”, BIS Quarterly Review, March 2010, 59 et seq. <http://www.bis.org>.

126 Outlined by O. Issing, “Monetary and Financial Stability: is there a trade-off?”, BIS Papers No. 18, “Monetary Stability, Financial Stability and the Business Cycle: Five Views”, September 2003, 16 et seq. (16 et seq.) <http://www.bis.org>. A very good overview gives G. Schinasi, “Defining Financial Stability”, IMF Working Papers, Doc. WP/04/187, October 2004.


tive impact on the financial system and thereby on the economy as a whole.”127

Although central banks mainly focus on monetary issues, central bankers point to certain interferences between price stability and finan-cial stability.128 This is due to the fact that serious disruption in the fi-nancial system would affect the implementation and effectiveness of monetary policy, while macroeconomic stability helps to reduce risks for the financial stability. Even though the interconnection between fi-nancial stability and monetary policy may be controversial,129 it is not the focal point of the issue at hand. Concerning its lender of last-resort-function, every central bank functions as a stabilizing (and ordering) in-stitution for financial stability regardless of whether one “global”, e.g. within the framework of the Bretton Woods Institutions, or several na-tional, respectively supranational, central banks should have direct or indirect supervisory responsibilities.130

Insofar and with regard to the legal impacts, an ordering function that a global macro prudential supervision would have on the stability of the global financial system cannot be underestimated. Due to the missing universally recognized definition of what must be understood by the stability of a financial system, the “macro” approach has to be separated from micro prudential (supervisory) objectives131 and might be generally paraphrased by two terms: firstly, the systemic objective,

127 M. ýihák, “Central Banks and Financial Stability: A Survey of Financial

Stability Reports, Seminar on Current Developments in Monetary and Fi-nancial Law”, Washington D.C., 23-27 October 2006, 1 et seq. (12) <http://www.imf.org>.

128 See for the relationship between price stability and other objectives of cen-tral banks F. Amtenbrink, “Central Bank Challenges in the Global Econ-omy”, European Yearbook of International Economic Law 2 (2011), 19 et seq. (23 et seq.).

129 K. Alexander/ R. Dhumale/ G. Eatwell, Global Governance of Financial Systems, 2006, 24; R. Ferguson, “Should Financial Stability be an explicit Central Bank Objective?”, BIS Papers No. 18, see note 126, 7 et seq.; G. Hufbauer/ D.D. Xie, “Financial Stability and Monetary Policy: Need for International Surveillance”, JIEL 13 (2010), 939 et seq.; Ohler, see note 2, 10 et seq.

130 Cf. L. Garciano/ R. Lastra, “Towards a New Architecture for Financial Stability: Seven Principles”, JIEL 13 (2010), 597 et seq. (609); also stressed by Amtenbrink, see note 128, 38.

131 Amtenbrink, see note 128, 38.


and secondly, the actors (institutes) with systemic importance.132 A similar description is used by the ECB formulating that “Financial sta-bility can be defined as a condition in which the financial system – which comprises financial intermediaries, markets and market infra-structures – is capable of withstanding shocks and the unravelling of fi-nancial imbalances. This mitigates the likelihood of disruptions in the financial intermediation process that are severe enough to significantly impair the allocation of savings to profitable investment opportunities. Understood this way, the safeguarding of financial stability requires identifying the main sources of risk and vulnerability.”133

(1) Firstly and in contrast to the micro prudential approach, which concerns the financial stability of each individual regulated institution in order to achieve the overriding goal of protection of the institution’s customers (e.g. depositors and individual investors), the macro pruden-tial one is determined by an overriding objective of maintaining finan-cial stability of the financial system as a whole. This intention is thought to be appropriate given the significant decline in economic wealth and activity that a system-wide failure could bring about and, therefore, it seems quite fit to prevent and avoid systemic risks from unfolding un-controllably in the market. In a common working paper, prepared by IMF, BIS and FSB, the systemic risk will be referred to as “[…] a risk of disruption to financial services that is (i) caused by an impairment of all or parts of the financial system and (ii) has the potential to have serious negative consequences for the real economy […].”134 Emphasizing that negative effects might have come from events caused by a (single) finan-cial institution (e.g. Lehman Brothers or the German Hypo Real Es-tate), from a single market segment (e.g. government/public bonds market) as well as from a specific group of assets (e.g. credit default swaps), “all types of financial intermediaries, markets and infrastructure can potentially be systemically important to some degree.”135

(2) By stressing the systemic aspect, the second element of macro prudential supervision is fixed on the systemic importance of subjects, in

132 Cf. Lastra, see note 123, 197 et seq. 133 ECB “Financial Stability Review”, June 2011, 1 et seq. (9)

<http://www.ecb.eu>. 134 Cf. Guidance to Assess the Systemic Importance of Financial Institutions,

Markets and Instruments: Initial Considerations. Report to the G-20 Fi-nance Ministers and Central Bank Governors, October 2009, 1 et seq. (2) <http://www.bis.org>.

135 Ibid.


particular on those institutions, activities and attitudes that are seen to threaten financial stability most. A key factor for understanding sys-temic risks is that financial institutions do not operate in isolation, but are mutually bound to each other by a broad range of business transac-tions.136 Therefore, “systemic risk” means a risk of disruption in the fi-nancial system not confined to a single institution, but threatening to jeopardize the proper functioning of at least a larger part of the market and potentially having serious spill-over or contagion effects on the real economy.137 Systemic risks contain both a cross-sectional and sectoral dimension, i.e. combining a risk concentration in individual institu-tions, in particular those which are systemically important, as well as a contagion risk caused by the interconnectedness, and a time dimension. The diversity of these dimensions, the intricate interplay between them and the fact that there are many factors affecting the various dimen-sions, like incentives, risk management, standards and the real economy add to the complexity of the task of macro prudential supervision. Re-ferring to the working paper, mentioned above, “[t]hree key criteria […] are helpful in identifying the systemic importance of markets and institutions: size [the volume of financial services provided by the indi-vidual component of the financial system], substitutability [the extent to which other components of the system can provide the same services in the event of a failure] and interconnectedness [linkages with other components of the system].”138

“Systemically important” subjects, also called Systemically Impor-tant Financial Institutions (or shortly SIFIs), could e.g. be large institu-tions, the infrastructure of the financial system as well as linkages be-tween financial institutions and markets. From a global perspective the globally acting SIFIs (G-SIFIs) are particularly relevant. One important sub-group of SIFIs, amongst others,139 are financial institutions which are very large and, therefore, considered to be Too-Big-To-Fail (TBTF).140 Often such institutions are financial conglomerates which should be subject to specific compliance with quantitative requirements (e.g. accounting and capital adequacy, liquidity, consolidated risk super-vision, intra-group transactions) and with qualitative requirements (e.g.

136 Alexander/ Dhumale/ Eatwell, see note 129, 24. 137 Ibid. 138 Guidance to Assess the Systemic Importance, see note 134, 2. 139 See for the three situations as well as the “too big to fail” problem, Ohler,

see note 2, 18 et seq. 140 See for a detailed analysis Lastra, see note 123, 198 et seq.


adequate group organization, risk management, group-wide reporting, “fit and proper” test). An obvious lesson learned during the financial crisis is that special emphasis must be put on the role of SIFIs, in par-ticular on G-SIFIs. Due to the fact that a stronger regulatory frame-work and global supervisory standards have to be installed, the G7 al-ready in October 2008 politically agreed to “take decisive action and use all available tools to support systemically important financial insti-tutions and prevent their failure.”141 In 2010 the FSB142 in cooperation with the IMF prepared the “Recommendations for Enhanced Supervi-sion”143 of SIFIs.144

Although neither the FSB nor the IMF possess an explicit mandate for obligatory measures in macro prudential supervision,145 those initia-tives must be appreciated because they show how soft law instruments can take effect. Due to the fact that the regulation of global systemic risks is the task of international “lawmakers”, clear and robust man-dates for macro prudential supervisors, acting on the transnational stage, need to be enacted. Potential conflicts between micro and macro objectives need to be managed by a clear mandate and effective mecha-nisms for conflict solution. Moreover, a close interplay between macro supervision and other policy fields is required.

b. Aspects of Governance, Legitimacy and Effectiveness

As pointed out by L. Garciano and R. Lastra, the “multiplicity of ac-tors and the mushrooming of international fora,”146 acting on issues of cross-border financial stability and global monetary affairs must be un-derlined as a very important aspect. Bodies within the UN system, in particular the IMF, institutions beyond it, like the FSB or the BIS, as well as informal “gubernative” formations, like the G20, are co-existing 141 G7 Finance Ministers and Central Bank Governors, Plan of Action of 10

October 2008, Washington D.C., para. 1 <http://www.g8.utoronto.ca>. 142 Cf. Reducing the moral hazard posed by systemically important financial

institutions-FSB Recommendations and Time Lines, 20 October 2010 <http://www.financialstabilityboard.org>.

143 Cf. <www.imf.org/external/np/mcm/financialstability/papers/sifisup.pdf> “Intensity and Effectiveness of SIFIs Supervision, Recommendations for Enhanced Supervision”, 2 November 2010.

144 See for a detailed analysis of the FSB and IMF recommendations Lastra, see note 123, 209 et seq.

145 Stressing for the IMF Tietje/ Lehmann, see note 98, 675 et seq. 146 Cf. Garciano/ Lastra, see note 130, 619.


side by side and dealing with the most urgent questions simultaneously. Or in other words: in this area there is a deep truth in the saying that too many cooks can spoil the broth. The personnel at the top of those institutions is formed out of high-ranking members, partly government representatives, and moreover, they are employing skilled staff, there-fore the very coexistence of the “stakeholders” ought to be refined and replaced by a stronger and more effective collaboration.

At the same time, the variety of actors and of mostly non-binding instruments accentuate how urgently an institutional restructuring of the acting institutions as well as clear mandates, given by the Member States, are needed.147 For historical reasons, the governance of the mul-tilateral system is complex and fragmented. The global financial archi-tecture is more characterized by the parallel existence of the several in-ternational actors than through cooperation based on a clear division of powers. Although the details and the “optimal degree”148 of such a tan-gible collaboration are very debatable and require an open dialogue among the relevant actors, the duty to collaborate, laid down by inter-national law, should be seen as a fundamental cornerstone. One poten-tial basis for such a general international legal obligation can be found in Article 56 of the UN Charter, stating “[a]ll Members pledge them-selves to take joint and separate action in co-operation with the Or-ganization [...]” in order to achieve the purposes set forth in Article 55 UN Charter. This cooperation is oriented toward the purposes of and fixed within the UN system, the obligation to collaborate unfolds as a weak and not enforceable duty.149 Therefore, the need for a system, which is strictly legally binding as well as effective rules, is obvious.

Taking a look “beyond” the UN system, the Charter of the FSB states that this Board shall “promote coordination and information ex-change among authorities responsible for financial stability”, collabo-rate with the IMF and “will promote and help coordinate the alignment of the activities of the standard setting bodies.”150 This seems a very pragmatic solution, but it is arguable whether the diction includes a le-

147 Also pointed out as one of seven principles for “a new architecture for fi-

nancial stability” by Garciano/ Lastra, see note 130, 619 et seq. 148 This question is discussed by Tietje/ Lehmann, see note 98, 680 et seq.; see

also R.H. Weber, ”Multilayered Governance in International Financial Regulation and Supervision”, JIEL 13 (2010), 683 et seq.

149 Cf. Tietje, see note 23, 34. 150 See article 2 para. 1 lit. b. and h., and para. 2 Financial Stability Board

Charter <www.financialstabilityboard.org/publications/r_090925d.pdf>.


gally binding effect or even allows sanctions in the case of an infringe-ment.151

The very evident need for action in form of binding international rules is a long drawn-out process, at the end of which a reallocation of powers or rather a transfer of competences to a “higher” level might be reached. But the short-term solution, to be agreed upon much more easily, might be found in a more effective coordination and collabora-tion among those international financial institutions and organizations having a similar spectrum of tasks and a range of activities focusing on global (macro and micro prudential) issues. Effectiveness could be im-proved by a better reconciliation and a more intensified collaboration on a “horizontal” level. In this context the overlapping between “pro-grams” of the IMF and “projects” of the World Bank, which emerged in the 1980s and 1990s, has widely disappeared. One reason for this change might result from the fact that both institutions have been more strongly restrained to their core competences and comparative advan-tages.152 One could also discover substantial interfaces in content be-tween the IMF and the FSB whereby a clear separation of the mandates and responsibilities of each one is urgently needed.153 The IMF and the BIS are cooperating in a loose manner in international banking supervi-sion. The same remark also applies for the relaunch of the “Joint Exter-nal Debt Hub”, installed in 2006 between the IMF, BIS, World Bank and the OECD.154 But with regard to redundant results there is a strong need for a more structured collaboration because of similar in-frastructures as well as of specialized expertise, found in both Bretton Woods Institutions. Finally, the position of the informal bodies in rela-tionship to the IMF, FSB and BIS should be clarified, in particular the changing role of the G20 resulting from its role as the preliminary deci-sion makers and standard setters on the gubernative level.

151 Cf. Tietje, see note 23, 34. 152 Cf. M. Allen, “Macroeconomic and Structural Policies in Fund-Supported

Programs: Review of Experience”; J.W. Adams/ M. Allen/ G.T. Nankani, “Strengthening IMF-World Bank Collaboration on Country Programs and Conditionality, Progress Report”; see for both <http://www.imf.org>.

153 See under II. 2.c. bb., II. 4.b. 154 JEDH was jointly developed by BIS, IMF, World Bank and OECD,

<http://www.jedh.org> and BIS Press Release of 30 March 2006 <http://www.bis.org>.


Another important fact is the interdependency between the WTO and the IMF. Although GATT155 and GATS156 accept the functional equivalence of the IMF Agreement and provide for a “co-ordinated policy with regard to exchange questions” with the Fund, interactions beyond the permanent exchange of information might be much better coordinated not least due to the role of the IMF relating to capital ac-count liberalization.157

The demand for stronger collaboration leads also to analyzing the matter of legitimacy and credibility of the acting institutions, i.e. that the results of the cooperation should be accepted, if possible, by all af-fected parties and subjects.

The issue of legitimacy centers upon the adequate representation of Member States in the decision-making bodies of an international gov-ernmental organization. This matter has to be strictly divided from the more European-based question of whether there is a direct democratic “chain of legitimation” between the voting public and the representa-tive acting for the Member State in international organizations. With regard to the formation of global actors, it has to be realized that a di-rect “chain of legitimation” can hardly be effective and thus should not be reclaimed. It is known that almost every international governmental organization suffers from a certain “lack of democracy”158 (or “democ-ratic deficit”) which cannot be eliminated off-hand.159 In fact, the main bodies of an international governmental organization are executive-oriented, i.e. the representatives of the Member States are sent by ad-ministrative or governmental entities, and are at best indirectly legiti-mated by national parliaments. The impact of experts needed, because of the highly complex interrelations of economic and legal questions concerning financial stability, should not lead to “preliminary” deci-sions, taken or controlled solely by some powerful countries from the

155 See Article XV paras 1-2 GATT. 156 See Article XI para. 2 GATS. 157 Cf. M. Camdessus, “Capital Account Liberalization and the Role of the

Fund”; S. Hagan, “The Fund’s Mandate – A Legal Framework”, Sections 29 et seq.; see for both <http://www.imf.org>.

158 Cf. V. Epping, in: K. Ipsen (ed.), Völkerrecht, 5th edition 2008, § 31 mar-ginal number 34.

159 See for a detailed analysis of the impacts of the financial crisis on issues of democracy M. Goldmann, “The Financial Crisis as a Crisis of Democracy: Towards Prudential Regulation through Public Reasoning”, German Law Journal 12 (2011), forthcoming.


start, and only later, formally being finalized by the relevant interna-tional body. Therefore, the issue of (parliamentary) accountability and democratic legitimacy of standard-setting bodies and rule-making insti-tutions becomes relevant in this context. With regard to the great im-portance of financial stability as the objective which comes very close to a “constitutional” aspect, it must be commended that those bodies and forums dealing with macro (and micro) prudential supervisory issues should be functionally independent, i.e. autonomous with regard to the proper fulfillment of their tasks.160 Such a high level of independence could be justified by the high technical expertise those institutions must possess with regard to their global responsibility. At the same time in-dependence has to be accompanied by transparency.161 Finally one be-comes aware of the fact that every independent institution must be con-trolled and its failures should be sanctioned by another legitimated au-thority.

A further challenge results from the upgraded position of G20 as an informal body consisting of high-ranked gubernative representatives.162 The term “gubernative” “captures more precisely than the notions of ‘executive’, ‘government’ or ‘administration’ what is meant here. The notion is based on the distinction between the politically responsible leadership of the executive branch (the gubernative) and the hierarchi-cally subordinated administration or bureaucracy. Both together form the executive branch. The term ‘government’, which is often used to name the political pinnacle of the executive branch, is too vague, since it can also mean all branches of government and the process of govern-ing.”163 At present, the G20 represents gubernative structures of a global financial regulatory framework, therefore it is called a “soft or-gansiation”.164 It is not unproblematic that its declarations are not le-gally binding, although they include important pre-decisions giving a rather strict direction for subsequent decisions of international financial institutions. Moreover, the formation of informal groups, like G8 or 160 Stressed as one of seven principles by Garciano/ Lastra, see note 130, 616 et

seq. 161 Garciano/ Lastra, see note 130, 616. 162 See under III. 2.b. 163 P. Dann, “The Gubernative in Presidential and Parliamentary Systems”,

ZaöRV/HJIL 66 (2006), 1 et seq. See for a detailed discussion of the term “gubernative”, A. von Bogdandy, Gubernative Rechtssetzung, 2000, 108 et seq.

164 J. Klabbers, “Institutional Ambivalence by Design: Soft Organisations in International Law”, NJIL 70 (2001), 403 et seq.


G20, is mainly determined by influential economic criteria, like the Gross Domestic Product, but hardly by democratic measures,165 evi-denced by the fact that the G20 as well as the FSB only include repre-sentatives from developed economies and, since 2008, from emerging countries. Therefore, the democratic legitimacy of the G20 as well as the lacking judicial “review” of its activities are problems.166

c. Dichotomy between Hard and Soft Law Instruments

The questions of effectual cooperation and legitimation of governance structures lead inevitably to the matter of rule-and law-making and the ability of the actors of the global financial system to create law. The creation of law consisting of norms is one of the primary functions of international governmental organizations. The capacity of rule-or law-making is even considered as constitutive for the very existence of such organizations. Norms produced by organizations vary significantly ac-cording to their subject-matter, the binding legal effect for the address-ees, the kind or lack of sanctions and the form under which they are adopted. There are no rules of general international law which deter-mine a priori the kind of norms that organizations can establish. Con-sequently, the only indication for determining the power to produce norms (pouvoir normatif) has to be sought in the “constitutional docu-ment”,167 i.e. the founding agreement or Charter of the international governmental organization.

In the context of general international law, the matter of rule-making is characterized by a dichotomy between hard and soft law. With regard to “rules” of the global financial system, the mentioned dualism is very characteristic and typifies the dichotomy of interna-tional hard and soft law. The corpus of hard law gives rise to enforce-able obligations and therefore has to be reasonably certain and predict-able so that the subjects can determine what is expected of them.168 It consists of authorizing and mandatory rules (e.g. legal acts, directives, regulations, treaties or agreements) and results in legally binding com-

165 See for a detailed analysis Goldmann, see note 159. 166 Also stressed by Ruffert/ Walter, see note 10, marginal number 100. 167 E. Klein/ S. Schmahl, in: W. Graf Vitzthum (ed.), Völkerrecht, 5th edition

2010, Chapter 4, marginal numbers 37 et seq. 168 Cf. E. Ferran/ K. Alexander, “Can Soft Law Bodies be Effective? The Spe-

cial Case of the European Systemic Risk Board”, European Law Review 35 (2010), 751 et seq. (755).


mitments for states and other subjects of international law.169 In oppo-sition, the term soft law refers to other, quasi-legal instruments (e.g. statements, principles, objectives, declarations of principles, guidelines, standards, action plans), which often take on some features of a formal treaty, which is a source of international law and governed by it,170 but fall short of the requirements to be one. Due to the fact that “the states involved do not intend to be bound by international law”,171 those commitments and standards are usually not binding and enforceable in a legal sense, or their binding force is not strict and is somewhat “weaker” than that of traditional law.172 But nevertheless they are “ca-pable of exerting powerful influence over the behaviour”173 and “regu-late” through the acceptance of the members (states), which originally created them. Although there is a very controversial debate whether soft law is a separate category of international law,174 in particular in the context of international financial regulation and supervision, it cannot be ignored that it plays an important role.

Rather different categories of “soft law” are commonly used, whereupon standardization, e.g. in the so-called Basel Accord,175 is the typical international soft law instrument.176 Due to the fact that soft law consists of flexible standards, which otherwise are hard to monitor, it

169 W. Graf Vitzthum, in: id., see note 167, Chapter 1, marginal number 14. 170 Under the terms of article 2 para. 1 (a) of the Vienna Convention on the

Law of Treaties, a treaty is defined as an international agreement that is, among other things, “governed by international law”. Article 38 para. 1 (a) of the Statute of the ICJ, lists several sources of international law including “international conventions […] establishing rules expressly recognized by […] states”.

171 Cf. A.T. Guzman/ T.L. Meyer, “International Soft Law”, Journal of Legal Analysis 2 (2010), 171 et seq. (188 et seq.).

172 Cf. Vitzthum, see note 169, marginal numbers 14, 68 et seq.; W. Heintschel von Heinegg, in: Ipsen, see note 158, Chapter 4 marginal number 20; M. Krajewski, Wirtschaftsvölkerrecht, 2nd edition 2009, marginal number 90; D. Shelton, Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System, 2004.

173 Cf. Ferran/ Alexander, see note 168, 754. 174 Cf. P. Kunig, in: Vitzthum, see note 167, Chapter 2, marginal numbers 166

et seq.; Ruffert/ Walter, see note 10, marginal number 95. 175 See under III. 2.e. 176 Tietje/ Lehmann, see note 98, 674 seq.


might be established in a low-risk proceeding.177 However, the “soften-ing” of international law may also be viewed as a threat to the transpar-ency of the international law-making process and an attempt to escape accountability. In other words: the legitimacy of hard law, resulting from institutional and procedural discipline, is confronted with soft law’s efficiency of a competitive standard-setting driven by market forces.

It should be realized though that the boundaries between the vari-ous categories are fluid.178 Besides, an evolutionary process between both categories of “law” is possible, insofar as soft law can evolve into hard law (“qualitative transition”179) by incorporation through institu-tionalized and, at best, legitimated proceedings. Insofar, the relationship between hard and soft law can be described as a model of two concen-tric circles sharing the same origin, but having different radii. While the inner circle contains hard law provisions, the outer circle consists of soft law standards, but both circles are focusing on the same objective.

Applying this model to the global financial system, the common ob-jective thereof might be defined as systemic or macro prudential stabil-ity, aforementioned as a global public good,180 safeguarding global common welfare. Global common welfare and normative structures as a part of a global regulating function are interacting due to the fact that they are interdependent: on the one hand, common welfare functions as the cultural medium to establish global normative structures (not only, but especially) for financial markets, and on the other hand, a global economic and financial governance formed by tightened legal structures are well suited to secure economic prosperity and investment protec-tion.181 Therefore, the stable inner legal circle needs to be formed by mandatory rules from hard law, whereas the outer circle consists of soft law standards, both aimed at reaching financial stability as the same ob-jective.

In this context, hard law encompasses legal rules in their truest sense, i.e. provisions obliging legal subjects. These are, in particular, the Member States of an international governmental organization or the 177 See for the different theories of a state’s intentions to enter soft law agree-

ments Guzman/ Meyer, see note 171, 171 et seq. See also Ferran/ Alexan-der, see note 168, 755 et seq.

178 Kunig, see note 174, marginal number 166. 179 Vitzthum, see note 169, marginal number 15. 180 See under III. 1.a.; see note 124. 181 Cf. Krajewski, see note 172, marginal numbers 128 et seq.


governments submitting themselves to the legal effect of the agreed provisions. It is common practice that such hard law may evolve from former soft law standards which have been globally established and ac-cepted in a transnational context. Insofar international governmental organizations, in particular the IMF (and the World Bank), play an im-portant role as they can exert pressure on countries to adopt interna-tionally recognized standards and codes.182 In this respect, the outer circle of soft law has the ability to influence the future development of hard law commitments by being a bridge between no commitments at all and legally binding commitments. However, this concept assumes that the legal effect and the binding force of the instrument, used by the relevant actor, can be determined explicitly. This task could be mastered by classification in the founding documents or by internal rules of pro-cedure, i.e. established by a self-classification of the institution.

Based on its Agreement, the IMF may use hard law instruments and strict rules in relation to its members as well as to third parties. As to the lending activities, in particular the recently expanded New Ar-rangements to Borrow (NAB),183 the IMF depends on a legally binding “concurrence of the member”.184 Furnishing of information,185 ineligi-bility to use the Fund’s general resources186 and compulsory with-drawal187 are further examples of mandatory decisions, unilaterally made by the Fund. But in general, a well prepared legal “toolbox” is not existing. This is due to the fact that “decisions”, depending on their content, can vary between “abstract-general” and “concrete-individual” ones. Besides, the facts and the results are often rather diverging. “Prin-ciples” and “policies”188 shall be substantial for fulfilling the Fund’s tasks, but they have a soft law character because juridical remedies on the part of the Member States against IMF “law” do not exist.

In this context, the Reports on the Observance of Standards and Codes189 might be an excellent example. As “benchmarks of good prac-

182 Cf. Ferran/ Alexander, see note 168, 754. 183 See under III. 2.a. 184 Article VII Section 1 lit. i.) of the IMF Agreement. 185 Article VIII Section 5, ibid. 186 Article V Section 5, ibid. 187 Article XXVI Section 2, ibid. 188 E.g. article IV Section 3 lit. b.), article V Section 3 or 7, ibid. 189 See under II. 2.c. dd.


tice”,190 they do not consist of any performance obligations imposed upon the Member State concerned. “Compliance” with the standards will be merely observed only upon request and a “pass-fail judgement” in a report will only be published if it has been accepted by the state. This should not cover the fact that, particularly in the field of standard-setting by the way of soft law, the principle that self-imposed rules must be followed was accepted by the standard-setting institutions. But after ten years of practice with such Reports, one may say that almost three quarters of the IMF Members have complied with one or more models of reports and the reports publication rate has been fairly stable at around 75 per cent.191 Besides, the participation by states in standard assessments is voluntary. Thus, effective mechanisms to observe the im-plementation in the respective jurisdiction are missing, which has also been realized by the IMF.192

But the IMF as well as other standard setters should turn their atten-tion likewise to elaborating distinct internal rules of procedure, estab-lished and self-classified by the governing body of the acting institu-tion; e.g. the formation of the Board of Governors in case of the IMF.193 A public announcement would cater for transparency and accountabil-ity. Simultaneously, those rules of procedure could deliver structural criteria for the internal formation and the major shareholders, as well as for the external cooperation with other related standard-setting bodies, e.g. World Bank, BIS and the Basel Committee.

2. Role of Selected Global Financial Institutions after the Start of the Crisis

After having discussed general questions of restructuring of the global financial system, the aforementioned challenges should be met by those actors defined as being relevant. First of all, these are the IMF, the G20

190 IMF Factsheet, “Standards and Code, The Role of the IMF”

<http://www.imf.org>. 191 Allen/ Leipziger, see note 75, 5. 192 IMF, “Assessing the Implementation of Standards-An IMF Review of Ex-

perience and Next Steps”; IMF, “Executive Board Reviews Experience with the Financial Sector Assessment Program, Options for the Future, and Complementary Reforms in Surveillance and the Assessment of Standards and Codes”, see for both <http://www.imf.org>.

193 See for details under II. 2.b. bb.


and the FSB; furthermore, one has to deal with the United Nations, the BIS and the Basel Committee. Finally, the special role of the European Union as a highly integrated regional economic organization, and in particular of the European Central Bank (ECB) and the European Sys-tem of Central Banks (ESCB) should be observed with regard to its ex-ternal relationship concerning international financial issues.

a. International Monetary Fund

Without any doubt, the IMF was one of those international financial organizations which has been confronted with major challenges since the beginning of the crisis.

The G20 stressed at their Washington Summit (2008) that due to its “universal membership and core macro-financial expertise” the IMF seems to be ideally predestined to be a global actor and take “a leading role in drawing lessons from the current crisis.”194 It is remarkable that such a clear mandate for dealing with macro prudential issues of sys-temic importance is not yet explicitly stated, in particular in the IMF Agreement. In a wider sense, it can be possibly construed from the Fund’s surveillance function,195 which authorizes the Fund together with the World Bank, to work out Reports on the Observance of Stan-dards and Codes (ROSCs) and Financial Sector Assessment Programs (FSAPs). But as previously mentioned, those programs have a limited scope due to the fact that participation is voluntary and they do not consist of binding provisions for the Member States.196 Therefore, the Fund is restricted to the “Guidance to Assess the Systemic Importance of Financial Institutions, Markets and Instruments”,197 meaning that the “principles”, as before are not strictly binding for the Member States.198 Although the Fund has been able to contribute to the enforcement of those standards and principles through its surveillance function, since 194 Declaration of the Summit on Financial Markets and the World Economy,

Washington D.C., 15 November 2008 <http://www.g20.org>. 195 Also mentioned by R. Lastra, “The Role of the IMF as a Global Financial

Authority”, European Yearbook of International Economic Law 2 (2011), 121 et seq. (124).

196 See for ROSCs and FSAPs under II. 2.b. bb. 197 Guidance to Assess the Systemic Importance of Financial Institutions, see

note 134. 198 Article IV Section 3 lit. b.) sentence 4 of the IMF Agreement. Cf. C.

Schiller, “Improving Governance and Fighting Corruption: An IMF Per-spective”, 31 March 2000 <http://www.oas.org>.


before the crisis, there has been a widespread accord that this surveil-lance needs to be made more effective.199 The IMF should use in a much better way its global macroeconomic expertise as a comparative advan-tage and focus on core tasks, framing essential issues in a global context.

The debate on the future global monitoring role-to-be of the Fund as a guarantor for stability of the global financial system was also stressed at the IMF-World Bank spring meeting 2011.200 As requested by the G20 in 2008,201 the collaboration with the FSB on regular Early Warning Exercises (EWE) is now part of the IMF’s efforts to strengthen surveillance.202 Early Warning Exercises are quite useful instruments because they deliver integrated macroeconomic and financial perspec-tives on systemic risks as well as on cross-sectoral and cross-border spill over effects. As to a clearer setting of tasks there are certain signs that the IMF tends somewhat more to a macro prudential approach, also taking a leading role in economic, macro-financial and sovereign risk concerns, while the FSB seems to focus more on financial system regulatory and supervisory issues.203 Another example of a more effec-tive multilateral surveillance is the development of Spillover Reports, which could be combined with reports already required under article IV of the IMF Agreement.204

The lending activities were reviewed and reformed as well. They had become less important before the crisis because almost all debtors could refinance themselves better on the private financial markets.205 As a result thereof two new, insurance-like instruments were introduced: the Flexible Credit Line (FCL) and the Precautionary Credit Line

199 Cf. Lastra, see note 195, 124 et seq. 200 “New Emphasis on IMF’s Global Monitoring Role”, IMF Survey, 17 April

2011 <http://www.imf.org>. 201 “The IMF, with its focus on surveillance, and the expanded FSF, with its

focus on standard-setting, should strengthen their collaboration, enhancing efforts to better integrate regulatory and supervisory responses into the macro-prudential policy framework and conduct early warning exercises”, see Summit Declaration, see note 194.

202 Cf. R. Moghadam/ S. Hagan, “Modernizing the Surveillance Mandate and Modalities”, 26 March 2010, 1 et seq. (6) <http://www.imf.org>.

203 IMF Factsheet, “IMF-FSB Early Warning Exercise”, 13 April 2011 <http://www.imf.org>.

204 Cf. Moghadam/ Hagan, see note 202, 11 et seq. 205 See under II. 2.c. cc.


(PCL).206 In both cases the increased impact of conditionality resulted in creating “hard” structural criteria. By means of the FCL the IMF provides a short-term funding to weather the crisis and to reassure fi-nancial markets as well as investors. Because this lending instrument is primarily destined for countries with robust policy frameworks and very strong track records in economic performance, it contains an ex-ante conditionality component which is tied to strict “pre-qualification criteria” instead of ex-post “program conditions”, as well as “social conditionality”. Until now, three countries, Poland, Mexico and Co-lombia, have accessed the FCL.207 By contrast, the PCL was designed in 2010 and functions, as the name says, as a “precautionary”, i.e. a crisis prevention tool in order to meet the needs of countries which have some remaining vulnerabilities that preclude them from using the FCL. PCLs combine a qualification process with focused ex-post condition-ality aimed at addressing vulnerabilities identified during qualifica-tion.208 Moreover and because the crisis highlighted the necessity for ef-fective global financial safety nets, the IMF, in response to G20 de-mands, is now dealing with the proposed arrangements of a Global Fi-nancial Safety Net.209

In comparison to the not formalized G20-forum or the less struc-tured FSB, the IMF is already “institutionalized”, i.e. well organized, equipped with staff and strives for consistency. Moreover, the IMF pos-sesses unique legitimacy as a treaty-based international governmental organization of more than 65 years standing,210 therefore it has been characterized as “the international monetary institution par excel-lence”211 “best placed to adopt the role of a ‘global sheriff’ with regard to international financial stability.”212

206 C. Anderson, “New Rules of Engagement for IMF Loans”, IMF Survey

<http://www.imf.org>. 207 IMF Factsheet, “The IMF’s Flexible Credit Line (FCL)”, 31 March 2011

<http://www.imf.org/external/np/exr/facts/fcl.htm>. 208 IMF Factsheet, “The IMF’s Precautionary Credit Line (PCL)”, 31 March

2011 <http://www.imf.org/external/np/exr/facts/pcl.htm>. 209 J. Lipsky, “Lunchtime Speech: Assessing the Agenda for Economic Policy

Cooperation”, 7 March 2011 <http://www.imf.org>. 210 Cf. Lowenfeld, see note 23, 595. 211 Lastra, see note 195, 122, 194. 212 Garciano/ Lastra, see note 130; see also S. Hagan, “Enhancing the IMF’s

Regulatory Authority”, JIEL 13 (2010), 955 et seq.


Still with regard to reforming the internal structure and governance of the IMF, most endeavors focused on the – rather permanent – ques-tion of quotas and shares which, due to the current IMF Agreement, are the only possibility to modernize the organization step by step. Also the last “governance reform”, agreed upon by the IMF in November 2010 and planned to be implemented in 2012, was mainly about rear-ranging voting shares; in this case, the change intended to react to the increasing importance of emerging market countries and, by a shift of six per cent of quota shares, to give a stronger impact to some countries known as the BRICS (Brazil, Russian Federation, India, China and South Africa).213 But the most serious fault in the proposed reforms seems that any changes in the composition and size of the IMF’s Execu-tive Board have been neglected. Debates about the size and the distribu-tion of chairs as well as the disproportionate dominance or “overrepre-sentation” of European “chairs” were taken off the agenda completely. But the composition and procedures of the Executive Board are those aspects of the IMF governance which need to be reformed urgently.

In any case, on the external side, the horizontal and vertical inter-connection between other global financial institutions is highly rele-vant, thus a re-adjustment of the International Monetary and Financial Committee214 could be combined with the integration of the changing role of the G20 as an informal gubernative institution.215 Referring to the internal structure, the Fund needs a better institutional balance in such a way that the position and adequate division of labor and respon-sibilities of the main bodies would be reorganized by effectuating board procedures. The double role of the Managing Director who is both chairman of the Executive Board and Chief Executive Officer should be scrutinized. Moreover, the representatives in the main bodies are execu-tive-oriented.216

A further organizational deficit seems to be the absence of judicial restraint with regard to actions of the main bodies. An external arbitra-tion tribunal is only competent for special cases which neither include the temporary suspension of membership nor the withdrawal of a

213 IMF Survey Magazine “Governance Reform: IMF Board Approves Far-

Reaching Governance Reforms”, IMF Survey, 5 November 2010, <www.imf.org>.

214 IMF “Executive Board Report to the IMFC on Reform of Fund Govern-ance”, paras 6-7 , ibid.

215 See under III. 2.b. 216 See under II. 2.b. bb.


Member State.217 A Dispute Settlement Mechanism, like that in the WTO,218 neither exists for the IMF nor is one intended to be estab-lished.

b. Group of Twenty

Since the beginning of the financial crisis the dominance on issues of fi-nancial markets has shifted from the G7/8 to the larger forum of G20. As a consequence of the October 2008 agreement of the G7 (Ministers of Finance) the former US President, George W. Bush, invited the lead-ers of the G20 countries to meet in order to coordinate the global re-sponse in the aftermath of the Lehman case as “the current situation calls for urgent and exceptional action.”219 While there had been a meet-ing of the finance ministers at the level of G20 since 1999,220 the Wash-ington Summit in 2008 upgraded this forum to the level of Heads of State and Government. Thus the crisis entailed an upgrading of the G20 to a gubernative level, partly characterized as the “centre of really new international financial architecture.”221

However, the Summit’s participants were satisfied, for the time be-ing, with identifying the root causes of the crisis. “Policy-makers, regu-lators and supervisors, in some advanced countries, did not adequately appreciate and address the risks building up in the financial markets, keep pace with financial innovation, or take into account the systemic ramifications of domestic regulatory actions. Major underlying factors contributing to the current situation were, among others, inconsistent and insufficiently coordinated macroeconomic policies, inadequate structural reforms, which led to unsustainable global macroeconomic outcomes. These developments, together, contributed to excesses and ultimately resulted in severe market disruption.”222 Moreover, the first response to the crisis led the G20 to the basic insight that all financial

217 Article XXIX (c) conjunction with article XXVII Section 1 respectively ar-

ticle XXVI of the IMF Agreement. 218 Understanding on Rules and Procedures Governing the Settlement of Dis-

putes (Dispute Settlement Understanding, DSU), Annex 2 of the WTO Agreement, 15 April 1994.

219 G7 Finance Ministers and Central Bank Governors, Plan of Action, see note 141.

220 See under II. 4.b. 221 Cf. Tietje, see note 23, 24. 222 Summit Declaration, see note 194, paras 3-4.


markets, products and participants must be subject to appropriate regu-lation and supervision.223

The subsequent summit in London in 2009 revealed the necessity for a concrete and concerted action plan called “The Global Plan for Recovery and Reform”224 which was, no doubt, a landmark in the de-velopment of international financial architecture and has been the initial point for practical measures on the global level.225 Then, the G20 agreed that the global financial system should be based in the future on two pillars, namely the IMF and a reinforced and enlarged FSF, renamed FSB (see above), under the overall guidance of the G20.226 The coopera-tion among the international financial institutions (IMF, World Bank, FSB, Basel Committee) should be strengthened, in particular, by creat-ing – macro prudential oriented Early Warning Exercises as well as mi-cro prudential related – supervisory colleges for all significant cross-border activities of subjects.

The Pittsburgh Summit (2009) endorsed “to reform the global archi-tecture to meet the needs of the 21st century.”227 By designating “the G-20 to be the premier forum for our international economic coopera-tion,”228 the G20 stressed the increased importance of this broader-defined, global gubernative circle of policy makers. Furthermore, the FSB was reshaped.229 Afterwards, by pointing out the need for a finan-cial sector reform “Principles for Innovative Financial Inclusion”230 were adopted at the Toronto Summit (2010). At the Seoul Summit (2010)231 the G20 agreed to tighten the capital requirements (Basel III) 223 Cf. M. Giovanoli, “The Reform of the International Financial Architecture

after the Global Crisis”, International Law & Policy 42 (2009), 81 et seq. (93).

224 “The Global Plan for Recovery and Reform: the G20 London Summit”, 2 April 2009 <http://www.g20.org>.

225 See for a detailed description of the London Summit’s Decisions Giovanoli, see note 223, 98 et seq.

226 Giovanoli, see note 223, 94. 227 “Leaders Statement: The Pittsburgh Summit”, 24-25 September 2009, paras

1 and 18 <http://www.g20.org>. 228 Ibid., para. 19. 229 See under III. 2c. 230 “The G20 Toronto Summit Declaration”, 26-27 June 2010

<http://www.g20.org>. “Principles for Innovative Financial Inclusion” <http://www.g20.utoronto.ca>.

231 “The G20 Seoul Summit Leaders’ Declaration”, 10-12 November 2010 <http://www.g20.org>.


and demanded less transnational, but stronger international regulatory control. It is also not surprising that the priorities of the current French G20 presidency refer to “Reforming the International Monetary Sys-tem” and “Strengthening financial regulation.”232

Precisely because of its upgraded role, the informal legal status of G20 has to be seen critically. The G20 possesses neither a statute setting up rules for, e.g., the rotating presidency, nor do exist headquarters or an administrative staff of its own. Declarations of G20 are legally non-binding, but include important pre-decisions, giving straight direction for subsequent formal decisions of international financial institutions. Although the internal assignment of tasks of those international gov-ernmental organizations will not be affected legally, the “institutional-ized structures” (IMF, World Bank) run the risk of losing their weight with regard to the assembled G20 representatives. The democratic le-gitimacy of G20, as well as the missing judicial restraint is not unprob-lematic because the G20, at present, represents an important cross point in the global framework of regulation of the financial system.

Since the beginning of the crisis, the G20 has impressively demon-strated that this forum has the ability to act quickly and unconvention-ally and to develop “global” solutions, which at least unite very impor-tant (industrial) countries, as evidenced by the proposals for “Reinforc-ing International Cooperation and Promoting Integrity in Financial Markets”233 of a G20 working group. Future challenges should not ig-nore this development but it would also be necessary to ensure that the decisions were soundly guaranteed and continuously accepted and, in the best cases, legally binding.234 Otherwise and similar to the G8 in earlier times, the credibility of the G20 would be at stake. For this rea-son, the political impact of G20 must be consolidated institutionally, which could be achieved by giving it an explicit mandate and clear or-ganizational structures as well as responsibilities.235 Therefore, the G20 could be reshaped, perhaps as a committee in the IMF, e.g. a follower of the International Monetary and Financial Committee.236 But that would, at first, require that the G20 members were willing not to act on

232 “Priorities of the French Presidency” <http://www.g20-g8.com>. 233 “G20 Working Group on Reinforcing International Cooperation and Pro-

moting Integrity in Financial Markets (WG2)”, Final Report, 27 March 2009 <http://www.minefe.gouv.fr>.

234 Cf. Tietje/ Lehmann, see note 98, 677. 235 Cf. Giovanoli, see note 223, 105. 236 See under II. 2.b. bb.


behalf of the relevant countries, but to transfer the group’s responsibil-ity for global financial affairs to one original international governmental organization, thus resulting in more consistency.

c. Financial Stability Board

Regarding modifications to the FSB since the start of the crisis, the G20 Washington Summit (2008) set the initial point by calling for a larger FSF membership by extending it to G20-countries which were not yet members of the Forum, such as China. In 2008, the FSF delivered a re-port on “Enhancing Market and Institutional Resilience”237 to the G7 Finance Ministers. Based on this report as well as on a wide consensus reached at the G20 meeting in Pittsburgh,238 the London Summit (2009) re-established the Forum as the FSB, elaborating upon its internal structure and broadening its mandate to include the promotion of fi-nancial stability, by inserting both into the Financial Stability Board Charter.

The FSB consists of three groups of participants:239 (1) member ju-risdictions, comprising 23 countries (i.e. their finance ministers, central bank governors, leading banking supervisors) as well as the ECB and the European Commission; (2) International Financial Institutions (IMF, World Bank, BIS, OECD); (3) six international standard-setting, regulatory, supervisory and central bank bodies,240 e.g. Basel Commit-tee.

The establishment of the FSB Charter had legal impacts on the in-ternal structure and governance of the re-named Board and placed it on a stronger institutional ground. However, the founding document re-mains a purely political one. As before, the FSB possesses no legal per- 237 “Report of the Financial Stability Forum on Enhancing Market and Insti-

tutional Resilience”, 7 April 2008 <www.financialstabilityboard.org>. 238 Leaders’ Statement, The Pittsburgh Summit, see note 227, para. 19: “We es-

tablished the Financial Stability Board (FSB) to include major emerging economies and welcome its efforts to coordinate and monitor progress in strengthening financial regulation.”

239 Financial Stability Board Charter, Annex A, List of FSB Members <http://www.financialstabilityboard.org>.

240 Basel Committee on Banking Supervision (BCBS); Committee on the Global Financial System (CGFS); Committee on Payment and Settlement Systems (CPSS); International Association of Insurance Supervisors (IAIS); International Accounting Standards Board (IASB); International Organisa-tion of Securities Commissions (IOSCO).


sonality and thus it is not an international governmental organization. The Board is “not intended to create any legal rights or obligations,”241 therefore reports, principles, standards, re-commendations and guid-ance, in short: all documents developed by the FSB,242 might be quali-fied in terms of a self-commitment of the Board’s members or as soft law.

The FSB has a complex internal structure.243 The Plenary as the de-cision-making body, the Steering Committee, the Chairperson and the Secretariat. All enactments of the Plenary “shall be taken by consen-sus,”244 meaning that a positive vote is not required. Each of the 64 Ple-nary Representatives can formally prevent by its veto that a commit-ment will be made. This possibility of rejection might complicate an ef-fective exercise of functions. If the FSB really should be the “nucleus” or “fourth pillar” of a global network of economic governance, as often demanded,245 the “constitutional basis” of the Board has to be devel-oped and changed to an institutionalized organization under interna-tional law, supplemented by legally binding instruments for implement-ing the Board’s mandate.

According to the Charter, the objective of the FSB includes a clear commitment to the interest of global financial stability,246 which can be characterized as a global and macro prudential intention. The broaden-ing of the mandate contains several tasks which can be divided into two groups regarding the two sentences explaining the objective: firstly, a coordination function to encourage “the work of national financial au-thorities and international standard-setting bodies (SSBs) in order to develop and promote the implementation of effective regulatory, super-visory and other financial sector policies”, and secondly, to address “vulnerabilities affecting financial systems in the interest of global fi-nancial stability”247 in collaboration with the international financial in-

241 Article 16 FSB Charter. 242 Article 7 para. 3 lit. c.), ibid. 243 Article 6, ibid. In the FSB Charter, detailed tasks are described for the Ple-

nary (arts 7 et seq.), for the Steering Committee (arts 12-13), for the Chair-person (article 14) and for the Secretariat (article 15).

244 Article 7 para. 2 FSB Charter. 245 Cf. Tietje, see note 23, 31. 246 Article 1 FSB Charter. 247 Article 1 ibid., to the first group, mentioned in article 2 FSB Charter, par-

ticularly belong lit. b.), c.), d.), e.) and f.); to the second group can be counted in particular lit. a.), g.) and h.).


stitutions. Whereas the first task will strengthen the role of the FSB as an international moderator and coordinator of standard-setting bodies, the second one obliges the Board to cooperate with the international fi-nancial institutions in fighting systemic threats to the global financial system.248

By focusing on global financial stability as the main objective, the Board’s tasks are not limited to macro or micro supervision, but rather face two sides of the same coin by mentioning “prudential and systemic risk, market integrity and investor and consumer protection, infrastruc-ture, as well as accounting and auditing.”249 It seems beyond dispute that a micro prudential dimension needs to be added by a macro per-spective,250 which should be integrated in a single sound and consistent legal framework. However, the tasks for both dimensions ought to be strictly limited. In this context, a well-defined obligation to collaborate is not excluded, but, in fact, actually desired. For the FSB the Charter expressively declares its intent of collaborating “with the IMF to con-duct Early Warning Exercises”,251 but there is no distinct division be-tween IMF and FSB regarding macro and micro surveillance. Although one may be in doubt, there is a general tendency that the FSB is “better situated to take the lead on the more specialized work of micro-prudential and regulatory oversight”, while the IMF should “take the lead in identifying and prioritizing macro-systemic risks.”252

Certainly, effective collaboration between the FSB and the IMF has been substantially strengthened through the Early Warning Exercises. As background for Early Warning Exercises, the work on data dissemi-nation makes it obvious that the IMF relies on data which can be better delivered by the FSB because its members (central banks, supervisory authorities) have direct access to the relevant data.253 But this example

248 Cf. Giovanoli, see note 223, 14. 249 Article 2 para. 2 FSB Charter. (Emphasis added.) 250 Cf. A. Crockett, “Marrying the micro- and macro-prudential dimensions

of financial stability”, BIS Paper No. 1, 21 September 2000 <http://www.bis.org>; G.J. Schinasi/ E.M. Truman, “Reform of the Global Financial Architecture”, Bruegel Working Paper 2010/05, 1 et seq. (26) <http://papers.ssrn.com>.

251 Article 2 para. 1 lit. h.) FSB Charter. Cf. also IMF, “The IMF-FSB Early Warning Exercise”, September 2010 <http://www.imf.org>.

252 Emphasis in the original, “IMF, The Fund’s Mandate-An Overview”, 22 January 2010, para. 11 <http://www.imf.org>.

253 Also stressed by the IMF, ibid., para. 12.


also indicates the need for a better shaped framework for appropriate tasks, which only the G20 could allocate to the FSB. Thus, it should be clear that the Board currently functions as a bridging link in the net-work of global economic and financial governance, i.e. as a mediator between the standard-setting bodies and the national level, and as a dis-tributor between G20 and IMF. In the future the FSB should strive not to be caught in the net of the plurality of actors, but liberate itself “from a ‘very soft’ forum to – albeit still non-binding – a more rule-based in-stitution”254 and thus as a more independent player in the global con-cert.

d. United Nations

At first sight, the United Nations do not really appear in the context of restructuring the global financial system. However, looking more closely, the question does arise which role the United Nations could play in the international financial architecture and whether they can as-sume the gubernative part.

The final, so-called Outcome Document of the “Conference on the World Financial and Economic Crisis and its Impact on Development” having taken place in June 2009 in New York,255 is remarkable. The UN General Assembly accepted the Outcome Document by Resolution 63/303 without a vote which is unique concerning global economic and financial issues. It pointed out:

“We reaffirm the purposes of the United Nations, as set forth in its Charter, including ‘to achieve international cooperation in solving in-ternational problems of an economic, social, cultural, or humanitarian character’ and ‘to be a centre for harmonizing the actions of nations in the attainment of these common ends’. The principles of the Charter are particularly relevant in addressing the current challenges. The United Nations, on the basis of its universal membership and legiti-macy, is well positioned to participate in various reform processes aimed at improving and strengthening the effective functioning of the international financial system and architecture [...]. This United Na-tions Conference is part of our collective effort towards recovery. It builds on and contributes to what already is being undertaken by di-verse actors and in various forums, and is intended to support, inform and provide political impetus to future actions. This Conference also 254 Tietje/ Lehmann, see note 98, 676. 255 A/RES/63/303 of 9 July 2009.


highlights the importance of the role of the United Nations in interna-tional economic issues.”256

However, it should be emphasized that the fundamental structures of global economic governance were established decades ago in the form of ECOSOC.257 Already the Bretton Woods conference had de-signed a clear mandate for this body and had delegated the role of po-litical leadership and coordination to ECOSOC.258 In fact and up to now, ECOSOC has been hardly successful in its attempts to establish a political governance structure which would allow identifying the fac-tual issues, to delegate them to the responsible expert committees and coordinate their work, as well as to aggregate the main results. Antici-pating not only the “weaknesses” of ECOSOC, but of the whole UN system, the President of the UN General Assembly convened a Com-mission of Experts on Reforms of the International Monetary and Fi-nancial System chaired by the highly respected US economist and No-bel laureate, Joseph E. Stiglitz. In its report259 presented in 2009, the Stiglitz Commission made a proposal to re-arrange the mandate of ECOSOC and to set up a Global Economic Coordination Council (GECC) at the level of the UN General Assembly and the Security Council, meeting annually, as well as a Global Financial Regulator and a Global Competition Regulator.260 The GECC should include not only the G20 but all UN Member States and would link the UN system to existing international financial institutions, like the IMF or the World Bank.

While ECOSOC at present rather holds the role of a technical and administrative coordination body, the proposed GECC would have a broader mandate including the authority for contributing a coherent and efficient global financial system as well as realizing the conflicts of objectives and giving structural input to the collaboration among the acting institutions. For these purposes, the new Council would be em-powered with political leadership within the UN system, i.e. in particu-lar towards the Bretton Woods Institutions, probably even the

256 Ibid., Annex, para. 2. 257 See under II. 3. 258 Cf. Arner/ Buckley, see note 73, 4 et seq. 259 Report of the Commission of Experts of the President of the United Na-

tions General Assembly on Reforms of the International Monetary and Fi-nancial System, 21 September 2009, Doc. A/CONF. 214/CRP.1.

260 Ibid., pages 90 et seq.; cf. also Arner/ Buckley, see note 73, 53 et seq.; Gio-vanoli, see note 223, 96 et seq.


WTO.261 The Council would also have the advantage of being estab-lished within the UN system, wherefore it would be under the obliga-tion to act accordingly.262 Due to the fact that financial (in)stability in-creases its “constitutional” importance for global economic and finan-cial governance, the threat of a conflict of interests that such a Council would, without doubt, be caught in, could only be adequately resolved by an institution being independent in its operations. The characteristic criterion of independence, nevertheless, demands that the Council’s members would agree to far-reaching concessions relating to sovereign powers and it seems rather uncertain that they would be willing to make such concessions.263 Indeed one wonders whether the creation of such a “super institution” is really desired by some of the powerful governmental “players” and thus, is realistic in the current geopolitical situation.

e. Bank for International Settlements

As one of the various actors dealing with global financial issues, BIS es-tablished parallel structures in several areas. Particularly in the field of standards for capital and liquidity requirements – the aforementioned Basel I and II Accords.264 The BIS built up its own specific expertise which, on the one hand, should be used extensively by other interna-tional financial institutions. On the other hand, the Basel Standards should be extended and reformulated taking regard of the post-crisis experiences. Responding to the demands of the Pittsburgh Summit (2009),265 the Basel Committee developed a reform program to address the lessons learned,266 concentrating on mandates for banking sector re-forms established by the G20. The total body of the new global stan-dards to address both firm-specific and broader, systemic risks is re-ferred to as Basel III.267 Building upon Basel II, of which the regulatory

261 Cf. Ruddigkeit, see note 99, 10; Tietje, see note 23, 36 et seq. 262 Arts 55 and 56 UN Charter. 263 Cf. Ruddigkeit, see note 99, 11. 264 See under II. 4.c. 265 See under III. 2. b. 266 “The Basel Committee’s Response to the Financial Crisis: Report to the

G20”, October 2010 <http://www.bis.org>. 267 BIS, “Compilation of Documents that form the Global Regulatory

Framework for Capital and Liquidity” <http://www.bis.org>.


and the macro economic effects on the current crisis are uncertain,268 the “new” international regulatory framework for banks (Basel III) is a comprehensive set of reform measures in order to strengthen the regu-lation, supervision and risk management of the banking sector. The broadened measures aim at (1) improving the banking sector’s ability to absorb shocks arising from financial and economic stress, whatever their source; (2) enhancing risk management and governance; and (3) strengthening banks’ transparency and disclosures. The revised frame-work refers primarily to the level of micro prudential regulation, help-ing to raise the resilience of individual banking institutions in periods of stress, but also deals with macro prudential issues, i.e. system wide risks.269 From the Basel Committee’s perspective the two approaches to supervision – micro and macro prudential – are complementary because greater resilience at the individual bank level would reduce the risk of system wide shocks. The focus on both micro and macro objectives shows again that an adjustment of the actors’ mandate is imperative. At the same time, an intensified cooperation and collaboration between BIS and the IMF, FSB and G20 could help avoid or at least diminish re-dundancies.

In order to ensure that the Basel standards contain stronger binding obligations within the Member States than before, the mandate of the Standards Implementation Group (SIG) was broadened in January 2009 and now concentrates on the implementation of the Basel Committee guidance and standards in general.270

In this context of implementation the forward-looking approach of the EU must be taken account of. In July 2011, the EU Commission adopted a new legislative package to strengthen the regulation of the banking sector by replacing the current Capital Requirements Direc-tives (2006/48 and 2006/49) through two different legal acts, i.e. a direc-tive, governing the access to deposit-taking activities, and a regulation, establishing the prudential requirements which institutions will have to respect.271

268 See for detailed analysis, Ohler, see note 2, 26 et seq. 269 BIS, “International Regulatory Framework for Banks (Basel III)”

<http://www.bis.org>. 270 BIS, “About the Basel Committee, Main Sub-Committees, Standard Im-

plementation Group” <http://www.bis.org>. 271 European Commission, “Commission wants stronger and more responsi-

ble Banks in Europe”, 20 July 2011, IP/11/915 <http://ec.europa.eu>.


f. Special Relationship between the European Union and International Financial Institutions

Finally, the special role of the EU, in particular of the ECB and the ESCB as the leading institutions of the common monetary policy in Europe, with regard to its relationship to international financial issues, should be acknowledged.

Since 1957, the Member States of the EU (then: Community) first started to set up a highly integrated customs union, which included a common market with fundamental freedoms, inter alia the free move-ment of capital and payment,272 “based on balanced economic growth and price stability and a highly competitive social market economy”273 and fixed by “hard” law, legally binding for the Member States. Later on, the EU established an economic and monetary union whose cur-rency is the Euro.274 Up to 2011, 17 Member States were authorized to introduce the common currency.275 This process of integration, in par-ticular the creation of a Monetary Union, which is second-to-none worldwide, was based upon the principle of supra nationalization of sovereign powers to original European bodies and institutions.

In the case of the common monetary policy for the Member States whose currency is the Euro,276 the ESCB has been endowed with exclu-sive competences. While the ECB Council is responsible for the general formulation of the monetary policy of the Union,277 the national central banks, as integral parts of the ESCB, “shall act in accordance with the guidelines and instructions of the ECB.”278 Besides shaping the com-mon monetary policy,279 the “ESCB shall contribute to the smooth

272 Arts 63 et seq. TFEU. 273 Article 3 para. 3 Treaty on the European Union (TEU), OJ, 9 May 2008, C

115, 13. 274 Article 3 para. 4 TEU. 275 The Eurosystem, defined in article 282 para. 1 sentence 2 TFEU encom-

passes 17 Member States (Austria, Belgium, Cyprus, Germany, Estonia, Finland, France, Greece, Italy, Ireland, Luxembourg, Malta, Portugal, the Netherlands, Slovakia, Slovenia, Spain).

276 See article 3 para. 1 lit. c.) TFEU. 277 Article 12.1 Protocol No. 4 on the Statute of the European System of Cen-

tral Banks and of the European Central Bank (ESCB Statute), OJ, 9 May 2008, C 115, 230.

278 Article 14.3 ESCB Statute. 279 Article 127 para. 2, 1st indent TFEU.


conduct of policies […] relating to the prudential supervision of credit institutions and the stability of the financial system.”280 With regard to the “prudential supervision of credit institutions and other financial in-stitutions with the exception of insurance undertakings”281 the Council (of the EU) is only authorized to transfer specific tasks to the ECB. Due to this limitation of powers and the strict focus of the independent ECB282 on price stability, the EU built up a separate European System of Financial Supervision (ESFS),283 initiated by the de Larosière-Report in 2009.284 The ESFS was established almost two years later as an inte-grated institutional framework for macro – as well as for micro – pru-dential supervision of the cross-border financial markets within the Un-ion. The ESFS consists of a European Systemic Risk Board (ESRB)285 on the macro prudential level,286 three European Supervisory Authorities (ESAs) – relating to Banking;287 Securities and Markets;288 Insurance

280 Article 127 para. 5, ibid. 281 Article 127 para. 6, ibid. 282 Arts 130 and 282 para. 3, ibid. 283 Cf. Garciano/ Lastra, see note 130, 603 et seq. See for a detailed analysis of

the new European structures M. Lehmann/ C. Manger-Nestler, “Das neue Europäische Finanzaufsichtssystem”, Zeitschrift für Bankrecht und Bank-wirtschaft/Journal of Banking Law and Banking 2011, 2 et seq.

284 The High-Level Group on Financial Supervision in the EU, Report, 25 February 2009 <http://ec.europa.eu>.

285 Regulation (EU) No. 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential over-sight of the financial system and establishing a European Systemic Risk Board, OJ, 15 December 2010, L 331, 1. Council Regulation (EU) No. 1096/2010 of 17 November 2010 conferring specific tasks upon the Euro-pean Central Bank concerning the functioning of the European Systemic Risk Board, OJ, 15 December 2010, L 331, 162.

286 See for the role of the ECB within the ESRB Amtenbrink, see note 128, 38 et seq.; see for the question of “effectiveness of soft law bodies” in respect of ESRB Ferran/ Alexander, see note 168, 751 et seq.

287 Regulation (EU) No. 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Au-thority (European Banking Authority), amending Decision No. 716/2009/EC and repealing Commission Decision 2009/78/EC, OJ, 15 De-cember 2010, L 331, 12.

288 Regulation (EU) No. 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Au-thority (European Securities and Markets Authority), amending Decision


and Occupational Pensions289 – which are responsible for micro pru-dential supervision in cooperation with the supervisory authorities of the Member States, and a Joint Committee of the ESAs.

Although both systems have different objectives, the ESCB as well as the ESFS are organized as self-contained systems, referring to the typical quasi-federal structure of the EU with a uniform decision-making on the supranational level and an obligation forcing the national authorities to implement the mandatory requirements. From the exter-nal perspective of international law, this seems to be a proper solution for an effective collaboration in a multi-level system. However, it must be stressed that such close cooperation will only occur upon the basis of an outstanding level of integration and, as may now be seen, particu-larly in respect of a common currency area, as well as of its current problems, of highly convergent economies in the Member States. Therefore, the success of both systems remains to be seen.

With regard to the subject matter at hand, it is necessary to clarify how the EU is linked to the described international “players” and to what extent the Union is involved in global opinion making for issues such as concerted (re-)acting in crisis situations or global financial sta-bility.

In external relations regarding common currency and monetary pol-icy, the primary law of the Treaty on the Functioning of the European Union reveals an ambiguous picture. Although the ESCB as well as the new ESRB should both contribute to financial stability. “Formal agree-ments on an exchange-rate system for the euro in relation to the curren-cies of third States”290 are assigned solely to the power of the Member States, assembled in the Council. What seems like a “dilemma”, at a first glance, is not so hard to handle in practice. Moreover, it is a typical is-sue of appropriate allocation of rights and duties between Central

No. 716/2009/EC and repealing Commission Decision 2009/77/EC, OJ, L 331, 15 December 2010, 84.

289 Regulation (EU) No. 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Au-thority (European Insurance and Occupational Pensions Authority), amending Decision No. 716/2009/EC and repealing Commission Decision 2009/79/EC, OJ, 15 December 2010, L 331, 48.

290 See article 219 para. 1 TFEU.


Banks and states because the main task of Central Banks is monetary policy while their involvement in exchange-rate policy is minimal.291

Regarding the involvement of the EU in international financial insti-tutions, it must be observed that the ECB has not yet “arrived” in the global concert. This derives from the fact that in the majority of inter-national governmental organizations,292 only states shall be entitled to membership. Therefore, neither the ECB nor the EU or its institutional bodies possess a “full” membership, whereas this privilege is reserved to all Member States of the Euro system.293 In general, a “double member-ship” of states, being a member of the EU as well as of the IMF, is not excluded explicitly but it would lead to the problem that the obligations entered into, towards each institution, would be different so that there would be a need for conflict resolution. Although the ECB possesses an observer status in the IMF,294 its involvement in the Fund is inade-quately organized and thus hinders rather than helps an effective coop-eration. This is due to the fact that a general exchange arrangement re-garding the Euro,295 which is a currency accepted by the IMF,296 could only be agreed upon by the Euro Member States themselves, not by the ECB, notwithstanding it is the exclusive authority for issuing the Euro.297

In fact, the European countries possess a strong factual impact on global financial issues, as the Bretton Woods conference has already

291 C. Zilioli/ M. Selmayr, “The external relations of the euro area: Legal as-

pects”, CML Rev. 36 (1999), 273 et seq. (336 et seq.). 292 An exception makes the WTO, stated in Article XI para. 1 WTO Agree-

ment. Cf. Ruffert/ Walter, see note 10, marginal number 117; Krajewski, see note 172, marginal numbers 217 et seq.; generally K.E. Jorgensen (ed.), The European Union and International Organisations, 2008.

293 Article II Sections 1, 2 of the IMF Agreement. See for details D.C. Horng, “The ECB’s membership in the IMF: Legal approaches to constitutional challenges”, ELJ 11 (2005), 802 et seq.

294 Cf. IMF Decision No. 12925-(03/1), 27 December 2002, as amended by Decision Nos 13414-(05/01), 23 December 2004, 13612-(05/108), 22 De-cember 2005, and 14517-(10/1), 5 January 2010, Selected Decisions and Se-lected Documents, 35th issue, 31 December 2010, 1 et seq. (698 et seq.). See also Khan, see note 34.

295 Admissible under article IV Section 2 of the IMF Agreement. Cf. C.R. Henning, “Regional Arrangements and the IMF”, September 2005 <http://www.iie.com>.

296 IMF “SDR Valuation” <http://www.imf.org>. 297 Article 128 TFEU.


shown. Already represented by staff in international governmental or-ganizations, they, in particular, have maintained the right to nominate the Managing Director of the IMF while the United States designates the President of the World Bank, which is just a tradition followed, but is not explicitly stated in the IMF Agreement.298 But the choice of top personnel is right now more pressing than ever before. The nomination of the former French Finance Minister, Christine Lagarde, who is a well-known advocate of the supranational integration process, as Man-aging Director of the IMF, replacing Dominique Strauss-Kahn, has been most eagerly anticipated.299 Another prominent example and vice versa, the Chairman of the FSB, Mario Draghi (Italy), might be confronted with enormous stability problems of the Euro zone when he takes over as President of the ECB in November 2011.300

IV. Summary

Before and after the beginning of the last crisis, the blueprint of the global financial architecture is somewhat discouraging. It is unquestion-able that the global financial system is at the commencement of an on-going process of fundamental change, but it is too soon to evaluate whether the “reforms” agreed upon globally shall bear fruits. There-fore, the main findings should be summarized as follows: (1) less coexistence but more collaboration (2) structural reforms in governance, and (3) justification and codification in a rule-based system.

The plurality of actors leads at the very moment to a coexistence of institutions, which vary in their grade of legal solidification from in-formal network structures (G20) and personalized cooperation (FSB) to the United Nations as such and the IMF in particular; moreover, enti-ties were established at the multilateral (e.g. BIS) as well as at the supra-national level (e.g. ECB, ESRB).

Avoiding redundancies and using the comparative advantages of the expertise, this parallelism has to be replaced by a more structured coop-

298 Lowenfeld, see note 23, 577. 299 “IMF Executive Board Selects Christine Lagarde as Managing Director”,

Press Release No. 11/259, 28 June 2011 <http://www.imf.org>. 300 European Council, Cover Note, 24 June 2011, EUCO 23/11, 13

<http://www.consilium.europa.eu>.


eration and an intensified collaboration, e.g. by an openness to dialogue combined with a better and swifter exchange of information. It is of outstanding importance that a consolidation process should lead to cer-tain gubernative or maybe hierarchical structures. Either by linking the powerful G20 and the original actors being responsible for global fi-nancial system issues, like the IMF and the BIS as well as the renewed FSB. Or, with regard to the existing structures, the United Nations should be willing to redesign ECOSOC, in particular by extending its mandate to that of a Global Economic Coordination Council.

These necessities underscore the importance of creating explicitly defined mandates, focusing on global financial stability as the main ob-jective, as well as essential governance reforms for establishing more ef-fective multilateral institutions. The road towards these targets must be tackled by a justification and codification of “guidance”, “principles” and “declarations”. In other words: the principle-based approach of soft law has to be shifted more and more towards a rule-oriented and obligation-based system which would be transnationally applicable.

Finally, it can be summarized that some lessons have been learned, but there are still many more to be learned in the future. Hopefully, there is a truth in the saying that times of crisis will always be times for recovery too.

Medical War Crimes

Sigrid Mehring*



I. Introduction II. Medical War Crimes

1. Medical Grave Breaches and Medical War Crimes 2. Medical Aspects of the Classic Grave Breaches

III. Medical War Crimes in International Criminal Law 1. The ICTY and ICTR Statutes 2. The Rome Statute

IV. National Implementation: The German Example V. The Prosecution of Medical War Crimes

1. The Doctors’ Trial of 1947 2. The Ntakirutimana Trial of 2003 3. General Observations concerning Prosecution

VI. Possible Defenses to Medical War Crimes 1. Superior Orders 2. Mistake of Fact 3. Necessity and Duress 4. Consent of the Patient

VII. Conclusion

Mehring, Medical War Crimes 231

I. Introduction

Physicians have always played an important role in armed conflicts be-ing the first to treat wounded and sick combatants, prisoners of war, and civilians. This makes them an important, essential category of ac-tors in armed conflicts, a role which is reflected in the laws of war.1 In granting first aid and emergency care, physicians can fulfill a further role by reporting on human rights abuses or violations of international humanitarian law.2 They are thus in a privileged position to watch over the rights of the victims of armed conflicts. However, their position is also susceptible to abuse. Physicians have always used armed conflicts for their own gain, to further their medical skills or to use their skills to enhance military gains or further medical science.

Recently, attention has been drawn to the question of the involve-ment of physicians in coercive interrogations and ill-treatment of de-tained persons.3 In 2009, a confidential Report by the International Committee of the Red Cross (ICRC) on the conditions of detention of

* The author would like to thank Julia Gebhard and Marie von Engelhardt

for their invaluable comments and suggestions. 1 M. Torrelli, “La Protection du Médecin dans les Conflits Armés”, in: C.

Swinarski, Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, 1984, 582.

2 A recent example highlights this important role: with their insider-report of the 2008/2009 Gaza conflict, the Norwegian physicians Mads Gilbert and Erik Fosse were among the first eyewitnesses to provide an account of the events. They found violations of the neutral status of the Red Cross by the conflict parties and reported on wounds from white phosphorus and DIME-bombs. M. Gilbert/ E. Fosse, “Inside Gaza’s Al-Shifa Hospital”, The Lancet 373 (2009), 200-202. Although so-called “focused lethal muni-tion” is not prohibited under international disarmament agreements, ex-perts have voiced concerns about its effects. UN Report of the Secretary-General on the Protection of Civilians in Armed Conflict of 29 May 2009, Doc. S/2009/277, para. 36; see also UN Report of the United Nations Fact-Finding Mission on the Gaza Conflict (Goldstein Report) of 25 September 2009, Doc. A/HRC/12/48, paras 907 – 908.

3 The term ill-treatment is used here to refer to mistreatment that may amount to cruel, inhuman or degrading treatment. In no way should the se-riousness of such treatment be denied by the use of this term.


high-value detainees in CIA custody was leaked to the media.4 As well as detailing with the experiences of the fourteen detainees while in CIA custody which, in many cases, amounted to cruel, inhuman and/or de-grading treatment and, in some cases, to torture, the ICRC in the Re-port clearly stated its concern about the involvement of members of the medical profession.5 Discussing the role of physicians in coercive inter-rogations, the ICRC concludes that,

“The alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment constituted a gross breach of medical ethics and, in some cases, amounted to participation in torture and/or cruel, inhuman or degrading treatment.”6 It was considered especially problematic where the physicians’ in-

volvement in interrogations was integral to and complicit in ill-treatment. Others, for example Physicians for Human Rights, have clas-sified the behavior of the physicians in Guantánamo Bay as torture. Physicians for Human Rights went as far as to claim that the physicians had conducted experiments so as to find the most efficient methods of torture.7

4 International Committee of the Red Cross, Regional Delegation for the

United States and Canada, ICRC Report on the Treatment of Fourteen “High-Value Detainees” in CIA Custody, WAS 07/76, 14 February 2007. The Report does not address mistreatment in Guantánamo Bay.

5 For example, “For certain methods, notably suffocation by water, the health personnel were allegedly directly participating in the infliction of the ill-treatment. In one case, it was alleged that health personnel actively monitored a detainee’s oxygen saturation using what, from the description of the detainee of a device placed over the finger, appeared to be a pulse oxymeter”, see note 4, 23.

6 See note 4, 26 – 27. In more detail, the ICRC states that “[a]s such, the in-terrogation process is contrary to international law and the participation of health personnel in such a process is contrary to international standards of medical ethics. In the case of the alleged participation of health personnel in the detention and interrogation of the fourteen detainees, their primary purpose appears to have been to serve the interrogation process, and not the patient. In so doing the health personnel have condoned, and partici-pated in ill-treatment”, see note 4, 24.

7 Physicians for Human Rights, Experiments in Torture: Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program, June 2010.


As the legal status of the persons detained during armed conflicts and subjected to interrogations is at times disputed,8 the consequences for the perpetrator of ill-treatment, especially for the physicians in-volved, are not clear. Under human rights law, the alleged ill-treatment of detainees in CIA custody, later on also in Guantánamo Bay,9 by state officials would be a violation of the right to be free from torture and cruel, inhuman and/or degrading treatment or punishment.10 However, when carried out on protected persons during an armed conflict, the al-leged involvement of physicians in harmful interrogations is also a vio-lation of international humanitarian law.11 This conclusion leads to dif-ferent consequences; consequences that will be discussed in this article on explicitly medical war crimes.

Medical grave breaches are introduced to the system of Geneva Law in article 11 of Additional Protocol I (AP I), although the concept of explicitly “medical” war crimes is much older.

8 When in doubt, all persons detained in armed conflict should be granted

the benefit of treatment as prisoners of war, as established in article 5 (2) GC III. Furthermore, any person having fallen into the hands of an adverse party enjoys the general protection of common article 3 and article 75 AP I. The debate on the combatant status of persons detained during the so-called “war on terror” demonstrates the controversy surrounding the legal status of persons detained. See for example, G.H. Aldrich, “The Taliban, Al Qaeda, and the Determination of Illegal Combatants”, AJIL 96 (2002), 891 - 898; M. Sassòli, “The Status of Persons held in Guantánamo under International Humanitarian Law”, Journal of International Criminal Justice 2 (2004), 96 - 106; J.C. Yoo, “The Status of Soldiers and Terrorists under the Geneva Conventions”, Chinese Journal of International Law 3 (2004), 135 - 150; M. Sassòli, “Combatants”, Max Planck Encyclopedia of Public International Law, 2008.

9 See, for example, P.J. Sands, Torture Team - Deception, Cruelty and the Compromise of Law, 2008.

10 The relevant international human rights norms can be found in article 7 ICCPR, article 5 UDHR, and the Convention against Torture (CAT).

11 For international armed conflicts article 12 GC I and GC II, article 17 GC III, article 32 GC IV, and arts 11 and 75 (2)(ii) and (iv) AP I, and for non-international armed conflicts common article 3 to the Geneva Conventions and article 4 (2)(a) AP II prohibit torture and call for humane treatment. Cruel, inhuman and/or degrading treatment is not explicitly prohibited though inhuman treatment is one of the “classic” grave breaches. Interna-tional humanitarian law also classifies torture of protected persons a grave breach of the Conventions in arts 50 GC I, 51 GC II, 130 GC III, and 147 GC IV.


The term “medical war crime” was coined by United States investi-gators after World War II.12 It had its peak in the aftermath of World War II when physicians were prosecuted for crimes carried out in the name of medicine within Germany and in concentration camps abroad. From then on, the concept of medical war crimes as developed for phy-sicians in the German Reich lost its momentum. Generally, to be classi-fied as a medical war crime, there has to be a willful act that seriously endangers the health or integrity of a detained person who is affiliated with the adversary, committed by physicians in carrying out their medi-cal duties during an armed conflict. However, medical war crimes have been mostly forgotten in the international prosecution of war crimes. Nonetheless, the concept of medical war crimes is worth analyzing to determine its suitability to address the involvement of physicians in in-terrogations that violate international humanitarian law in recent con-flicts. It would provide a legal framework for the prosecution of crimes committed by physicians during armed conflict.

This article will thus re-introduce the concept of medical grave breaches and medical war crimes, examine its implementation on an in-ternational level, and analyze its application in practice.13 For this, two international prosecutions of physicians for their actions during armed conflicts will provide an illustration: the Doctors’ Trial before the Nur-emberg Military Tribunal and the Ntakirutimana Trial before the In-ternational Criminal Tribunal for Rwanda. The objective of the exami-nation is, first, to discover how the concept of medical war crimes was introduced in an international prosecution, and, second, to assess the probability of future prosecutions for such crimes.14

12 P.J. Weindling, Nazi Medicine and the Nuremberg Trials - From Medical

War Crimes to Informed Consent, 2004, 1. 13 Medical aspects of crimes against humanity will be illuminated when rele-

vant. The emphasis is on medical war crimes for the explicit basis for such crimes in article 11 AP I.

14 It should be noted that the article’s aim is a general discussion of the ques-tion, not to provide specific solutions to the question of physicians in Guantánamo Bay.


II. Medical War Crimes

1. Medical Grave Breaches and Medical War Crimes

The development of the criminalization of medical war crimes was prompted by the Doctors’ Trial before the Nuremberg Military Tribu-nal in 1946 where physicians were tried for medical crimes committed during the war. Medical war crimes can be defined as willful acts seri-ously endangering the health or integrity of a detained person who is affiliated with the adversary committed by physicians in carrying out their medical duties during an armed conflict. Although the concept is modeled after the medical grave breach introduced in article 11 of AP I it should extend to non-international armed conflicts.15 Article 11 (4) AP I introduces medical grave breaches.16 Pursuant to article 11 (4) AP I medical acts constitute grave breaches when they (a.) fall under the prohibited acts of the second paragraph or constitute violations of the requirements in the first paragraph, (b.) are committed by a willful act or omission, and (c.) seriously endanger the physical or mental health or integrity of (d.) a protected person in the power of an adverse party.17

Prohibited acts are, on the one hand, those enumerated in article 11 (2) AP I, namely physical mutilations, medical or scientific experiments, or the removal of tissue or organs for transplantation even with the consent of the person.18 However, the paragraph merely provides ex-

15 On war crimes in non-international armed conflicts in general, see E. La

Haye, War Crimes in Internal Armed Conflicts, 2008. 16 The classification as grave breaches was neither initially envisaged (see

original draft in Official Records of the Diplomatic Conference on the Re-affirmation and Development of International Humanitarian Law applica-ble in Armed Conflicts (Conférence Diplomatique de Droit Humanitaire (CDDH)) (O. R.), Part III, 6), nor introduced as a written amendment (see O.R. Part III, Table of Amendments to the Draft Additional Protocol, 60 – 62) but rather introduced in the last phase of the drafting by an Australian oral amendment, in 1977. See O.R. Part XI, CDDH/II/SR.29, 294; CDDH/II/SR.30, 305.

17 See also Y. Sandoz et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, para. 3474.

18 The principle of informed consent is a specification of the principle of autonomy – one of the four generally accepted principles of biomedical ethics. According to Beauchamp and Childress, the four principles of bio-medical ethics are beneficence, non-maleficence, autonomy and justice. For


amples of acts that are prohibited.19 Generally all medical procedures that do not meet the cumulative requirements of article 11 (1) AP I are prohibited.20 Article 11 (1) AP I requires that a procedure has to be in accordance with generally accepted medical standards and indicated by the state of health of the person concerned.

A clarification in the same paragraph details that generally accepted medical standards are such standards that “would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty.” The party conducting the procedure, the civilian or military medical personnel, should treat protected persons as they would treat their own nationals who are not deprived of liberty in similar circumstances.

Yet, not all medical procedures prohibited by article 11 (1) AP I also give rise to a grave breach. In order for an act or omission to be a grave breach, it additionally needs to have been committed willfully and have seriously endangered the health and integrity of the patient. To actually be considered a serious danger, the effect of the medical procedure must affect the person treated in a “long-lasting or crucial” manner.21 Usu-ally, medical procedures without a therapeutic purpose meet these crite-ria. Following the wording of article 11 (4) AP I which refers to a “wil-ful act or omission”(emphasis added), the relevant mens rea for such acts is willfulness. This should entail willfulness or recklessness but not simple neglect.22 The indictment in the Doctors’ Trial, the mens rea was construed as “unlawfulness, willingness and knowledge.” This reso-

a detailed discussion, consult T.L. Beauchamp/ J.F. Childress, Principles of Biomedical Ethics, 6th edition, 2009.

19 L. Moir, “Conduct of Hostilities - War Crimes”, in: J. Doria et al., The Le-gal Regime of the International Criminal Court: Essays in Honour of Pro-fessor Igor Blishchenko, 2009, 511.

20 The ICRC Study on Customary International Humanitarian Law has found that “[m]utilation, medical or scientific experiments or any other medical procedure not indicated by the state of health of the person con-cerned and not consistent with generally accepted medical standards are prohibited”, Rule 92 in J.M. Henckaerts et al., Customary International Humanitarian Law, Vol. 1: Rules, 2005, 320.

21 Sandoz et al., see note 17, para. 3474. 22 Id., see note 17, para. 493.


nates in the requirement of willfulness for a medical grave breach of ar-ticle 11 (4) AP I.23

Article 11 (4) AP I does not limit the possible perpetrators of medi-cal grave breaches to physicians but generally medical grave breaches are committed by persons who carry out medical procedures. In most cases, a violation of article 11 (4) AP I will therefore bring physicians within the ambit of criminal prosecution.24

Although article 11 AP I offers protection for all detained persons,25 and generally also applies to a party’s own nationals, the denial of the provision’s protection regarding a party’s own nationals, even if de-prived of their liberty, cannot result in a grave breach.26 Such crimes are usually prosecuted as crimes against humanity.27 Where the scope of protection of article 11 (1) AP I includes “[persons] who are interned, detained or otherwise deprived of liberty as a result of a situation re-ferred to in Article 1”, this was omitted in article 11 (4) AP I. Accord-ingly, a medical violation is prosecutable as a grave breach only if the victim is a person “in the power of a party other than the one on which he depends.”28

This restriction was included to ensure the sovereignty of parties to a conflict over their own nationals.29 It is compatible with article 85 (1)

23 Count 2 of the Indictment in United States Military Tribunal I, United

States of America v. Karl Brandt, et al. [“The Doctors’ Trial”], Trials of War Criminals Vol. I & II, Judgment (19 August 1947).

24 A. Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, 1982, 34 – 35.

25 F. Kalshoven/ L. Zegveld, Constraints on the Waging of War - an Introduc-tion to International Humanitarian Law, 3rd edition, 2001, 118.

26 W.A. Solf, “Development of the Protection of the Wounded, Sick and Shipwrecked under the Protocols Additional to the 1949 Geneva Conven-tions”, in: Swinarski, see note 1, 242.

27 As was the case in some prosecutions after World War II, for example, C.F. Rüter, DDR-Justiz und NS-Verbrechen - Sammlung Ostdeutscher Straf-urteile wegen Nationalsozialistischer Tötungsverbrechen, 2002, Lfd. Nr. 1760. See also ICTR Prosecutor v. Elizaphan and Gérard Ntakirutimana, Trial Chamber Judgment of 21 February 2003.

28 The paragraph expressly does not use the nationality category to avoid definitional problems.

29 Sandoz et al., see note 17, para. 493 (b).


AP I concerning grave breaches.30 The chosen formulation avoids the controversial nationality issue. A purely textual interpretation provid-ing protection according to nationality would give a rather restrictive result; in modern wars, ethnicity or affiliation is more often the basis for allegiance than nationality.31 The Rome Statute, for example, deter-mines that a perpetrator does not have to know the nationality of his victim; solely that he belongs to the adverse party.32 Hence, a physi-cian’s act can incur prosecution when he treats a patient who is not of the same party to the conflict as he himself and he knows this. This broad interpretation of civilian protected persons is within the object and purpose of the drafters of the Geneva Conventions. Nonetheless, care should be taken not to broaden the concept beyond practical appli-cability.

Medical grave breaches should be treated equally to all other grave breaches of the Geneva system as the concise wording of article 85 (3) AP I indicates.33 When implemented and criminalized by Member States, they can be prosecuted as medical war crimes. Whereas medical grave breaches under article 11 (4) AP I are limited to violations com-mitted in international armed conflicts, (medical) war crimes in general

30 M. Bothe et al., New Rules for Victims of Armed Conflicts - Commentary

on the two 1977 Protocols Additional to the Geneva Conventions of 1949, 1982, 115.

31 Article 4 GC IV still used the nationality criterion for determining who should be categorized as “civilian”. It thereby respected states’ sovereignty over their own nationals by protecting those civilians in the hands of a party of which they were not a national. O.M. Uhler/ H. Coursier, Com-mentary to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1958, 46 – 47. Ever since, a teleological approach whereby nationality or affiliation is irrelevant, as taken by the ICTY Ap-peals Chamber in the Tadiü Judgment, has found resonance. ICTY Prosecu-tor v. Dusko Tadiü a.k.a. “Dule”, Appeals Chamber Judgment of 15 July 1999, paras 163 – 166. Meron thinks “nationality” should at times be con-strued as “persons in the hands of an adversary.” T. Meron, “War Crimes Law for the Twenty-First Century”, in: M.N. Schmitt/ L.C. Green, The Law of Armed Conflict: Into the Next Millennium, 1998, 329. Also reject-ing an “allegiance approach”, see M. Sassòli/ L.M. Olson, “The judgment of the ICTY Appeals Chamber on the merits in the Tadiü case”, Int’l Rev. of the Red Cross 82 (2000), 733 et seq.

32 Concerning article 8 (2)(a)(i): Elements of Crimes, Doc. ICC-ASP/1/3 (part II-B) of 9 September 2002, 14.

33 The acts constituting grave breaches listed under article 85 (3) AP I are “In addition to the grave breaches defined in Article 11 […]”.


can be committed in both international and non-international armed conflicts.34 Unwarranted medical procedures are also prohibited in arti-cle 5 (2)(e) AP II. The paragraph determines that persons detained or interned “for reasons related to the armed conflict”35 should not be subjected to an unjustified act or omission that may endanger their physical or mental health and integrity. Acts which are not justified by the health of the person treated and which are not consistent with gen-erally accepted medical standards “applied to free persons under similar medical circumstances” are prohibited.

However, Additional Protocol II does not determine what conse-quences a violation of the prohibition has. The ICRC Commentary states that: “[paragraph] 2 may be considered as a sort of guideline which may be developed, depending on the circumstances and the goodwill of those responsible; the few rules that are given serve as illus-trations and should not be interpreted restrictively or rigidly.”36 The system of grave breaches is thus limited to international armed con-flicts, although violations of provisions of protection in non-international armed conflicts can nowadays also lead to prosecution.37 This approach is supported by the Rome Statute which equally crimi-nalizes mutilations and medical and scientific experiments committed in non-international armed conflicts. The requirements for medical grave breaches should, then apply analogously to medical war crimes com-mitted during non-international armed conflicts with the difference of course being in the form of armed conflicts.38

34 ICTY Prosecutor v. Dusko Tadiü a.k.a. “Dule”, Decision on the Defence

Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, paras 81 – 84. This is in line with the literature, see C. Kress, “War Crimes com-mitted in Non-International Armed Conflict and the Emerging System of International Criminal Justice”, Isr. Y. B. Hum. Rts 30 (2000), 103 et seq. (107 – 109); L. Moir, “Particular Issues regarding War Crimes in Internal Armed Conflicts”, in: Doria et al., see note 19, 612 – 614. Others would even apply the grave breaches regime mutatis mutandi to non-international armed conflicts see Tadiü Interlocutory Appeal, Separate Opinion of Judge Abi-Saab, para. IV.

35 Article 5 (1) AP II. 36 Sandoz et al., see note 17, para. 4581. See also J. Kleffner, “Protection of the

Wounded, Sick and Shipwrecked”, in: D. Fleck, The Handbook of Interna-tional Humanitarian Law, 2008, para. 606.

37 La Haye, see note 15, 121 et seq. 38 The concept of protected persons is not recognized as such in non-

international armed conflicts. Instead protected are “persons taking no ac-


A medical war crime has to have a nexus with an armed conflict, whether non-international or international. “[T]he nexus requirement serves to exclude from the realm of the laws of war purely random or isolated criminal occurrences which do not constitute war crimes.”39 The fact that there is an armed conflict must thus have played a role in the commission of the crime.40 The perpetrator does not necessarily need to have a close relationship with one of the parties to the conflict but the act that was committed needs to have something to do with the armed conflict.41 Additionally, a perpetrator must have been aware of the factual circumstances of an armed conflict, whether non-international or international.42 Whether it can be determined with suf-ficient certainty if a perpetrator was aware that his actions constituted a grave breach is questionable. Therefore, the burden of proof for this re-quirement should lie with the prosecution.43 If a violation of interna-tional humanitarian law that meets the criteria of a medical war crime has been committed, irrespective of the sort of armed conflict it should always lead to prosecution.

tive part in the hostilities” pursuant to common article 3 to the Geneva Conventions. This is also the definition used in article 8 (2)(c) Rome Stat-ute regarding the victims of war crimes in non-international armed con-flicts. It should apply to victims of medical war crimes.

39 G. Mettraux, International Crimes and the ad hoc Tribunals, 2005, 39. 40 A. Cassese, International Criminal Law, 2003, 49. For ICTY Jurisprudence

see Tadiü Interlocutory Appeal, paras 81 – 84. See also ICTY Prosecutor v. Zlatko Aleksovski, Appeals Chamber Judgment of 24 March 2000, para. 80; ICTY Prosecutor v. Tihomir Blaškiü, Appeals Chamber Judgment of 29 July 2004, para. 170; ICTY Prosecutor v. Mladen Naletiliü (a.k.a. Tuta) and Vinko Martinoviü (a.k.a. Štela), Appeals Chamber Judgment of 3 May 2006, para. 110; ICTY Prosecutor v. Radoslav Brÿanin, Appeals Chamber Judgment of 3 April 2007, para. 256.

41 La Haye, see note 15, 323. 42 K. Dörmann, Elements of War Crimes under the Rome Statute of the In-

ternational Criminal Court - Sources and Commentary, 1st edition, 2002, 18 – 28. This analysis relies heavily on the ICTY jurisprudence, e.g. ICTY Prosecutor v. Dario Kordiü and Mario ýerkez, Appeals Chamber Judgment of 17 December 2004, para. 311.

43 As is the case before the ICTY, see Naletiliü and Martinoviü Appeal Judg-ment, paras 118 – 121.


2. Medical Aspects of the Classic Grave Breaches

Arts 50 GC I, 51 GC II, 130 GC III, and 147 GC IV exhaustively enu-merate violations of the Conventions considered serious enough to merit universal prosecution.44 The “classic” grave breaches are “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health”45 of the protected persons by an individual in the respective Convention. All these crimes can also be committed by a physician in a medical con-text. For a medical act or procedure by a physician to be prosecuted as a grave breach of the Conventions, the act must also meet the require-ments of the grave breaches under the Conventions.

“Willful killing” refers to killing both by commission as well as omission, irrespective of whether the victim belongs to the adverse party or not, as long as he was a protected person.46 The word “willful” denotes an intention on the side of the perpetrator to cause the death of the victim or at least a dolus eventualis.47 Examples of willful killing by omission are the intentional starvation of persons under the medical su-pervision of physicians or the intentional denial of medical care.48 When exactly a person was acting with the relevant intent and when a killing is not merely a consequence of the armed conflict but willfully carried out, depends on the circumstances.49

Because a classification as torture within the grave breaches regime depends on the intention behind the act and not “the mere assault on

44 H. McCoubrey, “War Crimes: the Criminal Jurisprudence of Armed Con-

flict”, Rev. Dr. Mil. Dr. Guerre 31 (1992), 168 et seq. (176). 45 Each Geneva Convention contains some additional special grave breaches.

These are of little importance to the examination of medical grave breaches and shall not be further discussed.

46 J. Pictet, La Convention de Genève pour l'Amélioration du sort des Blessés, des Malades et des Naufragés des Forces Armées sur Mer, 1959, 271.

47 Dolus eventualis or recklessness means that the perpetrator knowingly acts in a way that risks the death of the protected person. Cassese, see note 40, 57 – 58.

48 For an example of willful killing by omission (willful neglect) see Military Court for the Trial of War Criminals, Trial of Heinrich Gerike, Georg Hessling, Werner Noth, Hermann Müller, Gustav Claus, Richard Dmmerich, Fritz Flint, and Valentina Bilien [“The Velpke Baby Home Trial”], Vol. VII, Judgment of 3 April 1946.

49 Uhler/ Coursier, see note 31, 597.


the physical or moral integrity of a person”,50 a physician would only be prosecutable for torture as a grave breach if he assaulted or assisted in the assault of a protected person with the intention to extract infor-mation or a confession of sorts. The severity of the pain does not have to be excessive, cause permanent injury, or leave visible signs.51 Torture is, of course, also prohibited by the Convention against Torture.52 Whether or not a medical procedure fulfills the severity requirement is a “fact-dependent inquiry.”53 There are some indicators of torture such as electric shocks, prolonged denial of medical assistance, and simulated executions which can all have a medical element.54

A grave breach often mentioned together with torture is “inhuman treatment”. The principle of humane treatment55 is a “guiding theme”56 or “cornerstone of all four Conventions.”.57 When providing medical care during armed conflicts, physicians should at all times treat patients humanely. Inhuman treatment involves intentional acts that violate a protected person’s human dignity – beyond his physical and mental in-tegrity – and are committed with the intention of “leveling the victim with an animal.”58 The required intent was not explicated, as is the case

50 Uhler/ Coursier, see note 31, 598; Pictet, see note 46, 272. 51 ICTY Prosecutor v. Radoslav Brÿanin, Trial Chamber Judgment of 1 Sep-

tember 2004, paras 483 – 484. 52 The definition of torture can be found in article 1 of the Convention

against Torture and other Cruel, Inhuman or Degrading Treatment or Pun-ishment, 10 December 1984, ILM 23 (1984), 1027 et seq.

53 Naletiliü and Martinoviü Appeal Judgment, para. 299. 54 The Trial Chamber in ýelebiüi clearly states that it does not intend to ex-

haustively list acts that constitute torture. ICTY Prosecutor v. Zdravko Muciü, Hazim Deliü, Esad Landžo and Zejnil Delaliü (ýelebiüi), Trial Chamber Judgment of 16 November 1998, paras 467 – 469. Its enumeration of indicators of torture is based on Report by the Special Rapporteur, Mr. P. Kooijmans, appointed pursuant to Commission on Human Rights resolution 1985/33, Doc. E/CN.4/1986/15 of 19 February 1986, para. 119.

55 As established in arts 12 GC I and II, 13 GC III, and 27 and 32 GC IV, as well as article 75 AP I.

56 R. Wolfrum/ D. Fleck, “Enforcement of International Humanitarian Law”, in: D. Fleck, The Handbook of International Humanitarian Law, 2008, para. 1410 (6).

57 ýelebiüi Trial Judgment, see note 54, para. 532. 58 Pictet, see note 46, 273. Reference is made to the Commentary to GC II, as

the Commentary to GC I classified torture, inhuman treatment and bio-logical experiments as “clear enough in themselves and [needing] no de-


with willful killing. The requisite intent should, however, still be the “willingness and knowledge” to subject a person to inhuman treatment. This was the mens rea requirement that was used in the Doctors’ Trial.59 The prohibition of inhuman treatment is often used as a residual cate-gory for criminal acts that do not fall under the other provisions.60

Biological experiments are explicitly and separately named as a form of inhuman treatment. This proves the emphasis placed on the prohibi-tion of experiments on protected persons in the system of the Conven-tions.61 Physicians are allowed to use new therapeutic methods if such treatment is medically justified, for the amelioration of the health of a patient, and the patient, if competent, has provided his informed con-sent.62 Whether something is a justified new therapeutic method or whether it is purely experimental may be controversial.63 A physician should thus always conduct a careful analysis as to whether a new pro-cedure is considered humane. The informed consent of a patient to the procedure is an important element of such an analysis although consent to an inhuman procedure can never justify said procedure.

Next to the explicit medical grave breach, physicians can thus also be involved in the commission of the classic grave breaches. Whether physicians should be prosecuted on the basis of the classic grave breaches or whether they should rather be specifically prosecuted for a medical grave breach should be decided on a case-by-case basis.

III. Medical War Crimes in International Criminal Law

Considering that medical grave breaches entail the same responsibilities for State Parties’ as the conventional grave breaches of the Geneva Con-ventions and AP I, the provision in article 11 (4) AP I should be imple-mented in criminal legislations. The necessary criminalization of medi-

tailed comment”. J. Pictet, La Convention de Genève pour l'Amélioration du sort des Blessés et des Malades dans les Forces Armées en Campagne, 1952, 418.

59 The Doctors’ Trial will be analyzed below. 60 G. Boas et al., Elements of Crimes under International Law, 2008, 272. 61 See comparatively article 12 GC I and II, article 13 GC III, and article 32

GC IV. 62 These requirements are taken from article 13 GC III. The Commentary re-

fers to the requirements in article 12 GC II. Pictet, see note 46, 273. 63 Wolfrum/ Fleck, see note 56, para. 1410 (7).


cal grave breaches can be on a national level, to facilitate national prose-cution, on an international level, e.g. in the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) or for Rwanda (ICTR) or the International Criminal Court (ICC), or, if the relevant state practice and opinio juris exist, criminalization can be inferred from customary international law.64 The criminalization of medical grave breaches, but also the penalization of medical war crimes committed in non-international armed conflicts reveals information concerning the interpretation of such crimes. Questions to be answered are whether medical grave breaches are attributed equal importance to other breaches, whether the criminalization includes the context of non-international armed conflicts, and whether the implementation provides some interpretation or analysis relevant to make the concept most prac-ticable.

1. The ICTY and ICTR Statutes

Neither the Statute for the ICTY nor that of the ICTR explicitly crimi-nalizes medical grave breaches. Article 2 ICTY Statute provides juris-diction over the grave breaches of the Geneva Conventions and AP I, namely willful killing, torture or inhuman treatment, including biologi-cal experiments, and willfully causing great suffering or serious injury to body or health. Other breaches of the Geneva Conventions, serious violations of Hague Law, and certain (grave) breaches under AP I are enumerated in article 3 ICTY Statute dealing with “violations of the laws or customs of war”. These concern the means and methods of war-fare. The Appeals Chamber in Tadiü established that they can also be committed in non-international armed conflicts.65 The medical grave breach of article 11 (4) AP I was included neither in article 2 nor in arti-cle 3 ICTY Statute. Medical war crimes can thus only be prosecuted as conventional grave breaches, such as killing, torture or inhuman treat-ment. Most probably, medical grave breaches were not included because these crimes were not considered as being relevant in the conflict in the former Yugoslavia.66

64 Cassese, see note 40, 50 – 51. 65 Tadiü Interlocutory Appeal, paras 128 – 137. 66 The ýelebiüi Indictment charged the accused with the willful killing of per-

sons as a grave breach pursuant to article 2 (a) of the ICTY Statute and as a violation of the laws and customs of war pursuant to article 3 of the ICTY


The ICTR Statute determines that the ICTR has no jurisdiction over grave breaches of the Geneva Conventions and limits the jurisdiction to war crimes committed during a non-international armed conflict only. Article 4 ICTR Statute criminalizes violations of common article 3 Ge-neva Conventions and violations of AP II, including under sub-paragraph (a) cruel treatment such as torture, mutilation or any form of corporal punishment. Next to outrages upon personal dignity that could be committed in a medical context, this is the only remotely medical crime prosecutable under the ICTR Statute.67

2. The Rome Statute

Article 8 of the Rome Statute enumerates all war crimes the ICC has ju-risdiction over.68 Article 8 (2)(a) Rome Statute sets out the grave breaches of the Geneva Conventions as war crimes punishable by the ICC, especially when “committed as part of a plan or policy or as a part

Statute which correlates to article 3 (1)(a) Geneva Conventions by denying medical care. ýelebiüi Indictment, para. 18. None of the accused were phy-sicians, as was Ntakirutimana, and the denial of medical care was consid-ered part of the crime of willful killing. Neither the Trial nor the Appeals Chamber of the ICTY in their judgments elaborated on this aspect sepa-rately.

67 Under article 3 of the Special Court for Sierra Leone Statute, mutilation as a form of violence to life, health and physical or mental well-being of per-sons is considered a serious violation of article 3 common to the Geneva Conventions, and of Additional Protocol II. There have been no prosecu-tions on this basis. The Law on the Establishment of the Extraordinary Chambers for Cambodia, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006) does not specifically mention medi-cal grave breaches or war crimes. Its article 6 omits experiments as a grave breach of the Geneva Conventions.

68 To satisfy the principle of legality, article 8 has precisely, complexly, and thoroughly listed the crimes that can incur prosecution. The exhaustive character of the enumeration has, however, generated much critique for fear of loopholes and unwanted restrictedness. W.A. Schabas, An Introduc-tion to the International Criminal Court, 2nd edition, 2004, 54 – 55. Al-though providing an extensive list of war crimes mostly based on Geneva Law, the Rome Statute does not intend to codify customary international law. Cassese, see note 40, 54.


of a large-scale commission of such crimes.”69 Article 8 (2)(a)(ii) crimi-nalizes biological experiments with protected persons.70 Pursuant to the Elements of Crimes, biological experiments seriously endanger the physical or mental health or integrity of the persons subjected to them when they are non-therapeutic, not justified by medical reasons, and not carried out in the interest of the research subject. There is thus no result requirement – death does not have to ensue, a “mere” threat to the health and integrity of the research subject suffices.71

Article 8 (2)(b)(x) prohibits mutilations and medical or scientific ex-periments in international armed conflicts.72 The provision correlates to arts 13 GC III, 32 GC IV, and 11 (2)(a) and (b) AP I. Article 8 (2)(b)(x) is listed among the provisions addressing “other serious violations of laws and customs applicable in international armed conflict.” The placement of the article is significant: the drafters excluded this medical breach from the grave breaches provisions under sub-paragraph (a) and moved it to the residual enumeration under sub-paragraph (b) instead. By this, the drafters indicated that pursuant to the Rome Statute this is considered a war crime but not a grave breach of the GCs or AP I.73 The prohibition of mutilations and medical or scientific experiments appears misplaced in sub-paragraph (b) because the prohibition derives directly from article 11 (2)(b) AP I and was heavily influenced by the

69 Article 8 (1) Rome Statute. This requirement of a plan or policy has gener-

ated much controversy because it is thought to introduce criteria that were previously limited to genocide and crimes against humanity. See Schabas, see note 68, 55. Others argue that it was included to clarify that only the “most serious crimes of concern to the ‘international community as a whole’” will be prosecuted. M. Bothe, “War Crimes”, in: A. Cassese et al., The Rome Statute of the International Criminal Court: A Commentary, 2002, 380.

70 The provision is based on arts 12 GC I, 13 GC II, 13 GC III, 32 GC IV and 11 (2)(b) AP I.

71 K. Dörmann, “Article 8 (a) Grave Breaches”, in: O. Triffterer, Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, 2008, para. 21.

72 Based upon a proposal by New Zealand and Switzerland. Doc. A/AC.249/1997/WG.1/DP.1, para. 1 (d); its final version as proposed by Germany in Doc. A/AC.249/1997/WG.1/DP.23/Rev.I, Section B (h).

73 Schabas, see note 68, 63. Seemingly supporting the re-classification by the Rome Statute, Dörmann, see note 42. Elements common to all crimes un-der article 8 (2)(b) ICC Statute, 128.


wording and interpretation in the Commentary to AP I.74 In addition, sub-paragraph (b) addresses acts committed on the battlefield which can hardly be said of these crimes. Despite the fact that article 8 (2)(a)(ii) is based heavily on Geneva Law, it is less explicitly based on article 11 (4) AP I than article 8 (2)(b)(x). Furthermore, article 8 (2)(b)(x) offers a wider scope of protection than article 8 (2)(a)(ii) which is limited to crimes against protected persons.75 Still, since these two provisions criminalize experiments, arts 8 (2)(a)(ii) and 8 (2)(b)(x), cor-respond and overlap.

Article 8 (2)(e)(xi) criminalizes mutilations and medical or scientific experiments amongst “other serious violations of the laws and customs applicable in armed conflicts not of an international character.” (empha-sis added).76 The prohibition of mutilations and experiments in non-international armed conflicts derives from article 5 (2)(e) AP II and is nearly identical with article 8 (2)(b)(x).77

Mutilations and medical or scientific experiments are thus penalized as medical war crimes in all armed conflicts.78 The analysis will concen-trate on article 8 (2)(b)(x) but applies mutatis mutandi to non-international armed conflicts unless indicated otherwise.

74 Such experiments, as all other medical procedures, are under article 11 (1)

AP I, justified only when indicated by the health of a person and consistent with the generally accepted medical standards. If a person carries out such an experiment in violation of the cumulative criteria of para. 1 and thereby willfully endangers the health of a person, he is punishable for a grave breach, pursuant to para. 4. According to Bothe, a more direct assimilation to article 11 AP I would have been beneficial for the sake of clarity. Bothe, see note 69, 393.

75 Dörmann, see note 42, para. 21. 76 Mutilations in general are also criminalized in article 8 (2)(c)(i) as a viola-

tion of common article 3 to the Geneva Conventions when committed against a person “taking no active part in the hostilities”. This offense committed in a non-international armed conflict lacks the strict require-ments the Elements of Crimes proscribe for the offense in an international armed conflict, such as the result requirement. Moir, see note 19, 512.

77 The only difference is in the wording “another party to the conflict” in-stead “adverse party.” Dörmann, see note 42, 483.

78 The Rome Statute, though controversially maintaining the differentiation between war crimes committed in international and those committed dur-ing a non-international armed conflict, has contributed to the equalization of the two systems by developing definitions of war crimes in non-international armed conflict. Schabas, see note 68, 54.


According to the Elements of Crimes,79 both mutilations and ex-periments are prohibited when (a.) not “justified by the medical, dental or hospital treatment of the person concerned,”80 (b.) carried out against the patient’s interest, and (c.) “[causing] death or seriously [en-dangering] the health of [these] persons.”

There is no explanation of what treatment would be justified by a person’s health. Examples of prohibited mutilations are unjustified am-putations, and, according to the first element in the Elements of Crimes, such acts that cause permanent disfigurement, the disablement or re-moval of organs or appendages. This is, however, open to interpreta-tion.81 For example, some may consider genital cutting justified, whereas others, including the present author, would consider this an unwarranted mutilation.82 Because relevant case-law is lacking, Dör-mann in his Commentary refers to documents of the World Medical Association to establish which procedures are not indicated by the health of a person, in particular to the “Regulations in Time of Armed Conflict” and the “Rules governing the Care of Sick and Wounded, particularly in Time of Conflict.”83 These documents he classifies as “tools for clarifying terms.”84

79 For interpretive and assistance purpose, the Assembly of States Parties to

the ICC has accepted an interpretive guide, the Elements of Crimes, as de-tailed in article 9 (1) Rome Statute. Elements of Crimes, see note 32.

80 In comparison, article 11 (1) AP I speaks of “indicated by the state of health of the person.”

81 Dörmann interprets mutilation textually and refers to the definition in the Oxford English Dictionary: to mutilate: “to inflict a violent or disfiguring injury on”. The Oxford Dictionary of English, 2nd edition, 2006. Moir de-fines “mutilation” as a medical procedure lacking medical justification. Moir, see note 19, 513.

82 General Comment No. 14 - The Right to the Highest Attainable Standard of Health (Article 12), Doc. No. E/C.12/2000/4, 2000, para. 22. And in lit-erature, see A. Zimmermann, “Article 8 (2)(b)(x) Prohibition of Physical Mutilation”, in: Triffterer, see note 71, para. 108.

83 The World Medical Association is an organization for physicians of 97 countries. It consists of representatives of medical associations. The status of its documents in international law is highly questionable. For further in-formation, see also M. Chang, “The World Medical Association”, Max Planck Encyclopedia of Public International Law, 2010 and <www.wma.net/en/10home/index.html>.

84 Dörmann, see note 42, 232. Also referring to the WMA, see Moir, see note 19, 515.


Whether a procedure is in the patient’s interest should thus also de-pend on whether the person has given his informed consent. Further-more, even though not explicitly stated in article 8 (2)(b)(x) or the Ele-ments of Crimes but hidden in a footnote,85 the requirement of incon-sistency of a medical procedure with generally accepted medical stan-dards, a requirement for medical grave breaches pursuant to article 11 (4) AP I, also applies under the Rome Stature,

“Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally ac-cepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of lib-erty.” (emphasis added)86 The consent of the person “treated” to the procedures can never be

used as a defense.87 It is, however, relevant to establish the legality of the procedure.

Both mutilations and experiments are criminalized when causing death or serious danger to the physical or mental health of a person.88 Unlike article 11 AP I and 8 (2)(a)(ii), the Rome Statute here introduces a result requirement.89 Whether the act caused death or seriously en-dangered the health of a person, should be determined on a case-by-case basis. An experiment not serving a therapeutic purpose should al-ways be regarded as prohibited.90 Lacking a specific mens rea require- 85 Switzerland proposed an additional requirement of consistency with gener-

ally accepted medical standards, formulated as article 11 (1) AP I, to be added to the Elements of Crimes. The proposal was rejected. Proposal submitted by Costa Rica, Hungary, and Switzerland in the Preparatory Commission for the International Criminal Court, Working Group on Elements of Crimes, Doc. PCNICC/1999/WGEC/DP.8 of 19 July 1999, 2.

86 Elements of Crimes, see note 32, 25. Because the reference to generally ac-cepted medical standards regrettably appears in a footnote and only serves as an interpretational help for the consent-aspect, it was not given more ex-planation or interpretation. Bothe, see note 69, 414.

87 Similar to article 11 (2) AP I. Elements of Crimes, see note 32, 25. 88 Article 11 AP I referred to both health and integrity, see Sandoz et al., see

note 17, para. 493 (b) which the drafters of the Rome Statute and Elements of Crimes excluded regarding mutilations; it is included regarding experi-ments. Elements of Crimes, see note 32, 25.

89 Moir, see note 19, 512. 90 Zimmermann, see note 82, para. 109.


ment, the relevant mental element for medical war crimes is “intent and knowledge”, pursuant to article 30 Rome Statute. This excludes reck-lessness and dolus eventualis.91 Considering article 11 (4) AP I refers to a “wilful act or omission” (emphasis added) which would include reck-lessness but exclude neglect,92 the question arises why this requirement was not instituted for medical war crimes under the Rome Statute. The prohibition of mutilations and experiments as codified in the Rome Statute without the requirement of willfulness lost some of the original meaning of medical war crimes as intended by the Additional Proto-cols.93

Article 8 (2)(b)(x) criminalizes mutilations and experiments when carried out on persons “in the power of an adverse party” during an in-ternational armed conflict. This excludes nationals of a state not a party to the conflict, a perpetrator’s own nationals and the nationals of a co-belligerent who would, pursuant to article 11 (1) AP I, still be protected when “interned or otherwise deprived of liberty.”94 It is also more re-stricted than article 11 (4) AP I which protects “any person who is in the power of a party other than the one on which he depends.”95 The perpetrator has to have been aware of the protected status of the victim and of the armed conflict. The perpetrator of this crime can be a civil-ian, including a doctor or nurse.96

It is commendable that the Rome Statute penalized two medical war crimes, mutilations and experiments, when committed in both interna-tional and non-international armed conflicts. However, due to some significant changes in the transposition of the crimes, the original con-cept of medical grave breaches pursuant to article 11 (4) AP I has re-grettably been unnecessarily restricted. The wide scope of protection of article 11 AP I applicable to all medical procedures was abandoned.97

91 A. Eser, “Mental Elements - Mistake of Fact and Mistake of Law”, in:

Cassese et al., see note 69, 932. 92 Dörmann, see note 42, 233, 239. 93 This danger was identified but not applied to this case by Eser, see note 91,

899 – 900. 94 Zimmermann, see note 82, para. 105. 95 Id., see note 82, para. 105. On the scope of protection of article 11 AP I, see

Sandoz et al., see note 17, para. 468. Dörmann argues that the scope in arti-cle 8 (2)(b(x) should be the same which is not supported by the text of the Rome Statute or by other commentators. Dörmann, see note 42, 231.

96 Dörmann, see note 42, 37. 97 This was also noted by Kress, see note 34, 137; Moir, see note 19, 511.


Although the restricted criminalization in article 8 Rome Statue “does not affect the protective scope of Article 11 AP I”,98 because the Addi-tional Protocols continue to apply independently, the limitation to mu-tilations and experiments is regrettable. The prohibition will probably lead to a limited number of prosecutions of physicians for medical war crimes.

IV. National Implementation: The German Example

In comparison and in order to analyze one national implementation of medical war crimes, § 8 of the German Völkerstrafgesetzbuch VStGB (Code of Crimes against International Law) of 2002 serves as an illus-trative example of a more comprehensive criminalization of medical war crimes. If published earlier, it could have served as a model for the Rome Statute.

Medical war crimes are criminalized under the VStGB which is ap-plicable next to the “regular” German Criminal Code.99 With the VStGB, Germany adapted its legislation to the Rome Statute but fur-ther than that, also finally aligned its legislation with AP I100 and inte-grated rules of (customary) international humanitarian law.101 Adhering to the principle of universal jurisdiction, the VStGB enables the prose-cution of all enumerated acts even when committed abroad without a nexus to Germany.102 As an innovative feature, § 8 VStGB eliminates the distinction between international and non-international armed con-flicts: all crimes against protected persons during either an international or a non-international armed conflict are punishable.103 In order for a 98 Bothe, see note 69, 413. 99 Völkerstrafgesetzbuch (VStGB) of 26 June 2002 (BGBl. I, 2254). 100 A. Zimmermann, “Implementing the Statute of the International Criminal

Court: the German Example”, in: L.C. Vohrah et al., Man’s Inhumanity to Man - Essays on International Law in Honour of Antonio Cassese, 2003, 986 – 987.

101 G. Werle, “Einleitung Völkerstrafgesetzbuch”, in: W. Joecks/ K. Miebach, Münchner Kommentar zum Strafgesetzbuch: Nebenstrafrecht III: Völker-strafgesetzbuch, 2009, 439.

102 § 1 VStGB. This development is also in line with German jurisprudence. K. Ambos, “§ 1: Anwendungsbereich”, in: Joecks/ Miebach, see note 101, 475.

103 Protected persons are defined as such persons as designated in the Geneva Conventions and Additional Protocols, namely in international armed con-flicts the wounded, sick, and shipwrecked, prisoners of war, and civilians;


crime to be prosecuted, there has to be a general nexus with the armed conflict.104

All medical acts that risk the death of a protected person or severely endanger his health are prosecutable as war crimes.105 The prescribed penalty for medical war crimes is a minimum of two years’ imprison-ment. If such a crime leads to the death of the protected person or se-vere damage to the person’s health, the penalty is augmented by one year to a minimum of three years’ imprisonment.106 There is no statute of limitations on the crime.107

Three sub-paragraphs of § 8 (1) VStGB specify which medical acts are considered being war crimes. The first sub-paragraph criminalizes involuntary experiments the patient has not explicitly consented to, or that are neither medically necessary nor in the interest of the patient. This includes medical, scientific and biological experiments, as long as they have a direct or indirect effect on the body.108 Even though the formulation raises doubts whether a patient can consent to an experi-ment that is neither therapeutic nor in his interest but in the interest of someone else, the Bundestag’s Explanatory Note clarified that experi-ments that are neither medically justified nor in the interest of the pa-tient are prohibited even if the patient consented.109

Transfer of tissue and organs, except the withdrawal of blood or skin for therapeutic purposes, is prohibited pursuant to the second sub-paragraph. According to the Explanatory Note, the sub-paragraph is best regarded as a category of the prohibition of inhuman treatment.110

in non-international armed conflicts the wounded, sick and shipwrecked, and persons not taking active part in hostilities and who are in the power of the adversary party; and in both adversaries who have put down their arms or who are unable to defend themselves. § 8 (6) VStGB.

104 K. Ambos, “Vorbemerkungen § 8: Kriegsverbrechen”, in: Joecks/ Miebach, see note 101, 638. See also ICTY Prosecutor v. Dragoljub Kunarac, Ra-domir Kovaþ, and Zoran Vukoviü, Trial Chamber Judgment (22 February 2001) para. 568.

105 § 8 (1)(8) VStGB. 106 § 8 (1) last sentence, respectively § 8 (4) VStGB. 107 § 5 VStGB. 108 A. Zimmermann/ R. Geiß, “§ 8 (2): Kriegsverbrechen gegen Personen”, in:

Joecks/ Miebach, see note 101, 690 – 691. 109 Deutscher Bundestag, Gesetzesbegründung eines Gesetzes zur Einführung

des Völkerstrafgesetzbuches, 14/8524, 13 March 2002, 27. 110 Ibid., 28.


A withdrawal has to comply with the generally accepted medical stan-dards and the person has to have voluntarily and explicitly consented to the withdrawal. The phrase “generally accepted medical standards” is not further elaborated on.111 It can be inferred that these standards refer to those that are generally accepted in Germany.

Lastly and beyond the provisions of the Rome Statute, the third sub-paragraph criminalizes procedures that are medically not accepted if they are not medically required and the person has not given his vol-untary and explicit consent. These cumulative requirements are based on article 11 (1) AP I.112 Using unsuitable medication, giving an over-dose of a certain medicine, or using surgery when medication is un-available are named as examples in the Explanatory Note.113

By being prominently included in all three sub-paragraphs, the in-formed consent of the person being medically treated appears to be an essential requirement. A procedure carried out without the patient’s in-formed consent generally entails a medical war crime under the VStGB. Despite the emphasis on this principle of general medical ethics, the sub-paragraph that specifically addresses unwarranted medical proce-dures does not explicate that medical ethics or generally accepted medi-cal standards are to be adhered to. This is especially striking considering that the overall wording remained close to the wording of article 11 AP I.

This cursory and brief examination of the criminalization of medical war crimes by Germany demonstrates that an explicit and comprehen-sive implementation of the prohibition of unwarranted medical proce-dures and the related grave breach as a war crime is possible. Germany’s comprehensive regulation of medical crimes emphasizes the importance of the consent of a patient. Procedures carried out without the consent of the person to be treated are generally considered unwarranted. One regrettable omission in the German Code is that it does not explicate whether a physician should adhere to medical ethics or medical stan-dards.114 As a civil law country, Germany adopted a separate criminal

111 Zimmermann/ Geiß, see note 108, 691. 112 The Explanatory Note proclaims that its application in both non- and in-

ternational armed conflicts is accepted in customary international humani-tarian law.

113 Deutscher Bundestag, see note 109, 28. 114 In comparison, the Dutch International Crimes Act expects physicians to

act in accordance with “generally accepted medical norms”. Article 5 (2)(b)


code in which it created separate international crimes. That countries which have ratified the Additional Protocols, have also ratified the rele-vant provision comes as no surprise. Still, the German VStGB provides an example of a very conscious, extensive and comprehensive imple-mentation of article 11 AP I.

V. The Prosecution of Medical War Crimes

The development of a system of individual responsibility for war crimes was not a novelty when the Geneva Conventions were adopted in 1949. In general, the prosecution of individuals for acts of war that violate customary international law has a long history.115 It was only after World War II that states considered the question on a larger scale: what was to happen to the innumerable persons who had committed war crimes, including the significant number of physicians implicated in criminal activities?

In the aftermath of World War II, a number of physicians were prosecuted for medical acts that were considered war crimes or crimes against humanity. Human experimentation, involvement in “euthana-sia”, and medical neglect were the subject of numerous trials following the discovery of the horrific (medical) realities of the concentration camps and other places or institutions in the German Reich before and during World War II. The Allies decided that “war criminals and those who have participated in planning or carrying out Nazi enterprises in-

Wet Internationale Misdrijven, 19 June 2003, available at <http://wetten. overheid.nl/BWBR0015252/geldigheidsdatum_09-10-2009>.

115 McCoubrey refers to early trials resembling war crimes trials as early as 1217. H. McCoubrey, “War Crimes Jurisdiction and a Permanent Interna-tional Criminal Court: Advantages and Difficulties”, Journal of Armed Conflict Law 3 (1998), 9 et seq. (10 – 13). One of the first trials for war crimes before an international body was the case against Peter van Hagen-bach in 1474 for terrorizing the town Breisach during a power battle be-tween the Duke of Burgundy and the Archduke of Austria. The tribunal formed under the aegis of the Holy Roman Empire which tried the case could in retrospect be classified as international, as the Empire was disinte-grating and thus the cities supplying arbitrators should count as independ-ent entities. Including a discussion of the defense of superior orders, the trial was remarkably modern. McCoubrey, see note 44, 171.


volving or resulting in atrocities or war crimes shall be arrested and brought to judgment.”116

The Nuremberg Charter established individual criminal liability for war crimes in article 6 (b)117 where it enumerated acts “for which there shall be individual responsibility.”118 Several states also implemented special legislation to deal with war crimes; others used existing laws and regulations.119 Subsequently, the occupying authorities of the four zones of annihilated Germany further prosecuted war criminals based on article II (b) of Control Council Law No. 10 which reproduced arti-cle 6 (b) of the Nuremberg Charter.120 Persons accused of war crimes under article II could either be prosecuted by the occupying authorities of the relevant zone, by the local authorities, if feasible, or extradited to another zone or even country requesting extradition and having a prima facie case against the person.121 This system was based on the principle of aut dedere aut judicare. German suspects having committed war

116 Para. II (5) of the Potsdam Agreement, Agreements of the Berlin (Potsdam)

Conference, 17 July – 2 August 1945, Protocol of the Proceedings, press re-lease, 24 March 1947, reprinted in: US Department of State, Germany 1947 - 1949 The Story in Documents, Office of Public Affairs, March 1950, at <http://avalon.law.yale.edu/20th_century/decade17.asp>.

117 See comparatively article 5 (b) of the Charter of the International Military Tribunal for the Far East (IMTFE), Special Proclamation of 19 January 1946 (as amended on 26 April 1946). Without further specifying which crimes are considered war crimes, article 5 (b) IMTFE Charter only refers to “violations of the laws or customs of war” in general.

118 The violations of the laws or customs of war enumerated in article 6 (b) in-clude “murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages […]”. London Agreement for the Prosecution and Punishment of the Ma-jor War Criminals of the European Axis (London Agreement) and Charter of the International Military Tribunal, 8 August 1945, UNTS Vol. 82 No. 251.

119 Especially in countries where the principle of nulla poena sine lege is con-sidered principal, it was difficult to prosecute persons without violating general principles of criminal law. Pictet, see note 46, 396.

120 Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, in: Official Gazette Control Council for Germany 2 (1946), 50 – 55.

121 Arts III and IV, Control Council Law No. 10, see note 120.


crimes against Germans were tried by German authorities.122 Despite the success of these international trials, a disparity became apparent: “victory [proved] as a de facto absolution for violations of the jus in bello” on the part of the victors.123

Although the international prosecution of individuals has received much attention, mostly due to the establishment of the ICTY, ICTR and the ICC, the national prosecution of war crimes is still considered the backbone of the system of accountability under Geneva and inter-national criminal law.124 Primarily, it is the duty of the national state of the perpetrator or victim, or on whose territory the crime was commit-ted to prosecute grave breaches of the Geneva Conventions and other war crimes, if criminalized.125 Only in the second place should a state extradite persons to another country or to an international tribunal. Due to state sovereignty, the prosecution of war criminals by the state itself remains the norm, even if the jurisdictions of the ICTY and the ICTR determine otherwise by claiming primacy over the limited num-ber of crimes under their jurisdiction.126 The Rome Statute is based on a different principle, namely that the ICC “shall be complementary to national criminal jurisdictions.”127 The ICC does not claim primacy over national prosecutions. Neither does the Rome Statute expressly require state parties to implement its provisions, or calls on them, to in-stitute universal jurisdiction. Yet, to be able to investigate, prosecute, and “exercise […] jurisdiction over those responsible for international

122 “Such tribunal may, in the case of crimes committed by persons of German

citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German Court, if authorized by the occupying authorities.” Article III (d), Control Council Law No. 10, see note 120.

123 McCoubrey, see note 44, 173. For other reasons that may present obstacles to national prosecutions of international crimes, see J. Kleffner, Comple-mentarity in the Rome Statute and National Criminal Jurisdictions, 2008, 48 – 54.

124 Kleffner, see note 123, 9, 101. 125 R. Wedgwood, “National Courts and the Prosecution of War Crimes”, in:

G. Kirk Mcdonald/ O. Swaak-Goldman, Substantive and Procedural As-pects of International Law - Commentary, 2000, 394.

126 Article 9 (2) ICTY Statute and article 8 (2) ICTR Statute. 127 Preamble and article 1 Rome Statute.


crimes”, states are advised to implement the provisions in order to be able to prosecute international crimes.128

National prosecutions of medical war crimes are sparse. The few prosecutions focusing on medical aspects of war crimes, rarely explic-itly discussed the crimes as “medical war crimes”.129 International case law is also, with the exception of World War II jurisprudence, sorely lacking.130 Despite the increase in the number of prosecutions for inter-national crimes since the late 20th century,131 little attention is paid to medical war crimes. This is the case despite article 11 (4) AP I, its im-plementation in some national legislations, and its partial codification in the Rome Statute. Politics seem to limit the scope of this broad princi-ple.132

Due to the lack of recent case law, an examination of international medical war crimes trials is almost exclusively limited to the available jurisprudence of the international war crimes trials after World War II. Only one example concerns a recent international tribunal, the medical neglect of Tutsi patients during the armed conflict in Rwanda as prose-cuted before the ICTR. This article will thus scrutinize the best known trial of medical war crimes, the Doctors’ Trial that dealt with the crimi-nal experiments by physicians in the German Reich, and also look at the only recent example of an international crime, the Ntakirutimana Trial, committed during an armed conflict with a significant medical as-pect. The analysis highlights how these two courts addressed medical crimes. Their approach regarding such crimes can illuminate and further

128 Pursuant to preambular para. 6 and article 17 Rome Statute, it only requires

states to investigate and prosecute. In general on complementarity, see Kleffner, see note 123.

129 For example, “euthanasia” was prosecuted by the Federal Republic of Ger-many under the regular Criminal Code, see the Judgment in the Frankfurt Euthanasia Trial, in: A.L. Rüter-Ehlermann/ C.F. Rüter, Justiz und NS-Verbrechen - Sammlung deutscher Strafurteile wegen Nationalsozia-listischer Tötungsverbrechen 1945 - 1966, Vol. I, 1968, Lfd. Nr. 017, 303 - 379. The German Democratic Republic, on the other hand, prosecuted “euthanasia” as a crime against humanity, see the Judgment in the Dresden Euthanasia Trial, in: Rüter, see note 27, 495 – 511. For a thorough docu-mentation of the trial, see J.S. Hohmann, Der ‘Euthanasie’-Prozess Dresden 1947 - eine zeitgeschichtliche Dokumentation, 1993.

130 Dörmann, see note 71, 309. 131 Kleffner, see note 123, 34 – 38. 132 Wedgwood, see note 125, 396.


the interpretation and development of the concept of medical war crimes.

1. The Doctors’ Trial of 1947

The case of the United States of America against Karl Brandt and 22 other accused,133 known as the “Doctors’ Trial” or “Medical Case”, was the first to be tried by the US occupying force at the Nuremberg Mili-tary Tribunal.134 Of the 23 defendants, only three were not medical doctors, namely Wolfram Sievers, Rudolf Brandt and Viktor Brack.135 The four Counts with which the defendants were charged were: (a.) common design or conspiracy, (b.) war crimes, (c.) crimes against hu-manity, and (d.) membership in a criminal organization. The charge un-der Count (2) held that,

“between September 1939 and April 1945 all of the defendants herein unlawfully, willfully and knowingly committed war crimes as defined in article II of Control Council Law No. 10, in that they were principals in, accessories to, ordered, abetted, took a consent-ing part in, and were connected with plans and enterprises involving medical experiments without the subject’s consent, upon civilians and members of armed forces of nations then at war with the Ger-

133 Including Dr. Ruff and Dr. Romburg who were mentioned previously and

one female indictee: Herta Oberhauser. 134 The Doctors’ Trial, see note 23. Criminal experiments by the Japanese

armed forces on prisoners of war, also carried out during World War II, were prosecuted by a Soviet Military Tribunal in 1949. There is not much information available on this trial, see Military Tribunal of the Primorye Military Area, Materials on the Trial of former Servicemen of the Japanese Army charged with manufacturing and employing Bacteriological Weapons, 1950. Unfortunately the transcripts of the trial are not accessible. J.W. Powell et al., “Special Report: Japan’s Biological Weapons: 1930 – 1945”, The Bulletin of the Atomic Scientists 10 (1981), 43 et seq.

135 18 of the accused had been NSDAP party members and the majority had held an influential position within either the Wehrmacht or the SS. For de-tails, see note 23, Vol. I, Opening Statement of the Prosecution by Brigadier General Telford Taylor, 9 December 1946, 29 – 36. A representative psy-chiatrist of the French Scientific Commission on War Crimes, Francoise Bayle, professionally assessed the state of mind of the accused. See F. Bayle, Croix Gammée contre Caducée: les Expériences Humaines en Allemagne pendant la Deuxième Guerre Mondiale, l’Office Militaire de Sécurité, 1950.


man Reich and who were in the custody of the German Reich in ex-ercise of belligerent control, in the course of which experiments the defendants committed murders, brutalities, cruelties, tortures, atrocities and other inhuman acts.” The criminal experiments were high altitude, freezing, malaria, mus-

tard gas, sulfanilamide, bone, muscle and nerve regeneration, bone transplant, sea-water, epidemic jaundice, sterilization, typhus (and other vaccines), poison, and explosives experiments. Furthermore, R. Brandt and Sievers were specifically charged with the illegal endeavor of killing 112 Jewish persons for completing a skeleton collection for the Reich’s University of Strasbourg. Blome and R. Brandt with the general murder and mistreatment of Polish nationals, and lastly K. Brandt, Blome, Brack, and Hoven for involvement in the “euthanasia” program.136 All of these crimes were alleged to be in violation of arts 4, 5, 6, 7, and 46 of the Hague Regulations of 1907,137 and of arts 2, 3, and 4 of the Geneva Convention relative to the Treatment of Prisoners of War of 1929, the laws and customs of war, general principles of criminal law as derived from the criminal laws of all civilized nations, national penal laws and article II of the Control Council Law No. 10.138 Of the 23 accused,

136 Marrus believes that an unbalanced amount of emphasis was placed on the

experiments, whereas, while not denying the unimaginable cruelty and bar-barity of them, the “euthanasia” and sterilization programs had led a much greater number of people to death and should have been given more atten-tion during the trial. M.R. Marrus, “The Nuremberg Doctors’ Trial and the Limitations of Context”, in: P. Heberer/ J. Matthäus, Atrocities on Trial - Historical Perspectives on the Politics of Prosecuting War Crimes, 2008, 114 – 115.

137 These Regulations in general concern prisoners of war and their treatment. Article 46 concerns the treatment of the population under the military au-thority over a hostile state. Convention (IV) respecting the Laws and Cus-toms of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, U.K.T.S. 9 (1910), Cd. 5030.

138 The Doctors’ Trial, Vol. I, Indictment, 11 – 16, see note 23. Comparable to United States Military Tribunal II, United States of America v. Erhard Milch, Trials of War Criminals Vol. II, Judgment (16 April 1947) Indict-ment, 362 – 363. The Milch case was tried almost simultaneously, beginning on 2 January 1947 – a month after the Doctors’ Trial. Its Judgment was handed down before that of the Doctors’ Trial.


seven, all members of the SS, were sentenced to death,139 nine were sen-tenced to prison terms,140 and seven were acquitted.141

In this case dealing almost exclusively with doctors and exclusively with medical war crimes, it was indispensable that the prosecution ad-dressed medical ethics. According to Telford Taylor’s opening state-ment,

“The general decline of German medical conduct and the poisoning of German medical ethics which the Nazis brought about laid the basis for the atrocious experiments of which the defendants are ac-cused.”142 Talyor claimed that the defendants had all violated the Hippocratic

Oath, particularly the principle of primum non nocere (first do no harm).143 Basic standards in the treatment of patients were violated by the physicians in charge of the experiments: the research subjects were never asked if they consented to the research, often forced into the medical wards,144 and not informed as to what was being done to them. For example during the bone and muscle transplant experiments, the re-search subjects were repeatedly surgically operated on whereby pieces of bone or muscles were extracted. Most had not consented and all were unaware of the painful consequences and lasting scars of such an opera-tion.145 Post-operative care was only given if relevant for the experi-ments: if they survived the torturous experiments,146 the research sub- 139 K. Brandt, Gebhardt, Mrugowksy, Brack, Sievers, R. Brandt, and Hoven

were convicted and hanged on 2 June 1948. 140 Handloser, Schröder, Genzken, Poppendick, Rose, Becker-Freyseng,

Beiglböck, Oberheuser, and Fischer were convicted and sentenced to prison terms.

141 Blome, Rostock, Ruff, Romburg, Weltz, Schäfer, and Pokorny – all not members of the SS – were acquitted.

142 The Doctors’ Trial, Vol. I, Opening Statement of the Prosecution by Briga-dier General Telford Taylor, 9 December 1946, see note 23, 61.

143 Taylor: “All of them violated the Hippocratic commandments which they had solemnly sworn to uphold and abide by, including the fundamental principles never to do harm ‘primum non nocere’”. Ibid., Vol. I, Opening Statement of the Prosecution by Brigadier General Telford Taylor, 9 De-cember 1946, 68.

144 Ibid., Vol. I, Voluntary Participation of Experimental Subjects, 980 – 992. 145 Ibid., Vol. I, Testimony of witness, Ms. Karolewska, 412 – 413. 146 Most experiments resulted in the death of the research subject, see for ex-

ample, ibid., Vol. I, Report of 10 October 1942 on Cooling Experiments on Human Beings, by Holzlöhner, Rascher and Fink, 230 seq.


jects were returned to the barracks in the camps with untreated wounds. Most were unable to work or function properly afterwards which practically meant death in a concentration camp. Those that sur-vived all this still carry the scars.

This all raised serious questions of the standards of medical ethics in Germany at that time. During the trials, the questions of medical ethics and whether an experiment using human subjects was ethically justifi-able were raised regularly.147 Several of the defendants referred to medi-cal ethics in their pleas and whether the experiments had been in line with certain principles.148 The precise principles were not explicated; neither by the prosecution nor by the Defense. In Taylor’s opinion,

“[w]ere it necessary, one could make a long list of the respects in which the experiments which these defendants performed departed from every known standard of medical ethics. But the gulf between these atrocities and serious research in the healing art is so patent that such a tabulation would be cynical.”149 The only principle that was subject of much debate was the princi-

ple of consent. With every experiment, during every examination, the question arose as to whether the research subjects had volunteered to be experimented upon.150 Generally, it was assumed that none of the ex-periments had been conducted on voluntary research subjects who had consented to the experiments.151 By this, the tribunal demonstrated the importance of consent, if not yet called informed consent.

147 Taylor concentrated more on the political nature of the crimes and less on

the impalpable concept of medical ethics. Weindling, see note 12, 172. 148 See the Doctors’ Trial, Vol. II, Final Plea Defendant Gebhardt, 71 – 73 and

Final Plea Defendant Beiglböck, 74 – 77, see note 23. 149 By the Prosecution, see ibid., Vol. I, Opening Statement of the Prosecution

by Brigadier General Telford Taylor, 9 December 1946, 71. Otherwise, ref-erences can be found throughout the witness examinations.

150 See testimonies by both witnesses and defendants. For example, ibid., Vol. I, 180, 188, 385, 980 seq.

151 The judges of the trial established ten principles for ethically sound ex-periments on humans, the Nuremberg Code, ibid., Judgment, Vol. II, 181 – 182. On the Nuremberg Code, see U. Schmidt, “The Nuremberg Doctors’ Trial and the Nuremberg Code”, in: U. Schmidt/ A. Frewer, History and Theory of Human Experimentation, 2007.


Some critical notes concerning the trial are in order.152 First of all, a common criticism that cannot be overstated is that the trial did not try all those who should have been tried.153 Of course this was partly due to the fact that certain suspects had either committed suicide (e.g. the chief physician of Auschwitz, Standortarzt Dr. Wirths, committed sui-cide in police custody in 1945),154 passed away (e.g. Prof. Carl Clauberg died in police custody on 9 August 1957),155 or could not be located (e.g. until the late 1980s, Dr. Joseph Mengele’s whereabouts were un-known).156 It is questionable whether those who were tried were thus representative of the crimes committed in the name of medicine by the Nazi apparatus.

A further criticism is that the medical expert witness of the prosecu-tion, Prof. Andrew Ivy, allegedly had insufficient knowledge when questioned directly by the accused157 and was criticized for bias.158 A

152 See also H.H. Freyhofer, The Nuremberg Medical Trial - The Holocaust

and the Origin of the Nuremberg Medical Code, 2004, 86 – 103. 153 There were also national prosecutions regarding the experiments. An ex-

ample is the trial of Dr. Kurt Heissmeyer (Rüter, see note 27, Lfd. Nr. 1057, 613 – 631).Taylor admitted that not all “co-conspirators” were on trial. The Doctors’ Trial, Vol. I, 68, see note 23.

154 H. Langbein, Der Auschwitz-Prozess: eine Dokumentation, 2nd edition, 1995, 581.

155 R.J. Lifton, The Nazi Doctors - Medical Killing and the Psychology of Genocide, 1986, 277 – 278; C. Dirks, “Die Verbrechen der anderen” - Auschwitz und der Auschwitz-Prozeß der DDR: Das Verfahren gegen den KZ-Arzt Dr. Horst Fischer, 2006, 195. On Clauberg, see the Doctors’ Trial, Vol. I, 699 – 701, see note 23. Also, see his research proposal to Reich Leader of the SS, Heinrich Himmler, where he compares the research on female Auschwitz inmates to that on rabbits, 724 – 727, ibid.

156 An international investigation, instigated by the US Department of Justice Office of Special Investigations, followed a thread on Joseph Mengele to a couple in Sao Paolo in whose apartment his diaries and letters were found. Remains of a body found at a graveyard nearby were also identified as Mengele. He is believed to have died in 1979. For a detailed account of the events of this discovery, see Criminal Division, Department of Justice, Re-port of the Office of Special Investigation (OSI) - Striving for Accountabil-ity in the Aftermath of the Holocaust, December 2006, 390 – 405. Lifton came to the same conclusion based on other sources. Lifton, see note 155, 382.

157 He was questioned by defendants Ruff, Rose and Beiglböck personally. They mostly directed their cross-examination at lethal experiments con-ducted in the United States and Ivy’s expert knowledge. Transcript of the


further medical expert, next to Ivy and the German expert Dr. Leib-brand, would have increased the credibility of the proceedings. Lastly, the fact that several of the accused were recruited by the U.S. Military after the war,159 was an impediment to the neutrality of the trial. The use of the results of the experiments by the U.S. military should have been broadly discussed and assessed by the U.S. Tribunal. A further of-ten heard criticism was the tu quoque argument: the US army had also conducted human experiments without the consent of the research sub-jects.160 These deficiencies tarnished the image of the tribunal. Never-theless, because the trial was “concerned with permissible experiments on humans, and with wider questions as to what constituted ethical and non-ethical experiments”,161 it is the only clearly “medical” trial in his-tory. In the aftermath of World War II and ever since, there has not been a single trial that dealt exclusively with medical war crimes.162

2. The Ntakirutimana Trial of 2003

Before the ICTR, one physician was tried for his actions during the genocide in 1994.163 Dr. Gérard Ntakirutimana was physician and

Doctors Trial, Direct Cross-Examination Defendant Ruff, 13 June 1947, 9285 – 9295; 14 June 1947, 9297 – 9315. Direct Cross-Examination Defen-dant Rose, 16 June 1947, 9364 – 9378. Direct Cross-Examination by De-fendant Beiglböck, 16 June 1947, 9381 – 9404.

158 Schmidt, see note 151, 98 – 99. 159 Blome was hired by the US Army Medical Corps three years after the war,

Ruff by the Aero-Medical Center of the US Air Forces in 1945. Freyhofer, see note 152, 87 and 92.

160 The Doctors’ Trial, Vol. I, 994 – 1002, Vol. II, 90 – 96, see note 23. Also, for example, Transcript of the Doctors Trial, Direct Cross Examination by Dr. Sauter, 14 June 1947, 9319 – 9320; Direct Cross Examination by Defendant Rose, 16 June 1947, 9368 – 9373.

161 Schmidt, see note 151, 82. 162 Other post World War II trials also addressed medical crimes, but hardly

ever as war crimes. The Euthanasia Trials conducted in both the Federal Republic of Germany and the German Democratic Republic were medical trials in the sense that they addressed purely medical crimes, but the FRG addressed “euthanasia” as murder under the German Strafgesetzbuch, and the GDR addressed it as a crime against humanity. The Frankfurt Euthana-sia Trial, see Rüter-Ehlermann/ Rüter, see note 129. The Dresden Euthana-sia Trial, see Rüter, see note 27.

163 Ntakirutimana Trial Judgment, see note 27.


medical director at Mugonero hospital within the Mugonero complex, in the Kibuye prefecture in Rwanda. Although the initial indictment of 20 October 2000 did not charge Ntakirutimana with any medical crimes,164 the prosecution in its Pre Trial Brief charged Ntakirutimana under Count 5 with a crime against humanity, namely “other inhuman acts” pursuant to article 3 (i) ICTR Statute, by “closing the medical store, denying treatment to Tutsi patients, and cutting off utility sup-plies.”165 As Ntakirutimana locked the medicine storage room and took the keys with him, the patients could also not be provided with medical care after his departure.166 The prosecution alleged that Ntakirutimana by abandoning his hospital on 14 April 1994 while hundreds of wounded, mostly Tutsi patients were requiring treatment had denied them medical care.167

The Trial Chamber decided that there was insufficient evidence to prove that Ntakirutimana had acted with discriminatory intent, an ele-ment of crimes against humanity under article 3 ICTR Statute.168 It found that “[under] these circumstances a remark by [Ntakirutimana] to the effect that he lacked the necessary means to treat Tutsi arriving at the hospital with shrapnel wounds […], or that he had no medication for Tutsi […was] not in itself conclusive evidence of any discriminatory intent.”169 Almost all patients were Tutsi at that point in time and medi-cal supplies were generally scarce, so a discriminatory intent could not

164 ICTR Prosecutor v. Elizaphan Ntakirutimana, Gérard Ntakirutimana &

Charles Sikubwabo, Mugonero Indictment, 20 October 2000, paras 4.6 – 4.7.

165 Prosecution’s Pre Trial Brief, Annex B. See Ntakirutimana Trial Judgment, see note 27, paras 137 – 153.

166 Ibid., paras 137 – 138. 167 For another case addressing the question of the denial of medical care as a

war crime or crime against humanity, see B.R. van Cassatie, Trial of Fritz Georg Hermann Pilz [“The Pilz Case”], NederlJ 1950, Judgment, 5 July 1950.

168 Ntakirutimana Trial Judgment, see note 27, para. 817. Pursuant to article 3 ICTR Statute, a crime against humanity is committed “when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.” Cassese defines this special criminal intent as follows: “The intent must be to subject a person or group to discrimination, ill-treatment, or harassment, so as to bring about great suffering or injury to that person or group on religious, political or other grounds.” Cassese, see note 40, 82.

169 Ntakirutimana Trial Judgment, see note 27, para. 151.


be inferred solely from these remarks. Yet the Trial Chamber deter-mined that Ntakirutimana had abandoned his Tutsi patients when leav-ing the hospital on 14 April 1994 which the Trial Chamber noted “as part of the general context” of the case.170 Ntakirutimana was acquitted of the charges of a crime against humanity for inhuman treatment by denial of medical care.171 He was found guilty of genocide and sen-tenced to 25 years’ imprisonment.172

It is clear that the medical aspects of the crimes allegedly committed by Ntakirutimana during the armed conflict only play a subsidiary role in the trial. The dominating aspect was his acts as a génocidaire after he had left the hospital. Hence, it comes as no surprise that the denial of medical care as a crime against humanity was not given much attention. However, the fact that it was added to the charges indicates that the prosecution at least considered this to be a circumstance worth men-tioning. Further, the Trial Chamber considered Ntakirutimana’s role as a physician in the events as an aggravating circumstance. As a doctor, he had been more educated than most of the people in the region. The Trial Chamber found it,

“particularly egregious that, as a medical doctor, he took lives in-stead of saving them. He was accordingly found to have abused the trust placed in him in committing the crimes of which he was found guilty.”173 With this reasoning, the Trial Chamber implied that Ntakirutimana,

as a physician, had to meet higher moral standards. The assumptions 170 Ibid., para. 153. 171 Ibid., paras 878, 924. 172 His conviction for genocide was criticized in literature for lack of discrimi-

natory intent. O. Olusanya, “Commentary to Judgment, Prosecutor v. Eli-zaphan Ntakirutimana and Gérard Ntakirutimana”, in: A. Klip/ G. Sluiter, Annotated Leading Cases of International Criminal Tribunals, 2008, 890 – 891.

173 Ntakirutimana Trial Judgment, see note 27, para. 910. The Appeals Cham-ber did not discuss the acquittal of the inhumanity charges. It did, however, discuss Ntakirutimana’s appeal argument that the Trial Chamber had come to a conclusion on the denial of medical care in para. 153 based on an “im-pression” that was not proven beyond reasonable doubt. According to the Appeals Chamber, the Trial Chamber had indeed used an “improper stan-dard of proof” but as there was sufficient other evidence, also by the ac-cused himself, it judged the error on the part of the Trial Chamber as “harmless”. ICTR Prosecutor v. Elizaphan and Gérard Ntakirutimana, Appeals Chamber Judgment, 13 December 2004, paras 163 – 164.


the Trial Chamber made here would have benefited from a more elabo-rate explanation.

3. General Observations concerning Prosecution

Prosecutions for medical war crimes per se are rare.174 With the horrific medical crimes committed in the course of World War II – the physicians’ involvement in the extermination machinery, their experiments and their role in the “euthanasia” process – crimes committed by physicians during armed conflict had for a short period come to the center of legal attention. The lapse of time between the wave of trials for medical crimes and the Ntakirutimana Trial demonstrates the lack of interest in such crimes in international law and politics.

What can be surmised is that certain medical actions are considered criminal, namely conducting unscientific and non-consensual experiments, killing protected persons in the name of “euthanasia” or science, and the denial of medical care to certain persons or groups of persons. These actions have in common that they are all carried out by physicians or medical personnel: the supposed experiments were carried out by physicians in the name of medicine and science, physicians injected patients in their institutions or hosiptals with lethal substances or wrote dishonest death certificates, and physicians denied medical care that they could provide to those in need. All these actions are undeniably medical. Yet it should be made clear that in the case of the experiments and the “euthanasia” program, what contributed to the medical context of the crimes should be classified as “pseudo-medical” rather than having to do with the usual work of the medical profession. Pursuant to the generally recognized principles of beneficence and non-maleficence, physicians should work towards healing and alleviating suffering, not towards endangering the health of and killing patients.175

174 During the Cold War, all trials of international crimes were rare. Kleffner,

see note 123, 35. 175 Beneficence and non-maleficence are two generally accepted principles of

medical ethics. See, for example, Beauchamp/ Childress, see note 18. One of the oldest principles of medical and biomedical ethics is that of non-maleficence. It is epitomized by the phrase primum nil nocere – first do no harm. This sentence does not stem from the Hippocratic Oath, but the principle can be inferred from the pledge to refrain “from what is to [the


It is regrettable that the tribunal in the Doctors’ Trial, a trial clearly addressing medical crimes only, did not classify the crimes committed by physicians as “medical” war crimes. The judges would have had ample opportunity to discuss what distinguished these crimes from regular war crimes. A specification in a more focused discussion would have been insightful and beneficial for the development of the concept of medical war crimes. Understandably the focus on the medical aspects was lost in the attention paid to the overall atrocities that had been committed. Even though the prosecution addressed the medical ethics governing the behavior of these physicians, the tribunal in its judgment concentrated on the role of the physicians in the overall machinery, on the nationality of the victims, and their consent. The characteristics and ethics of physicians as such did not figure in the judgment.

In comparison, the ICTR in the Ntakirutimana Trial, though only succinctly addressing the charge of denial of medical care, had higher expectations of a physician to act morally and to adhere to higher ethical codes than regular defendants. It considered that Ntakirutimana should have acted differently “as a doctor” and especially should have set an example for others.176 From this judgment, it can be surmised that doctors are at times held to higher standards.177

From the judgment by the tribunal in the Doctors’ Trial, the most relevant conclusion for medical war crimes is the importance of the consent of a person to medical procedures, especially experiments. The consent of a patient can never justify or excuse medical war crimes.178 The informed and freely given consent of a patient or research subject is thus a prerequisite for ethical medical conduct. The emphasis on the consent of research subjects (or the lack thereof) can be seen as an indicator of the acceptance of the principle. It was echoed in the

ill’s] harm or injustice”. Translation as used in S.H. Miles, The Hippocratic Oath and the Ethics of Medicine, 2004. The principle of beneficence, on the other hand, entails “a moral obligation to act for the benefit of others”. Beauchamp/ Childress, see note 18, 197.

176 Ntakirutimana Trial Judgment, see note 27, para. 910. 177 See also the judgment in the Frankfurt Euthanasia Trial where it states that:

“Hätte der Angeklagte hohe sittliche Werte und einen starken Berufsethos in sich getragen, so hätte er erkennen müssen, dass das, was dort geschah, weder vom ärztlichen noch vom menschlich-sittlichen Standpunkt aus tragbar war”, see Rüter-Ehlermann/ Rüter, see note 129, 358.

178 Consent of the research subjects was also used as a defense by most of the accused. It was, however, adamantly rejected by the tribunal. See the dis-cussion of defenses below.


German VStGB and the Elements of Crimes to article 8 (2)(b)(x) Rome Statute. Additionally, the judgment in the Doctors’ Trial established the so-called Nuremberg Code. The Nuremberg Code provides ten ethical principles that should be followed when conducting research on human subjects.179

Even though medical war crimes are committed in all armed conflicts, the small number of prosecutions and the silence of courts on the specific medical aspects of such crimes leads to the discouraging conclusion that there is de facto impunity for medical war crimes. The report by the ICRC raises the suspicion that the example of Ntakirutimana is not the only modern example of physicians involved in acts that could amount to medical crimes. Nonetheless, although they should be universally prosecutable pursuant to the above described system, such crimes have so far rarely been prosecuted by international or national tribunals or courts.

VI. Possible Defenses to Medical War Crimes

Like most national systems, international criminal law recognizes two categories of circumstances excluding criminal liability: justifications and excuses.180 A justification is a circumstance whereby an act that vio-lates the law is considered lawful due to special circumstances. An ex-cuse is a circumstance whereby a violation of the law is considered unlawful yet not punishable because the relevant mens rea is lacking.181 For a medical grave breach, the required mens rea is “willfulness”, as es-tablished in article 11 (4) AP I, or to have the requisite “intent and knowledge”, as established in article 30 Rome Statute. Thus it needs to be proven whether the physician’s criminal will was absent when com-

179 The so-called Nuremberg Code can be found in the Judgment itself. The

Doctors’ Trial, Vol. II, 181 – 183, see note 23. The Judgment found that “in the medical experiments which have been proved, these ten principles were much more frequently honored in their breach than in their observance.”

180 This distinction was abandoned in the Rome Statute, choosing “exclusion of criminal responsibility” instead. I. Bantekas, “Defences in International Criminal Law”, in: D. Mcgoldrick et al., The Permanent International Criminal Court - Legal and Policy Issues, 2004, 266.

181 A. Cassese, “Justifications and Excuses in International Criminal Law”, in: Cassese et al., see note 69, 951 – 952.


mitting a medical war crime or whether his actions, though unlawful, should not be punished.

Most defenses against war crimes are based on superior orders, mis-take of fact and duress, or, for medical crimes, on the consent of the vic-tim. Many physicians accused of medical war crimes committed under the Nazi regime, further based their defense on the fact that they had attempted to sabotage the work of the Nazis and had cooperated so that they could somehow improve the conditions of those persons in their care.182 This defense will not be discussed as it lacked a legal element and often, additionally, was not credible. An analysis of the legally rele-vant excuses and justifications will be carried out below.

1. Superior Orders

Even though nothing can or should diminish the inhumanity of the ex-periments and the guilt of those persons in charge of and conducting them, the defense of several of the physicians in the Doctors’ Trial that they had been unable to disobey orders given by superiors cannot be ignored.183 The defense was aimed at negating liability due to the im-possibility to disobey orders by superiors.

The defense of “superior orders” has rarely been recognized in in-ternational criminal law.184 After World War II, article 8 Nuremberg Charter and article II (4)(b) Control Council Law No. 10 denied this defense and, as a slight deviation from the principle of absolute liability, established superior orders as a mitigating circumstance.185 Article 7 (4)

182 This defense only succeeded for Lucas in the Frankfurt Auschwitz Trial

due to the credibility of his animosity. See Rüter-Ehlermann/ Rüter, see note 129, 620.

183 For example, the Doctors’ Trial, Vol. II, Final Statement of Defendant Fischer, 169 – 170, see note 23.

184 A rare example is the Supreme Court of Leipzig, Judgment in Case of Commander Karl Neumann [“The Dover Castle Case”], Judgment, 4 June 1921, AJIL 16 (1922), 707 – 708. In the Llandovery Castle Case the defense of superior orders was denied as the attack on the shipwrecked survivors was manifestly illegal. Supreme Court of Leipzig, Judgment in Case of Lieutenants Dithmar and Boldt [‘The Llandovery Castle Case’], Judgment, 16 July 1921, AJIL 16 (1922), 721 – 722.

185 Article II (4)(b) Control Council Law No. 10, see note 120: “The fact that any person acted pursuant to the order of his Government or of a superior


ICTY Statute and article 6 (4) ICTR Statute followed this line, as does customary international law.186 Article 33 Rome Statute re-introduced the defense of superior orders yet limited it according to the “manifest illegality principle.”187 Superior orders can excuse war crimes when the perpetrator was under a legal obligation to obey the order, did not know the order was unlawful, and the order was not manifestly unlaw-ful. An order is manifestly unlawful if “a layman with only a basic knowledge of international humanitarian law should have considered the action to be unlawful and to constitute a punishable crime.”188 Thus only if ignorance is excusable, can liability be denied.189 It remains to be seen whether the Rome Statute’s approach will affect customary inter-national law.

For the defense to succeed, the physician has to have been in a supe-rior-subordinate relationship with the person ordering the unlawful deed190 and the order has to have resulted in a legal obligation. Yet an order to carry out an unwarranted medical procedure, a non-consensual experiment, or a mutilation is always manifestly unlawful.191 Not only would such “medical” procedures violate medical ethics, but this should alert physicians that unwarranted medical procedures are war crimes. Moreover, the defense can never succeed “where the one to whom the

does not free him from responsibility for a crime, but may be considered in mitigation.”

186 P. Gaeta, “The Defence of Superior Orders: The Statute of the Interna-tional Criminal Court versus Customary International Law”, EJIL 10 (1999), 172 et seq. Gaeta comes to the conclusion that customary interna-tional law in this respect has emerged, 186.

187 This principle is a compromise between the recognition of the defense per se (the respondeat superior doctrine) and the absolute liability approach. A. Eser, “‘Defences’ in War Crimes Trials”, in: Y. Dinstein/ M. Tabory, War Crimes in International Law, 1996, 259.

188 A. Zimmermann, “Superior Orders”, in: Cassese et al. , see note 69, 970. 189 United States Military Tribunal II-A, United States of America v. Otto Oh-

lendorf, et al. [“The Einsatzgruppen Trial”], Trials of War Criminals Vol. IV, Judgment (9 April 1948), 473.

190 This person could be both military or civilian. Yet in the case of the latter, the civilian superior would have to have a certain degree of control over the physician. Ibid., 480. See also mutatis mutandi, ýelebiüi Trial Judgment, para. 378.

191 C. Garraway, “Superior Orders and the International Criminal Court: Jus-tice delivered or justice denied”, Int’l Rev. of the Red Cross 81 (1999), 785 et seq. (790).


order is given has free latitude of decision whether to accept the order or reject it.”192 The physicians in the cases discussed were generally able to disobey the orders without facing consequences that would have jus-tified the crimes.193 As the problem of superior orders is an undeniable problem for doctors within the military, article 16 AP I has taken up just this point: no person giving medical care can be ordered to act in violation of medical ethics and, possibly secondarily, the laws of war. Under international humanitarian law, physicians are thus at all times justified to disobey an illegal order to commit a medical war crime.194 This means that the defense of superior orders would probably never succeed regarding medical war crimes; it could only act as a mitigating circumstance.195

2. Mistake of Fact

A physician having committed a medical war crime out of an “honest and reasonable belief that there existed factual circumstances making his conduct lawful” could excuse his unlawful conduct based on the de-fense of a mistake of fact.196 Though the Statutes of the ICTR and ICTY do not recognize this defense, article 32 (1) Rome Statute re-introduced the exclusion of criminal responsibility due to a mistake of fact if the mental element of a crime is negated.197 For a physician working in an armed conflict to rely on a mistake of fact defense, he would have to be able to prove that he held the honest and reasonable

192 The Doctors’ Trial, Vol. II, Judgment, 227, see note 23. 193 In the Doctors’ Trial, the defense of superior orders was rejected. Ibid., Vol.

II, Judgment, 227; 263. 194 If despite this a physician feared that not carrying out an order would

threaten his life, he should resort to the defense of duress, as discussed be-low.

195 K. Ambos, “Zur strafbefreienden Wirkung des ‘Handelns auf Befehl’”, Ju-ristische Rundschau 52 (1998), 221 et seq. (225).

196 Cassese, see note 40, 251. The defense of mistake of law aims at a miscon-ception regarding a legal rule or concept. It does not apply here. Eser, see note 187, 267. It was also denied in most trials addressing medical crimes, for example, the Doctors’ Trial, see O. Triffterer, “Article 32: Mistake of Fact or Mistake of Law”, in: Triffterer, see note 71, 897.

197 For a critical evaluation of the Rome Statute’s defense regime, especially re-garding the defense of mistake of fact in article 32 Rome Statute, see Eser, see note 91, 934 – 946.


belief that his actions at the time of the offense were lawful. This lack of willfulness – the required mens rea for medical war crimes – would ne-gate the criminal mens rea.198 The U.S. Court Martial in William L. Calley succinctly restated this principle: “the mistaken belief must be of such a nature that the conduct would have been lawful had the facts ac-tually been as they were believed to be.”199 An example would be the belief that the medical procedure was the standard procedure at the time and the physician was unaware of the detrimental effects on the patient.

In the aftermath of the German Reich, many physicians used the ex-cuse in combination with the defense of superior orders. They argued that the acts they were charged with had been lawful under the law ap-plicable at that time, such as Hitler’s “euthanasia-order”200 which they, at that point in time, believed to be lawful.201 The Landgericht Frank-furt extensively discussed the possible defenses for the actions of the personnel and came to the conclusion, regarding the defense based on Hitler’s “euthanasia order”, that “[e]in Gesetz mit so elementar unsitt-lichem Inhalt ist immer und unter allen Umständen wegen dieses In-halts rechtsungültig.”202

198 Schabas, see note 68, 113. On willfulness as the mental element for medical

war crimes, see Dörmann, see note 42, 233, 239. 199 U.S. Army Court of Military Review, United States v. William L. Calley,

Opinion and Action on Petition for New Trial, 16 February 1973, Court-Martial Report 46 (1973), 1131 (1179).

200 Though dated 1 September 1939, the order is believed to have been signed by Hitler in October 1939. E. Klee, “Euthanasie” im NS-Staat, 1983, 100 – 101 <http://www.ns-archiv.de/medizin/euthanasie/faksimile/>.

201 For example, in the Frankfurt Euthanasia Trial, see Rüter-Ehlermann/ Rüter, see note 129, 347. And in the Dresden Euthanasia Trial, see Rüter, see note 27, 501, 507.

202 This statement is taken from the Judgment in another “euthanasia” case by the Landgericht Frankfurt, Rüter-Ehlermann/ Rüter, see note 129, Lfd. Nr. 014, 254. In the Frankfurt Euthanasia Trial, the Court relied on concepts emanating from natural law to explain the inherently unlawful nature of certain laws. Rüter-Ehlermann/ Rüter, see note 129, Lfd. Nr. 017, 348. This, naturally, echoes the Radbruch Formula which entailed that if “der Wider-spruch des positiven Gesetzes zur Gerechtigkeit ein so unerträgliches Maß erreicht” the respective law as “unrichtiges Recht” would have to give way to justice. G. Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht”, Süddeutsche Juristen-Zeitung 1 (1946), 105 et seq.


A further defense based on mistake of fact was that the medical and scientific experiments had been a substitute for the punishment of con-victs.203 Physicians in the Doctors’ Trial argued that convicted criminals were spared punishment if they agreed to participate in “medical” ex-periments204 or that the research subjects were “condemned to death and in any event marked for legal execution.”205 The argument was rightfully rejected in the judgment.206 Firstly, the research subjects were not criminals and even if they had been, no person would ever deserve being treated as the research subjects were. Here, the mens rea could not be denied and there could not have been an honest and mistaken belief in the lawfulness of such actions. To honestly consider unwar-ranted medical procedures and experiments, that every sane person would consider inhuman, to be lawful, would never succeed as a mis-take of fact defense with regard to medical war crimes.

3. Necessity and Duress

The defenses of necessity and duress are closely connected, and often confused with each other or with other defenses.207 Both rely on the fact that the defendant had “no viable moral choice”208 to act because of compelling overall circumstances (necessity) or compulsion emanating from another person (duress). Duress, requiring the threat of severe and irreparable harm to life and limb, is narrower than necessity.209 In the

203 This defense relates to the defense of consent, see below. 204 For example as argued by Ruff, Romberg and Weltz. The Doctors’ Trial,

Judgment, Vol. II, 273 – 274, see note 23. 205 As argued, among others, by Gebhardt to excuse the sulfanilamide experi-

ments, ibid., Vol. II, 224; 227. 206 Ibid., Vol. II, 44 – 49. Nill-Theobald wrongly claims that Romburg, Ruff

and Weltz were acquitted based on the mistaken belief that their research subjects were convicted criminals. (C. Nill-Theobald, “Defence” bei Kriegsverbrechen am Beispiel Deutschlands und der USA, 1998, 342). The reason for acquittal was, however, insufficient proof. The Doctors’ Trial, Judgment, Vol. II, 275 – 276, see note 23. Equally, see the Milch Trial, see note 138, 837.

207 A. Eser, “Article 31: Grounds for excluding Criminal Responsibility”, in: Triffterer, see note 71, 884, para. 49.

208 Schabas, see note 68, 113. 209 ICTY Prosecutor v. Dražen Erdemoviü, Appeals Chamber Judgment, 7

October 1997, Dissenting Opinion Judge Cassese, para. 50.


current international criminal doctrine, duress as a defense to war crimes is highly contested.210 It is agreed that customary law is lack-ing,211 but the consequences drawn from this conclusion for the defense of duress, especially cases involving the death of the victim(s), can be quite different.212 Pursuant to article 31 (1)(d) Rome Statute necessity and duress, conflated into a single defense, are admissible defenses be-fore the ICC. A successful defense has to meet three criteria: (a.) an imminent threat, (b.) a necessary and reasonable reaction,213 and (c.) a subjective “lesser-evil balancing.”214 In order to justify an action, the threat must have been “imminent, real and inevitable.”215

A related question is that of a defense based on superior orders combined with duress: a superior order can cause a circumstance under which the perpetrator was unable to make a moral choice. Disobedience to a military order incurs consequences in most military criminal legis-lations.216 For the defense to succeed the stricter duress prerequisites have to be met.217

210 The ICTY Appeals Chamber did not allow the defense of duress to be used

as a complete defense against a charge of murder as a war crime. Ibid., Joint Separate Opinion of Judges McDonald and Vorah, regarded as the majority opinion, para. 75. Critical appraisals of the Judgment can be found in Dis-senting Opinions of Judges Stephen (para. 66) and Cassese (para. 18); in lit-erature J.C. Nemitz/ S. Wirth, “Legal Aspects of the Appeals Decision in the Erdemovic-case: the Plea of Guilty and Duress in International Hu-manitarian Law”, Humanitäres Völkerrecht 11 (1998), 43 et seq.; S.C. Newman, “Duress as a Defense to War Crimes and Crimes against Hu-manity - Prosecutor v. Dražen Erdemoviü”, Mil. L. Rev. 166 (2000), 158 et seq. (164).

211 Erdemoviü Appeals Judgment, Judges Vorah and McDonald, para. 55; Judge Stephen, para. 24 and Judge Cassese, para. 40.

212 This ambivalence was demonstrated by the ICTY Erdemoviü Judgment, see note 210. According to Dinstein’s view on the Erdemoviü Judgment, “there is no excuse for the deprivation of the victim’s life only because the accused felt he had to act in order to save his own life.” Y. Dinstein, “De-fences”, in: Mcdonald/ Swaak-Goldman, see note 125, 375.

213 The proportionality requirement was thus eased. Eser, see note 207, 886 – 887, para. 59.

214 For a useful analysis, consult K. Ambos, “Other Grounds for excluding Criminal Responsibility”, in: Cassese et al., see note 69, 1035 et seq.

215 The Einsatzgruppen Trial, 480. In casu, the duress defense was tied into the defense of superior orders.

216 For example, arts 89, 127, 130 of the Dutch Military Criminal Code (Wet Militair Strafrecht) unless the order concerned an “unlawful act” (article


The defense of duress would only lead to an acquittal if the situation that caused a physician to commit a medical war crime fulfilled the cri-teria above. The physician accused of a medical grave breach would have to prove that his life was threatened by another, he had not volun-tarily placed himself in the situation of duress, and had complied to avert (greater) danger. For example, he did not mean to harm the patient but was forced due to compulsion by another person or due to an im-minent threat.218 Looking at possible medical war crimes, involvement in torture or ill-treatment, unwarranted medical treatments and experi-ments, and the denial of medical care, it is not very probable that a phy-sician could argue that he could not have refused to carry them out and that his life would have been in immediate danger. These are procedures that require preparation and time – time that a physician could use to re-think his actions or to object. Only when his life was directly threat-ened in the very moment of treatment, for example by a gun pointed at the physician, would the defense of duress be plausible. The post World War II courts addressing medical war crimes denied the defense of du-ress because none of the doctors were ever actually punished (for ex-ample by internment in a concentration camp or execution) for refusing to participate in the (medical) war crimes.219

Several physicians in the post World War II trials reverted to a de-fense based on the “necessity of the state.” Because Germany was losing many soldiers involved in “a life and death struggle” in the field, the situation called for drastic measures. The effects of certain weapons had to be studied and this required experimentation on human subjects. The individual interests of the “convicted inmates” were evaluated as infe-rior to the public interest of the nation.220 International criminal law

131). Equally, for Germany consult article 11 Code for Soldiers (Soldatengesetz), article 144 of the German Military Manual and § 5 Wehrstrafgesetz (Military Law).

217 P. Rowe, “Duress as a Defence to War Crimes after Erdemoviü: A Labora-tory for a Permanent Court?”, Yearbook of International Humanitarian Law 1 (1998), 210 et seq. (216).

218 Schabas, see note 68, 113. 219 Concerning the Frankfurt Auschwitz Trial, I. Sagel-Grande et al., Justiz

und NS-Verbrechen - Sammlung deutscher Strafurteile wegen National-sozialistischer Tötungsverbrechen 1945 - 1966, 1979, Lfd. Nr. 595, 617 – 618; Concerning the Frankfurt Euthanasia Trial, Rüter-Ehlermann/ Rüter, see note 129, 354.

220 The Doctors’ Trial, Vol. II, see note 23, 11, 29.


then and now does not recognize the defense of state necessity.221 Ne-cessity is a threat “to life and limb emanating from objective circum-stances”222 which is not the case when the state is threatened.

4. Consent of the Patient

A defense that was used by several physicians in the trials after World War II was that of consent. They argued that because the research sub-ject or patient (or possibly his family) had consented to the “medical” procedures or experiments, the physician should not be found guilty of carrying them out. All courts and tribunals rightfully rejected this de-fense.223 Acceptance of it would have created a dangerous precedent, not to mention the difficulty of establishing whether a person can ever consent to unwarranted medical procedures and at what point consent is to be considered voluntary and informed.224 This conclusion is in line with article 11 AP I and article 8 (2)(b)(x) Rome Statute. Article 11 (2) AP I determines that the prohibited procedures are still not justified when the person to be subjected to the procedure has consented. This principle which applies to “all medical acts which are not performed in

221 Eser, see note 187, 262. However, the argument is still raised to justify

medical involvement in “interrogational torture”, especially when faced with terrorist threats. For example, by M.L. Gross, Bioethics and Armed Conflict: Moral Dilemmas of Medicine and War, 2006.

222 Cassese, see note 40, 243. 223 The Milch Trial, Judgment, see note 138, 776. 224 Eser, see note 187, 266 – 267. Here, the international case law and literature

on consent to sexual crimes can be helpful. That coercive circumstances ne-gate consent was established in ICTR Prosecutor v. Jean-Paul Akayesu, Trial Chamber Judgment of 2 September 1998, para. 688 and included in the Elements of Crimes to article 8 (2)(b)(xxii) Rome Statute according to which genuine consent cannot be given when the act was “committed by force, or by threat of force or coercion, such as that caused by fear of vio-lence, duress, detention, psychological oppression or abuse of power”. See the analysis by Dörmann, see note 42, 325. It could be argued, as is the case with the crime of rape, that “[t]he manifestly coercive circumstances that exist in all armed conflict situations establish a presumption of non-consent and negate the need for the prosecution to establish a lack of consent as an element of the crime.” Final Report of the Special Rapporteur of the Work-ing Group on Contemporary Forms of Slavery. Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, Doc. E/CN.4/Sub.2/1998/13 of 22 June 1998, para. 25


the interests of the person undergoing the treatment” was expressly in-cluded to “prevent any possibility of justification on such grounds.”225 The same is true for the Rome Statute. The Elements of Crimes con-cisely state that “[c]onsent is not a defence [sic] to this crime.”226

Due to the fact that actions prosecuted as medical war crimes are mostly inherently inhuman and manifestly unlawful, valid and justified defenses for medical war crimes are rare. It is imaginable that a physi-cian charged with a medical war crime claims that his actions, though seemingly unlawful, were medically sound and necessary. The physician would have to prove that he considered the procedure ethically, medi-cally and legally sound. This would be a mistake of fact. So far, such a defense has not been raised in the cases discussed and is also highly unlikely: offenses that meet the criteria for medical war crimes consist of behavior that would classify as manifestly unlawful and would probably equally violate medical ethics. In combination with the ex-plicit grant of disobedience in article 16 AP I, it is unlikely that a tradi-tional defense will ever succeed concerning medical war crimes.

VII. Conclusion

Medical war crimes constitute a distinct category besides regular inter-national crimes and even besides war crimes. Never defined as such by courts or tribunals, it can nonetheless be inferred from the sparse case law and certain implementations in international and national criminal legislation that war crimes by physicians committed in a medical con-text represent a separate category. These crimes, prosecuted as crimes against humanity when committed against physicians’ own people, con-sist of willful acts by physicians that seriously endanger the medical health or integrity of a person of the adversary who is deprived of his liberty and are committed by physicians when carrying out their medi-cal duties in an armed conflict. Arguably, such crimes are always in violation of medical ethics and, vice versa, a violation of medical ethics may also be an indicator for such a crime. Often, the lack of consent of the person concerned is an indica-tor as to the lack of justification for a procedure. Nevertheless, consent

225 And “to prevent pressure being improperly exerted on the persons con-

cerned here to obtain their consent”. Sandoz et al., see note 17, para. 484. 226 Elements of Crimes, see note 32, 25.


can also never be used as an excuse for an unwarranted medical proce-dure.

So far, the concept of medical international crimes was used and de-veloped by the courts in the aftermath of World War II when the atroci-ties committed by physicians in the name of science and medicine, the killing of life “unworthy of living”, or torturous, non-consensual and involuntary experiments, came to light. Hence, physicians were also specifically prosecuted for these heinous crimes. It would have been in-sightful had the Nuremberg Military Tribunal explicated what makes these crimes different from other crimes because medical crimes are in-deed different from other crimes: the accused are held to higher stan-dards than regular people and often ethical codes, such as the ancient Hippocratic Oath, or principles, such as the principle of autonomy, play a role. The essential elements of medical crimes should thus be devel-oped to see exactly what role medical ethics play in such crimes, whether courts can more clearly define when a medical procedure is criminal and when it is justified, and what role the consent of the pa-tient can, does or should play.

These are only some of the questions that should be answered and developed to ensure that medical crimes are adequately addressed.

Certainly, this article does not propose to introduce medical war crimes as a separate or new category of crimes. As envisaged by AP I, medical crimes should be prosecuted as war crimes. Yet the article does propose to take the concept and especially the perpetrators seriously. Even though the Rome Statute has regrettably only criminalized un-warranted mutilations and experiments, this was fortunately done for both international and non-international armed conflicts. Still, the Rome Statute could have provided a basis for prosecutions for all un-warranted medical procedures as conducted by physicians on persons deprived of their liberty during an armed conflict. This would then also have provided a basis for the prosecution of physicians involved in the ill-treatment of detainees during interrogations. Some of the acts alleg-edly committed by physicians would meet the requirements of medical war crimes: namely the medical supervision of ill-treatment227 or the medical examination to assess fitness for interrogation.228

227 The ICRC Report, see note 4, 21 – 23. 228 This does not include the usual psychological assessment of detained per-

sons by psychiatrists or psychologists.


Other acts would be mere violations of medical ethics, such as the signing of death certificates for false reasons or not reporting violations of international humanitarian law or human rights law.229

Deplorable as such acts may be, they would not meet the require-ments of medical war crimes because they hardly seriously endanger the health or integrity of a person.230 Surely, those crimes could be prose-cuted as regular war crimes under the provisions prohibiting inhuman treatment. However, the conclusion of this article must be that if prose-cuted, these crimes should be prosecuted as medical war crimes. Physi-cians who willfully commit war crimes while carrying out their medical work, wearing their medical attire, and seemingly adhering to their medical ethics, including the principle of beneficence and non-maleficence, should not be granted impunity.

229 This is alleged by Physicians for Human Rights. Physicians for Human

Rights claims that until there is a thorough, impartial investigation into the alleged torture and ill-treatment, “the ethical integrity of medical and other healing professions remains compromised”. See Physicians for Human Rights, Neglect of Medical Evidence of Torture in Guantánamo Bay: A Case Series, April 2011, 4.

230 Although, by not reporting violations, a physician may perpetuate the abuse and thus endanger the health of the persons subjected to such treat-ment. Whether this would meet the criteria for a medical war crime would depend on the exact circumstances.

Commonwealth of Independent States – Is There Any Chance to Establish an Effective System of Collective Security in the Region?

Alena Douhan



Preface I. Regional Arrangements and the Maintenance of International Peace and

Security 1. Security in the International Framework 2. Notion and Characteristics of Regional Arrangements under Chapter

VIII of the UN Charter 3. Regionalism and Territorial Constraints 4. Criteria and Qualification 5. Competence 6. Usual Activities of Regional Arrangements 7. Cooperation between the United Nations and Regional Arrangements

II. The OSCE, CIS and CSTO as Regional Arrangements under Chapter VIII of the UN Charter 1. Criteria and Qualification 2. The OSCE Activity 3. The CIS Activity 4. The CSTO Activity 5. Cooperation with the United Nations, Regional and Other Organiza-tions

III. Conclusion

Douhan, Commonwealth of Independent States 283

Preface

In spite of the initial enthusiasm about the UN Security Council in the early 1990s, it appeared unable to settle an enormous number of inter-nal and interstate conflicts arising in all parts of the world and to handle new threats and challenges faced by the international community. As a result, regional and sub-regional organizations have increasingly as-sumed responsibility for the maintenance of international peace and se-curity. The disintegration of the former Soviet Union gave rise to a vari-ety of conflicts that are still not fully settled despite various efforts of the United Nations and regional organizations. Next to the Common-wealth of Independent States (hereafter, CIS),1 so-called “newly emerged” states participate in a range of other organizations involved in maintaining international peace and security.2 Their efforts and activi-ties are, however, often duplicated and dichotomized.

In light of the basic need to establish an effective system of collective regional security, it seems necessary to decide on the possible involve-ment, distribution of power and tasks between the United Nations, OSCE, CIS and the Collective Security Treaty Organization (CSTO) in maintaining peace and security in the region along or through current and prospective mechanisms of cooperation. The need for research in this area is even more substantial in view of the absence of legal studies on the situation3 and a focus thus far on traditional aspects of regional security4 with very little regard to new prospects and challenges.

1 Currently 11 former republics of the Soviet Union participate in the CIS

(Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russian Federation, Tajikistan, Turkmenistan, Ukraine, Uzbekistan).

2 All former republics of the former USSR are currently members of the United Nations and the Organization for Security and Cooperation in Europe (hereafter, OSCE), available at <http://www.osce.org>; seven of them (Armenia, Belarus, Kazakhstan, Kyrgyzstan, Russian Federation, Ta-jikistan, Uzbekistan) are members of the Collective Security Treaty Or-ganization (CSTO); five of them (Kazakhstan, Kyrgyzstan, Russian Fed-eration, Tajikistan, Uzbekistan) are members of the Shanghai Cooperation Organization (SCO).

3 See e.g. N. Bordyuzha, “Organizatsija Dogovora o Kollektivnoj Bezopas-nosti (The Collective Security Treaty Organization)”, International Life 2005, 72 et seq.; N. Bordyuzha, “The Collective Security Treaty Organiza-tion: A Brief Overview”, OSCE Yearbook 16 (2010), 339 et seq.; V. Ni-


To answer the question posed in the title of the present article, it is necessary to explore some general issues of regional cooperation and ac-tivity under Chapter VIII of the UN Charter, and to evaluate the status, competences, tasks and activities of the OSCE, CIS and CSTO in the existing legal framework.

I. Regional Arrangements and the Maintenance of International Peace and Security

1. Security in the International Framework

The history of collective security can be traced back to the agreements on collective defense5 and bi- and multilateral non-aggression pacts.6 The UN system, which was a significant development, combines both suppressive and preventive mechanisms as a means of maintaining in-

kolaenko, “10 let Dogovora o Kollektivnoj Bezopasnoati (10 Years of the Treaty of Collective Security)”, International Life 2003, 60 et seq.; A.L. Rekuta, “The Collective Security Treaty Organization: Challenges and Per-spectives of Development to Prevent the Threats to Security in the Central-Asian Region”, Military Thought 11 (2006), 2 et seq.

4 A. Abass, Regional Organizations and the Development of Collective Secu-rity: Beyond Chapter VIII of the UN Charter, 2004; T.G. Weiss (ed.), UN Subcontracting: Task-Sharing with Regional Security Arrangements and Service-Providing NGOs, 1998; C.J. Borgen, “The Theory and Practice of Regional Organization in Civil Wars”, N.Y.U.J. Int’l L.& Pol. 26 (1994), 799 et seq.; V. Heiskanen, “The Rationality of the Use of Force and the Evolution of International Organization”, in: J.M. Coicaud/ V. Heiskanen (eds), The Legitimacy of International Organizations, 2001, 155 et seq.; H. Körbs, Die Friedenssicherung durch die Vereinten Nationen und Regional-organisationen nach Kapitel VIII der Satzung der Vereinten Nationen, 1997; K. Lind, The Revival of Chapter VIII of the UN Charter: Regional Organizations and Collective Security, 2004.

5 T.G. Weiss/ D.R. Forsythe/ R.A. Coate/ K.K. Pease, The United Nations and Changing World Politics, 5th edition 2007, 4; L.M. Goodrich/ E. Hambro, Charter of the United Nations: Commentary and Documents, 1946, 183; K. Herndl, “Reflections on the Role, Functions and Procedures of the Security Council of the United Nations”, RdC 206 (1987), 302.

6 K. Doehring, “Collective Security”, in: R. Wolfrum (ed.), United Nations: Law, Politics and Practice, Vol. I, 1995, 110 et seq.


ternational peace and security.7 In the aftermath of World War II, how-ever, security was approached very narrowly, basically as the lack of in-terstate military conflicts.8 Subsequent developments though demon-strated, that international peace and security depend on numerous fac-tors and processes. A military conflict can result from a variety of rea-sons, economic, humanitarian, ideological, etc.

Moreover, the international community presently faces a variety of new threats and challenges which include, inter alia, international ter-rorism, the proliferation of weapons of mass destruction, illicit traffick-ing of arms, drugs and human beings, illegal migration, cyber-threats, etc.9 These trends have found their way into a range of UN Security Council resolutions addressing threats to international peace and secu-rity, civil rivals within a country,10 gross violations of human rights, genocide,11 illegitimate anti-democratic governments and their re-gimes,12 destabilization of a situation by huge refugee flows,13 the pro-

7 See N. Elaraby, “Some Reflections on the Role of the Security Council and

the Prohibition of the Use of Force in International Relations: Article 2 (4) Revisited in Light of Recent Development”, in: J.A. Frowein (ed.), Ver-handeln für den Frieden, 2003, 42.

8 Documents of the UN Conference on International Organization, Vol. III, 1945, 434-440. See also Doehring, see note 6, 110, 112; F. Evers/ M. Kahl/ W. Zellner, The Culture of Dialogue: The OSCE Acquis 30 Years after Hel-sinki, 2005, 17.

9 Charter of Paris for a New Europe 1990; Astana Commemorative Declara-tion “Towards a Security Community”, 2010, para. 9; Corfu Informal Meeting of OSCE Foreign Ministers on the Future of European Security, Chair’s Concluding Statements to the Press, para. 4 – all decisions available at <http://www.osce.org>; Report of the High-Level Panel on Threats, Challenges, and Change, A More Secure World: Our Shared Responsibility, Doc. A/59/565 of 2 December 2004, 14-16 (paras 17-23); Strategic Concept for the Defence and Security of the Members of the North Atlantic Treaty Organization, paras 4, 8-15, available at <http://www.nato.int>. See also M. Roscini, “World Wide Warfare – Jus ad bellum and the Use of Cyber Force”, Max Planck UNYB 14 (2010), 85 et seq.

10 S/RES/161 (1961) of 21 February 1961. 11 S/RES/775 (1992) of 28 August 1992; S/RES/929 (1994) of 22 June 1994;

S/RES/940 (1994) of 31 July 1994. 12 S/RES/221 (1966) of 9 April 1966. 13 S/RES/812 (1993) of 12 March 1993.


liferation of arms and ammunition in the course of civil conflicts,14 ter-rorism,15 etc.

The OSCE advocates a broader vision of security. Its original atten-tion to cooperation in the fields of economy, science, technology and environment (Helsinki Final Act 1975)16 evolved later into three dimen-sions of security: political-military, economic-environmental, and hu-man.17 It is not the purpose of this article to argue on behalf of a par-ticular vision, still an emphasis is made on the political-military aspects of security. Meanwhile, regional arrangements acting under Chapter VIII as an inalienable element of the universal system of collective secu-rity18 have to adapt their functions and tasks to face the proliferation of threats to international peace and security.

2. Notion and Characteristics of Regional Arrangements under Chapter VIII of the UN Charter

The possible existence and usefulness of regional arrangements as a means of maintaining international peace and security had already been recognized, to a certain extent, in the Covenant of the League of Na-tions which stated “Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings ... for securing the maintenance of peace” (Article 21).19 It later found its way into Chapter VIII of the UN Char-

14 S/RES/775 (1992), see note 11. 15 S/RES/1373 (2001) of 28 September 2001; S/RES/1511 (2003) of 16 Octo-

ber 2003. 16 Helsinki Final Act of 1 August 1975. 17 See OSCE Factsheet “What is the OSCE”, available at <http://www.osce.

org>; Evers/ Kahl/ Zellner, see note 8, 17-51; D.W. Evers, “The Future of the OSCE”, OSCE Yearbook 9 (2003), 25; Astana Commemorative Decla-ration, see note 9, para. 6.

18 See Documents of the UN Conference on International Organization, Vol. III, see note 8, 80, 257, 274, 288, 353, 397, 434-440; ibid., Vol. I, 1945, 364-371; ibid., Vol. XII, 1945, 765; see also U. Beyerlin, “Regional Arrange-ments”, in: Wolfrum, see note 6, Vol. II, 1040 et seq. (1051); C. Schreuer, “Regionalization”, ibid., Vol. II, 1059 (1059 et seq.); Weiss et al., see note 5, 18.

19 Article 21 stated “Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or re-gional understandings … for securing the maintenance of peace.”


ter, which, however, contains neither a definition nor clear characteris-tics of regional arrangements or agencies.

The narrow definition proposed by Egypt during the deliberation of the Charter limited regional arrangements to “organizations of perma-nent nature, grouping in a given geographical area several countries which, by reason of their proximity, community of interests or cultural, linguistic, historical or spiritual affinities, make themselves jointly re-sponsible for […]”,20 but this was not accepted. No definition finally was introduced in the Charter in order to extend the rules of Chapter VIII over all possible structures of cooperation,21 including treaties of mutual assistance and unions of non-neighbor countries22 regardless of their ad hoc or permanent character.23 The legal regime of Chapter VIII extends over all these forms.24 Currently, activities in the sphere of the maintenance of international peace and security are mostly exercised by international organizations, so that the term “regional organizations” is basically used in conjunction with Chapter VIII functions.25

20 Documents of the UN Conference on International Organization, Vol. III,

see note 8, 460-461. 21 Documents of the UN Conference on International Organization, Vol.

ɏII, see note 8, 701; see also Goodrich/ Hambro, see note 5, 184; W. Hummer/ M. Schweitzer, “Article 52”, in: B. Simma (ed.), The Charter of the United Nations: A Commentary, 2nd edition, Vol. 1, 2002, 817; C. Wal-ter, “Security Council Control over Regional Action”, Max Plank UNYB 1 (1997), 129 et seq. (131-132).

22 Goodrich/ Hambro, see note 5, 184; Commission to Study the Organiza-tion of Peace: Regional Arrangements for Security and the United Nations. Eighth Report and Papers Presented to the Commission, 1953, 19-22.

23 Weiss et al., see note 5, 19; Beyerlin, see note 18, 1040; Hummer/ Schweitzer, see note 21, 817.

24 In theory, attempts have been made to distinguish between them on the ba-sis of their institutional structure. See M. Akehurst, “Enforcement Action of Regional Organizations with Special Reference to the Organization of American States”, BYIL 42 (1967), 175 et seq. (178); M. Alagapa, “Regional Arrangements, the UN and International Security: A Framework for Analysis”, in: T. Weiss (ed.), Beyond Subcontracting: Task Sharing with Re-gional Security Arrangements and Service-Providing NGOs, 1998, 6.

25 Supplement to an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Na-tions, Doc. A/50/60-S/1995/1 of 3 January 1995; Security Council Update Reports “The United Nations and Regional Organizations” of 18 Septem-ber 2006 No. 3; of 27 March 2007 No. 3; World Summit Outcome, A/RES/60/1 of 16 September 2005, para. 170.


3. Regionalism and Territorial Constraints

The wording of Arts 52-53 of the UN Charter could be literally inter-preted as restricting the types and activities of regional arrangements on geographical or territorial grounds. In particular, Article 52 para. (1) recognizes the existence of “regional” arrangements or agencies for dealing with matters which are appropriate for “regional action”. The pacific settlement of “local” disputes (Article 52 para. (2)) is viewed as their primary concern.

Although both the San Francisco documents and legal doctrine mention geographical proximity as a usual characteristic of regional ar-rangements, neither one considers it to be the ultimate one.26 The dis-tinction between regional and sub-regional organizations27 does not af-fect the exercise of their powers under Chapter VIII. It appears that re-gional arrangements under Chapter VIII should currently be viewed as distinct from the universal ones, that is, as organizations with limited membership. Two other characteristics, “appropriate for regional ac-tion” and “local disputes”, mostly concern the territorial sphere and competences of regional arrangements – in particular: can an arrange-ment or agency be entitled to act beyond its territory? Are there any specifics in the peaceful settlement of local disputes and the involve-ment in matters appropriate for regional action? Can a regional ar-rangement be utilized by the UN Security Council for enforcement ac-tion under the Council’s authority beyond its territory?

As opposed to “local disputes” which are clearly viewed as disputes between Member States of regional arrangements,28 neither the UN Charter nor the San Francisco documents specify which matters are to 26 Weiss et al., see note 5, 18-19; Schreuer, see note 18, 1059; Beyerlin, see note

18, 1040; H. Kelsen, “Is the North Atlantic Treaty a Regional Arrange-ment”, AJIL 45 (1951), 162 et seq.; Hummer/ Schweitzer, see note 21, 820-821; Abass, see note 4, 10-11, 13; Documents of the UN Conference on In-ternational Organization, Vol. III, see note 8, 82, 214, 256; ibid., Vol. I, 371; Commission to Study the Organization of Peace, see note 22, 20.

27 2005 World Summit Outcome, see note 25, para. 170; S/RES/1631 (2005) of 17 October 2005; Statement by the President of the Security Council Doc. S/PRST/2010/1; Security Council 6257 Mtg, Doc. S/PV.6257, Cooperation between the United Nations and Regional and Sub-regional Organizations in Maintaining International Peace and Security, speech of the Secretary-General of the League of Arab States A. Moussa; Security Council Update Report of 18 September 2006 No. 3, see note 25.

28 See Goodrich/ Hambro, see note 5, 185; Abass, see note 4, 31.


be considered as “appropriate for regional action”. Some states29 and authors30 have intended to limit such matters to those which require ac-tion only within the territory of the Member States of an organization. The present author would like, however, to join those who stand for the opposite view,31 since peace and security in a region can be endangered by events or activities both within and beyond its respective borders. It is illustrative that this approach has been implemented in recent docu-ments of regional arrangements.32 In the absence of clear provisions re-gional arrangements can decide independently which matters beyond their territories could be appropriate for regional action.

The qualification of disputes as “local” and matters as “appropriate of regional action” has a practical rather than merely a theoretical im-pact. It is generally agreed that regional arrangements enjoy priority in the peaceful settlement of local disputes.33 It is believed here, however, that Article 52 para. (1) of the UN Charter has to be interpreted accord-ing to article 30 para. (2) of the Vienna Convention on the Law of Trea-ties.34 As a consequence regional arrangements shall enjoy priority in dealing with “matters relating to the maintenance of international peace and security as are appropriate for regional action” subject only to the limitations arising out of Article 103 UN Charter,35 including Arts 34 and 35 of the Charter.36

29 Documents of the UN Conference on International Organization, Vol. III,

see note 8, 284. 30 See Beyerlin, see note 18, 1043; Doehring, see note 6, 110; Hummer/

Schweitzer, see note 21, 821; Walter, see note 21, 176. 31 Kelsen, see note 26, 163; N. Bentwich/ A. Martin, A Commentary on the

Charter of the United Nations, 1950, 109. 32 See e.g. NATO Strategic concept 2010, paras 11, 20, see note 9; Treaty of

the European Union (with Lisbon Treaty), article 42 (1), available at <http://eur-lex.europa.eu/>; Dogovor o Kollektivnoj bezopasnosti (Treaty of Collective Security) of 15 May 1992 (TCS) (with Protocol of 10 Decem-ber 2010), Electronic Legal Database Konsul’tant Plus: Technologiia 3000.

33 Documents of the UN Conference on International Organization, Vol. III, see note 8, 215, 234, 241, 525; Abass, see note 4, 32-33; Schreuer, see note 18, 1063.

34 Vienna Convention on the Law of Treaties, UNTS Vol. 1155 No. 18232. 35 See R. Bernhardt, “Article 103”, in: Simma, see note 21, Vol. 1, 2002, 1295-

1296, 1298; S/RES/660 (1990) of 2 August 1990; S/RES/713 (1991) of 25 September 1991; S/RES/724 (1991) of 15 December 1991; S/RES/787 (1992) of 16 November 1992; S/RES/1127 (1997) of 28 August 1997;


The competence of the UN Security Council to utilize regional ar-rangements under its authority is not limited to territorial grounds.37 In practice, however, the UN Security Council takes due account of the political will of a regional arrangement to take part in the settlement of a conflict, its competences and available resources.38 Moreover, until now the UN Security Council has never utilized a regional arrangement or agency to undertake any sort of activity39 but rather has authorized states “acting independently or through regional organizations.”40

4. Criteria and Qualification

Because the characteristics of regional arrangements or agencies are left very uncertain in the UN Charter and no mechanism for assessment is provided, the qualification of a particular organization as falling under the Chapter VIII requirements often entails debate. Until recently, some academics insisted that only the Organization of American States (OAS) can be qualified as a regional arrangement.41 Others argued that NATO and the Warsaw Pact Organization should be excluded as being

S/RES/1298 (2000) of 17 May 2000, etc.; Military and Paramilitary Activi-ties in and against Nicaragua, ICJ Reports 1984, 392 et seq. (440).

36 Beyerlin, see note 18, 1041; Bentwich/ Martin, see note 31, 112; Hummer/ Schweitzer, see note 21, 842; Military and Paramilitary Activities, see note 35, 440, para.108.

37 See also Bentwich/ Martin, see note 31, 113; Abass, see note 4, 62. The op-posite opinion has been expressed by Chile at the San Francisco Confer-ence, Documents of the UN Conference on International Organization, Vol. III, see note 8, 284.

38 See G. Wilson, “Regional Arrangements as Agents of the UN Security Council: Some African and European Organizations Contrasted”, Liver-pool Law Review 29 (2008), 187 et seq. (189).

39 It usually welcomes efforts of regional organizations – see e.g. S/RES/1423 (2002) of 12 July 2002, para. 20; S/RES/75 (2004) of 22 November 2004, para. 11; S/RES/1150 (1998) of 30 January 1998, preamble; S/RES/1187 (1998) of 30 July 1998, preamble; S/RES/1225 (1999) of 28 January 1999, preamble; S/RES/1371 (2001) of 26 September 2001, preamble.

40 See e.g. S/RES/1031 (1995) of 15 December 1995, paras 14-17, 36; S/RES/1247 (1999) of 18 August 1999, paras 10-13; S/RES/1575 (2004) of 22 November 2004, paras 10, 14-16; S/RES/1785 (2007) of 21 November 2007, paras 10, 14-16; S/RES/1948 (2010) of 18 November 2010, paras 10, 14-16; S/RES/1973 (2011) of 17 March 2011, paras 4, 8, 15.

41 Doehring, see note 6, 114.


military alliances.42 Currently this approach is not widely supported. After the end of the Cold War, regional organizations drastically changed their approach to the very idea of security, and the shift in their qualifications or characteristics relative to Chapter VIII is remarkable. Currently all or most regional organizations are apprised as falling un-der Chapter VIII of the UN Charter.43 The constituent documents of international organizations usually do not qualify them in one way or the other.44 Many of them have been viewed as regional security or-ganizations by their drafters (e.g. the African Union)45 or developed this vision in their every day activity.46 Nevertheless, no uniform ap-proach has been established so far.47 The United Nations has protract-edly avoided any explicit qualification in this respect. For example, ref-erences to Chapter VIII UN Charter can be found only in three resolu-tions of the UN Security Council with regard to European and Central Asian conflicts.48 The UN General Assembly, although referring to Chapter VIII in resolutions on cooperation with particular regional or-ganizations49 or in general,50 does not further qualify the organizations.

42 L. Gelber, “The Commonwealth and the United Nations”, in: Commission

to Study the Organization of Peace, see note 22, 49; C. Eagleton, “The North Atlantic Treaty Organization”, ibid., 92-93, 96.

43 G. Ress/ J. Bröhmer, “Article 53”, in: Simma, see note 21, Vol. 1, 2002, 862; Abass, see note 4, 23-24; Beyerlin, see note 18, 1043-1045, 1047.

44 Exemption article 1 of the Charter of the Organization of American States of 1948.

45 Abass, see note 4, 35. 46 Protocol relating to the Establishment of the Peace and Security Council of

the African Union of 9 July 2002, preamble. Helsinki Summit Declaration 1992, para. 25, Charter for European Security, November 1999, para. 7; both OSCE documents available at <http://www.osce.org>.

47 Security Council Update Report of 18 September 2006, see note 25. 48 S/RES/757 (1992) of 30 May 1992, preamble; S/RES/787 (1992) of 16 No-

vember 1992, para. 12; S/RES/816 (1993) of 31 March 1993, preamble. 49 On the cooperation with the OSCE – A/RES/47/10 of 28 October 1992;

A/RES/50/87 of 18 December 1995; A/RES/55/179 of 19 December 2000; A/RES/58/55 of 8 December 2003; with CSTO – A/RES/64/256 of 2 March 2009; A/RES/65/122 of 13 December 2010.

50 Declaration on the Enhancement of Cooperation between the United Na-tions and Regional Arrangements or Agencies in the Maintenance of Inter-national Peace and Security, A/RES/49/57 of 9 December 1994; Coopera-tion between the United Nations and Regional and Other Organizations, Report of the UN Secretary-General, Doc. A/65/382-S/2010/490 of 20 September 2010.


The UN General Assembly usually relies on the qualification by an or-ganization itself and expresses its readiness to cooperate with it under Chapter VIII.

Despite the existence of the opposite view in legal doctrine,51 the current author states that expressed qualification of a regional organiza-tion under Chapter VIII by the United Nations or by the organization itself is not a prerequisite for its activity under Chapter VIII of the Charter. The UN Charter, although recognizing some rights of regional organizations, primarily imposes constraints on their activities. It is maintained here that for the purpose of safeguarding the rule of law and world order, regional organizations, arrangements or agencies are bound by the framework of Chapter VIII whenever they are involved in the maintenance of peace and security.52 This rule is not conditioned by the recognition of the status of the organization under Chapter VIII.

5. Competence

As noted above, the UN Charter provides for a general framework of regional activity in the security area. Chapter VIII refers to the peaceful settlement of disputes and endows regional arrangements or agencies with the right for dealing with such matters provided that the activities are consistent with the purposes and principles of the UN Charter. However, most regional organizations involved in security issues are ei-ther invested with broader competences (e.g. the EU and CIS are pri-marily involved in economic and other sorts of cooperation) or do not possess sufficient competences or facilities for dispute settlement or en-forcement action (e.g. the OSCE, the Council of Europe and the EU have no military personnel to accomplish enforcement activity). The question thus arises whether regional organizations can act beyond the methods expressly prescribed by Chapter VIII, and whether they fall

51 E.g. Abass asserts that in the absence of expressed qualification the UN

does not consider an international organization as falling under Chapter VIII, Abass, see note 4, 20.

52 This statement can be illustrated inter alia by the right of the UN Security Council “to utilize regional arrangements and agencies for enforcement ac-tion under its authority” that basically endows it with the competence to decide which arrangement or agency falls under Chapter VIII in the par-ticular case regardless of its competence, structure or stability. On this issue see Wilson, see note 38, 186.


under Chapter VIII when they do not possess competences and/or fa-cilities to fulfill the tasks set forth by the UN Charter.

Military alliances are still a particular case within the UN Charter. A number of authors differentiate regional organizations (security in the region) from military alliances (security against external threats), refer-ring to different purposes and legal foundations (Chapter VII for trea-ties of self-defense and Chapter VIII for regional organizations),53 and do not recognize NATO, OSCE, WEU (Western European Union), EU and others as regional organizations under Chapter VIII of the UN Charter. At the same time, most scholars do not object the existence of mixed systems and qualify NATO and OSCE as regional organizations due to the proliferation of their competences.54

It is maintained here, however, that the distinction between regional arrangements under Chapter VIII and collective-defense alliances has nothing to do with the UN Charter. As noted above, the notion of re-gional arrangements or agencies was initially very broad and included military alliances as well,55 something that has been asserted, inter alia, by the same authors who distinguish between regional organizations and military alliances.56 Moreover, it cannot be denied that defense against external threats can have an important impact on the mainte-nance of peace and security in the region, as has been advanced by, e.g., Kelsen as early as 1951.57 It is illustrative that a majority of regional or-ganizations are designed, among other things, to defeat an armed attack when it happens.58

Article 52 para. (1) expressly recognizes the right of regional ar-rangements or agencies to deal “with such matters relating to the main-tenance of international peace and security as are appropriate for re-gional action” and contains neither restrictions on the list of activities or competences nor an ultimate requirement to exercise dispute settle-ment and enforcement action only. The UN Charter has been drafted as

53 See Doehring, see note 6, 114; Abass, see note 4, 14; Hummer/ Schweitzer,

see note 21, 823. 54 Doehring, see note 6, 110; Abass, see note 4, 14, 23-24; Beyerlin, see note

18, 1041, 1050; Wilson, see note 38, 186. 55 Documents of the UN Conference on International Organization, Vol. III,

see note 8, 128. 56 See notes 23, 24. 57 See also Kelsen, see note 26, 163-165; Abass, see note 4, 39. 58 TCS, article 4; the North-Atlantic Treaty of 4 April 1949, article 5; OAS

Charter, article 28.


a flexible document that is able to adapt to new circumstances and still provides a sufficient framework for the activities of regional arrange-ments, even in the face of an expansion of new threats and challenges.59

It could thus be concluded that the spectrum of entities falling under Chapter VIII is rather broad. Qualification of an arrangement or agency as regional in the meaning of Chapter VIII UN Charter is not conditioned by its permanent or temporary nature, the existence of a permanent institutional structure, or the presence of effective means and facilities for dispute settlement or enforcement action. The qualify-ing criteria could be considered to include limited (as opposed to uni-versal) membership (most probably with geographical proximity of participating states); an orientation (primarily or inter alia) towards the maintenance of international peace and security; and adherence to the purposes and principles of the UN Charter.

6. Usual Activities of Regional Arrangements

At noted above, Chapter VIII provides no strict list of activities for re-gional arrangements or agencies but rather recognizes their compe-tences in dispute settlement and enforcement actions under the author-ity or with authorization of the UN Security Council. Although it is very unlikely that the UN Security Council will utilize regional ar-rangements for enforcement action under its authority in the very near future, the problem of enforcement action by regional arrangements or agencies remains a matter of controversy. The need for a UN Security Council authorization is not questioned,60 but the meaning and scope

59 2005 World Summit Outcome, see note 25; para. 79 expressly states that

“the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security.”

60 Documents of the UN Conference on International Organization, Vol. III, see note 8, 215; Wilson, see note 38, 184; Bentwich/ Martin, see note 31; Abass, see note 4, 52-53; Walter, see note 21, 134, 141; Relationship be-tween the United Nations and Regional Organizations, in particular the African Union, in the Maintenance of International Peace and Security, Report of the UN Secretary-General of 7 April 2008, Doc. S/2008/18, para. 10. It is notable that peace-keeping activities as exercised according to the agreement of States Parties involved cannot be viewed as an enforcement action, although this view is sometimes advanced in the legal doctrine, K. Korkelia, “The CIS Peace-Keeping Operations in the Context of Interna-tional Legal Order”, available at <http://www.nato.int/acad/>, 11.


of enforcement action under Article 53, as well as the time and form of authorization by the UN Security Council, are actively debated.61 Naturally, regional organizations are mostly involved in non-forcible activities. UN documents relating to the activity of regional arrange-ments recognize their role in preventive diplomacy, peace-making, early warning, peace-keeping, post-conflict peace-building (including elec-tion control and assistance), disarmament,62 peaceful settlement of in-ternational disputes (including facilitation and mediation),63 struggle against international terrorism, genocide, ethnic cleansing, war crimes, crimes against humanity,64 illegal arms trafficking and the proliferation of weapons of mass destruction, crisis management, implementation of UN Security Council sanctions, establishment of quick-reaction forces forces

61 Although the UN Drafters viewed enforcement action as any sort of en-

forcement (Ress/ Bröhmer, see note 43, 860), attempts have been made to confine “enforcement action” under Article 53 to exclusively military ac-tion, so that non-military action would need no authorization – see e.g. Abass, see note 4, 43, 45, 46, 49; Walter, see note 21, 142; T.J. Farer, “Politi-cal and Economic Coercion in Contemporary International Law”, AJIL 79 (1985), 405 et seq. (407); J.A. Frowein, “Legal Consequences for Interna-tional Law Enforcement in Case of Security Council Inaction”, in: J. Del-brück (ed.), The Future of International Law Enforcement. New Scenarios – New Law?, 1993, 121. The opposite opinion is expressed by Akehurst, see note 24, 186; H. Kelsen, The Law of the United Nations, 1964, 724. Some authors claim the possibility of post facto or implied sanction – L. Miker/ Z. Wolter – cited by Ress/Bröhmer, see note 43, 864; Abass, see note 4, 53-54; B. Simma, “Regional Enforcement of Community Objec-tives”, in: V. Gowlland-Debbas (ed.), United Nations Sanctions and Inter-national Law, 2001, 118.

62 Supplement to an Agenda for Peace, see note 25, para. 23. 63 Declaration on the Enhancement of Cooperation, see note 50, para. 2; Per-

spectives of the UN and Regional Organizations on Preventive and Quiet Diplomacy, Dialogue, Facilitation and Mediation: Common Challenges and Good Practices, February 2011, available at <http://www. osce.org>.

64 2005 World Summit Outcome, see note 25, paras 87-88, 93, 100, 139.


to support UN peace-keeping operations,65 and the promotion and protection of human rights.66

Apparently, the expansion of activities of regional organizations re-flects and conforms to an expansion of the notion and vision of security. In addition to measures aimed at the prevention or settlement of a par-ticular (existing or imminent) conflict (which besides dispute settlement and enforcement action include peace-keeping measures67), there are measures aimed at the prevention of the very possibility of a conflict (so called “confidence- and security-building measures” (hereafter, CSBMs): disarmament, arms control, exchange of information, mutual inspections, etc.) and measures aimed at the struggle against particular threats. Implementation of resolutions of the UN Security Council, de-pending on their content, could concern any of these areas. Attention is also paid to the promotion and protection of human rights. The activity of regional arrangements, regardless of its nature, is to be exercised within the framework of UN purposes and principles and thus requires the explicit, prior, clear and freely expressed consent of a target/host state68 for non-forcible measures or UN Security Council authorization for enforcement action.

65 S/RES/1631 (2005) of 17 October 2005, paras 2-5; Statement by the Presi-

dent of the Security Council S/PRST/2010/1, see note 27, paras 3, 5-7; Speech of the US representative in the United Nations Security Council DiCarlo – Security Council 6257 Mtg, Doc. S/PV.6257, 25-26; Speech of the Representative of Austria, 27-28; S/RES/1809 (2008) of 16 April 2008, para. 8.

66 Relationship between the United Nations and Regional Organizations, in particular the African Union, see note 60, Parts IV-IX.

67 On the types and forms of peace-keeping operation, see United Nations Peacekeeping Operations. Principles and Guidelines, 2010, 17-18.

68 See Certain Expenses of the United Nations, ICJ Reports 1962, 151 et seq. (162 et seq.); L. Henkin, “The Invasion in Panama under International Law: A Gross Violation”, Colum. J. Transn’l L. 29 (1991), 293 et seq. (299); Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, ILC Yearbook 2001, Vol. II, Part 2, 73; N. Bother, “Peace-keeping”, in: Simma, see note 21, 681-682; Helsinki Summit Declaration 1992, see note 46, paras 23-24; R. Siekmann, “Commentary: OSCE versus UN Peacekeeping”, Helsinki Monitor 3 (1992), 18 et seq. (19).


7. Cooperation between the United Nations and Regional Arrangements

Every international organization develops its own rules and practices in cooperation with other actors. The current study makes an overview of the mechanisms and procedures formed within the United Nations. Af-ter the end of the Cold War, the United Nations sought to intensify its cooperation with regional arrangements under Chapter VIII in view of the inadequacy of the UN’s resources and the inability of the UN Secu-rity Council to handle conflicts all around the world. A range of forms and mechanisms of cooperation including consultations, mutual diplo-matic efforts, diplomatic and operational co-deployment, joint opera-tions, financing of regional operations, mutual participation in the ac-tivity of coordinating organs, exchange of information, conclusion of memoranda of understanding, stand-by agreements or formalized agreements between secretariats, involvement of arrangements in the work of the UN Security Council, cooperation with the UN Peace-building Commission, participation in high-level meetings, etc. were proposed.69

Despite these efforts, no comprehensive system has been established and cooperation is exercised on an ad hoc basis. The UN Security Council, as noted in its report on Cooperation with Regional and Sub-regional Organizations, does not consider the problem in general and still prefers to deal with it on a theoretical level.70 From a practical

69 Supplement to an Agenda for Peace, see note 25, para. 86; United Nations

Department of Peacekeeping Operations, Lessons Learned Unit, Coopera-tion between the United Nations and Regional Organiza-tions/Arrangements in a Peace-keeping Environment. Suggested Principles and Mechanisms, March 1999, para. 16; In Larger Freedom: Towards De-velopment, Security and Human Rights for All. Report of the Secretary-General, Doc. A/59/2005 of 21 March 2005, paras 213-215; S/RES/1631 (2005) of 17 October 2005, paras 7-8; Proposals of the 6th High-Level Meeting, available at <http://www.cris.unu.edu>; 2005 World Summit Outcome, see note 25, para. 170; Statement by the President of the Security Council Doc. S/PRST/2010/1, see note 27, paras 6, 7, 9; Relationship be-tween the United Nations and Regional Organizations, in particular the African Union, see note 60, paras 71-76.

70 See Security Council Update Report No. 3 of 18 September 2006, see note 25; Security Council Update Report No. 2 of 14 April 2008, UN Coopera-tion with Regional and Sub-regional Organizations and Conflict Preven-tion.


standpoint, the UN Security Council does not utilize regional organi-zations for its purposes but rather just welcomes any activity they take for the maintenance of peace and security in the region.71 Analysis of the UN Security Council’s resolutions on European and Central Asian conflicts in the last 20 years provides a good illustration of this point.

The UN Security Council generally does not refer to Chapter VIII in its resolutions (the only three exceptions were mentioned earlier) and authorizes states (acting individually or through regional arrangements) rather than regional arrangements directly.72 As far as the UN Security Council does not make use of its authority to utilize regional arrange-ments for the settlement of regional conflicts, they are free to decide on their involvement.73 The UN Security Council takes account of their decisions74 and adapts the mandate, financing and competences of the UN’s missions to those of regional arrangements.75 Cooperation with

71 See note 39. 72 See note 40. 73 See S/RES/1311 (2000) of 28 July 2000, preamble; S/RES/999 (1995) of 16

June 1995, preamble; S/RES/937 (1994) of 21 July 1994, preamble; S/RES/1427 (2002) of 29 July 2002, preamble.

74 S/RES/937 (1994) of 21 July 1994, preamble; S/RES/959 (1994) of 19 No-vember 1994, preamble; S/RES/1551 (2004) of 9 July 2004, preamble; in-cluding those which concern particular situations – e.g. S/RES/1575 (2004) of 22 November 2004, preamble; S/RES/1639 (2005) of 21 November 2005, preamble; S/RES/1722 (2006) of 21 November 2006, preamble; S/RES/1895 (2009) of 18 November 2009, preamble; S/RES/999 (1995) of 16 June 1995, preamble; S/RES/1036 (1996) of 12 January 1996, preamble; S/RES/1065 (1996) of 12 July 1996, preamble, para. 12; S/RES/1255 (1999) of 30 July 1999, preamble; S/RES/1287 (2000) of 31 January 2000, pream-ble; S/RES/1339 (2001) of 31 January 2001, preamble; S/RES/1393 (2002) of 31 January 2002, preamble; S/RES/1462 (2003) of 30 January 2003, pre-amble; S/RES/1524 (2004) of 30 January 2004, preamble; S/RES/1554 (2004) of 29 July 2004, preamble; S/RES/1582 (2005) of 28 January 2005, preamble; S/RES/1615 (2005) of 29 July 2005, preamble.

75 S/RES/993 (1995) of 12 May 1995, para. 2; S/RES/1036 (1996) of 12 Janu-ary 1996, para. 11; S/RES/1255 (1999) of 30 July 1999, para. 12; S/RES/1287 (2000) of 31 January 2000, para. 11; S/RES/1311 (2000) of 28 July 2000, para. 13; S/RES/1364 (2001) of 31 July 2001, para. 20; S/RES/1393 (2002) of 31 January 2002, para. 17; S/RES/1462 (2003) of 30 January 2003, para. 20; S/RES/1524 (2004) of 30 January 2004, para. 29; S/RES/1554 (2004) of 29 July 2004, para. 28; S/RES/1582 (2005) of 28 January 2005, para. 31; S/RES/1615 (2005) of 29 July 2005, para. 33; S/RES/1666 (2006) of 31 March 2006, para. 11.


or between regional arrangements is welcomed but no forms or mecha-nisms are ever imposed.76 The UN Security Council does not even re-quire regional arrangements to submit information on their activity in accordance with Article 54 of the UN Charter. This obligation is trans-ferred to single states77 or to the UN Secretary-General.78

It could thus be concluded that after the end of the Cold war, the UN Security Council preserves control over the legality of actions taken by regional arrangements and ensures minimal security standards for their in-field personnel,79 while the latter are encouraged to take on the burden of practical action.

76 E.g. S/RES/1206 (1998) of 12 November 1998, preamble; S/RES/1240

(1999) of 15 May 1999, preamble; S/RES/1274 (1999) of 12 November 1999, preamble; S/RES/937 (1994) of 21 July 1994, preamble; S/RES/999 (1995) of 16 June 1995, preamble, para. 13; S/RES/1030 (1995) of 14 De-cember 1995, preamble, para. 13; S/RES/1061 (1996) of 14 June 1996, pre-amble; S/RES/1089 (1996) of 13 December 1996, preamble; S/RES/1036 (1996) of 12 January 1996, preamble; S/RES/1065 (1996) of 12 July 1996, preamble; S/RES/1225 (1999) of 28 January 1999, preamble; S/RES/1255 (1999) of 30 July 1999, preamble; S/RES/1287 (2000) of 31 January 2000, preamble; S/RES/1311 (2000) of 28 July 2000, preamble; S/RES/1666 (2006) of 31 March 2006, preamble; S/RES/1808 (2008) of 15 April 2008, preamble; S/RES/1287 (2000) of 31 January 2000, preamble; S/RES/1339 (2001) of 31 January 2001, preamble; S/RES/1393 (2002) of 31 January 2002, preamble; S/RES/1462 (2003) of 30 January 2003, preamble; S/RES/1524 (2004) of 30 January 2004, preamble; S/RES/1554 (2004) of 29 June 2004, preamble; S/RES/1582 (2005) of 28 January 2005, preamble; S/RES/1615 (2005) of 29 July 2005, preamble.

77 E.g. resolutions S/RES/787 (1992) of 16 November 1992, para. 14; S/RES/816 (1993) of 31 March 1993, para. 7; S/RES/1031 (1995) of 15 De-cember 1995, para. 25; S/RES/1247 (1999) of 18 August 1999, para. 18; S/RES/1305 (2000) of 21 June 2000, para. 18; S/RES/1575 (2004) of 22 No-vember 2004, para. 18; S/RES/1639 (2005) of 21 November 2005, para. 18; S/RES/1722 (2006) of 21 November 2006, para. 18; S/RES/1845 (2008) of 20 November 2008, para. 18; S/RES/1895 (2009) of 18 November 2009, para. 18; S/RES/1948 (2010) of 18 November 2010, para. 18; S/RES/1174 (1998) of 15 June 1998, para. 18.

78 Resolutions S/RES/934 (1994) of 30 June 1994, para. 4; S/RES/1808 (2008) of 15 April 2008, para. 15; S/RES/822 (1993) of 30 April 1993, para. 4; S/RES/853 (1993) of 29 July 1993, para. 13.

79 S/RES/1174 (1998) of 15 June 1998, paras 15-16; S/RES/1247 (1999) of 18 June 1999, para. 15; S/RES/1551 (2004) of 9 July 2004, para. 17; S/RES/1575 (2004) of 22 November 2004, para. 17; S/RES/1785 (2007) of 21 November 2007, para. 17; S/RES/1895 (2009) of 18 November 2009,


II. The OSCE, CIS and CSTO as Regional Arrangements under Chapter VIII of the UN Charter

1. Criteria and Qualification

It is maintained here that all organizations under consideration, the OSCE, CIS and CSTO are regional arrangements under Chapter VIII.

Membership: The OSCE, CIS and CSTO are organizations with limited membership, although none of them is restricted only to a geo-graphical region.

Purposes: The OSCE was established as a forum for discussion of urgent matters in the sphere of international security (Helsinki Final Act 1975) and is currently involved in different dimensions of security activities in the region.

CIS, founded immediately after the disintegration of the Soviet Un-ion, was not aimed exclusively or even primarily at the maintenance of international peace and security, although the peaceful settlement of disputes, disarmament and the maintenance of international peace and security were included in the purposes of the organization (CIS Statute, article 2)80 and evaluated in Parts III-IV of the Statute81 and in later documents.82

para. 17; S/RES/1206 (1998) of 12 November 1998, para. 7; S/RES/1274 (1999) of 12 November 1999, para. 8; S/RES/1167 (1998) of 14 May 1998, para. 6; S/RES/993 (1995) of 12 May 1995, preamble and para. 8; S/RES/1036 (1996) of 12 January 1996, para. 8; S/RES/1339 (2001) of 31 January 2001, para. 13; S/RES/1393 (2002) of 31 January 2002, para. 14; S/RES/1427 (2002) of 29 July 2002, paras 15, 16; S/RES/1524 (2004) of 30 January 2004, paras 26, 27; S/RES/1582 (2005) of 28 January 2005, para. 28; S/RES/1615 (2005) of 29 July 2005, paras 28-30; S/RES/1808 (2008) of 15 April 2008, para. 14.

80 CIS Statute of 22 January 1993, Sodruzhestvo (1993 (1)). 81 According to article 11 of the CIS Statute, the CIS Member States have to

coordinate their policy in the sphere of security, disarmament, arms con-trol, and the building of armed forces. The maintenance of regional peace and security could be ensured also through the use of military forces and collective peace-maintenance forces, also in peace-keeping operations (arts 11-12).

82 Kotseptsia Dalnejshego Razvitia Sodruzhestva Nezavisimykh Gosudarstv, Plan Realizatsii Kontseptsii, Reshenie Soveta Glav Gosudarstv SNG (Con-


CSTO originated in the Treaty for Collective Security (TCS) con-cluded on 15 May 1992 by six CIS Member States as a self-defense pact within the CIS system (TCS, arts 1(1), 4). In 2003, after the CSTO Charter83 came into force, the TCS system separated from the CIS and transformed into an independent international organization (CSTO Charter, article 1). CSTO is aimed “to strengthen peace and interna-tional and regional security and stability and to ensure the collective de-fence of the independence, territorial integrity and sovereignty of the Member States in the attainment of which Member States shall give pri-ority to political measures.” (CSTO Charter, article 3). The TCS had al-ready set forth the purpose “to establish [a] regional system of collec-tive security” (article 1(3)).84

Adherence to the purposes and principles of the United Nations: All organizations under consideration express their adherence to the UN purposes and principles85 as well as their obligations under the UN

cept of the Future Development of the Commonwealth of Independent States, Plan of Action) (this title and the following ones are not the official ones, but translations by the author), (Decision of the CIS CHS of 5 Octo-ber 2007), paras 2.2, 2.3, 4.6.

83 CSTO Charter of 17 October 2002, Bulletin of International Treaties, (2004 (3)), 3 et seq.

84 It has been reaffirmed and developed in the CSTO Charter, see note 83, ar-ticle 7; Decision of the Collective Security Council (CSC) of 24 May 2000, O modeli regionaljnoj sistemy kollektivnoj bezopasnosti (On the Model of a Regional System of Collective Security); Deklaratsija gosudarztv-chlenov ODKB o sovershnstvovanii i usilenii effektivnosti dejatel’nosti ODKB (Declaration of the CSTO Members on the Improvement and Enhance-ment of Effectiveness of CSTO Activity) of 23 June 2006.

85 CIS Agreement on the Establishment of the Commonwealth of Independ-ent States of 8 December 1991, Sodruzhestvo, (1992 (1)), preamble; CIS Statute, see note 80, preamble; Memorandum o Podderzhanii mira i be-zopastnosti v SNG (Memorandum on the Maintenance of Peace and Stabil-ity in the CIS) of 10 February 1995, Sodruzhestvo, (1995 (1)), preamble; Kontseptsija soglasovannoj pogranichnoy politiki gosudarstv-uchastnikov SNG (Concept of the Coordinated Border Policy of the CIS Member-States), confirmed by the CIS CHS decision of 26 August 2005, Electronic Legal Database Konsul’tant Plus, Technologiia 3000, Part. I; CSTO: TCS, see note 32, article 1(1); CSTO Charter, see note 83, preamble, article 4; Kontseptsija formirovanija i funktsionirovanija mirotvorheskogo mecha-nisma ODKB (Concept of Formation and Functioning of the CSTO Peace-keeping Mechanism) of 18 June 2004, para.1.


Charter.86 Furthermore, the CSCE Declaration on Principles Guiding Relations between Participating States87 explained and developed prin-ciples set forth in the UN Charter and the so called Friendly Relations Declaration.

Qualification: The OSCE and CIS qualified themselves as regional arrangements under Chapter VIII in their documents.88 CSTO docu-ments do not refer to Chapter VIII of the UN Charter. Nevertheless, CSTO was initially established as a regional organization for collective security (CSTO Charter, article 1). Furthermore, recent CSTO docu-ments claim that the system of collective security has already been es-tablished within the organization.89

86 CSTO Charter, see note 83, preamble; TCS (with Protocol of 10 December

2010), see note 32, article 6(2); Soglashenie o porjadke formirovanija i funktsionirovania sil i sredstv sistemy kollektivnoj bezopastnoati ODKB (Agreement on the Formation, Functioning of Forces and Means of the CSTO System of Collective Security) (hereafter, Agreement on Function-ing of Forces) of 10 December 2010 (not in force), preamble.

87 Helsinki Final Act 1975, see note 16. 88 Cf. arts 1 of the respective Charters and Helsinki Summit Declaration

1992, para. 25, Helsinki Decision III, para. 19; Helsinki Decision IV, para. 2, see note 46; Charter for European Security 1999, see note 46, para. 7; As-tana Commemorative Declaration 2010, see note 9, para. 6; see also Evers/ Kahl/ Zellner, see note 8, 53; CIS – Kontseptsia predotvraschenija i ureguli-rovania konfliktov na territorii gosudarstv-uchastnikov SNG (Concept of the Prevention and Settlement of Conflicts on the Territory of CIS Mem-ber States) (hereafter, Concept 1996), confirmed by the CIS CHS Decision of 19 January 1996, Sodruzhestvo, (1996 (1)), para. 2; Statement on the CIS CHS of 15 April 1994, Sodruzhestvo, (1994 (1)); Model law O parlament-skom kontrole za voennoj organizatsiej gosudarstva (On Parliamentary Control over the Military Organization of the State), adopted on 24 No-vember 2001; “CIS Interparliamentary Assembly”, Information Bulletin 28 (2002), 271 et seq., article 8 (1); Model Law Ob uchastii gosudarstv-uchastnikov SNG v mirotvorcheskih operatsijah (On Participation of CIS Member States in Peace-keeping Operations), adopted on 17 April 2004; CIS Interparliamentary Assembly, Information Bulletin 34 (2004), 140 et seq., article 3.

89 Soglashenie ob uchrezhdenii sistemy upravlenija salami i sredstvami sis-temy kollektivnoj bezopasnosti ODKB (Agreement on the Establishment of a System of Management of the Forces and Means of the CSTO Collec-tive Security System) (hereafter, Agreement on Management of Forces) of 6 October 2007, National Register of Legal Acts of Belarus N 53, 3/2212, preamble, article 3; Agreement on the Functioning of Forces, see note 86, preamble.


Several of these organizations have been treated as falling under Chapter VIII by UN organs and the UN General Assembly granted them observer status,90 considers cooperation with them within its agenda91 and notes their activity as regional arrangements in accordance with Chapter VIII.92 The UN Security Council welcomed and posi-tively assessed the activity of CIS in settling conflicts in South Ossetia and Tajikistan.93

To be able to decide on the existence of or prospects for establishing the system of collective security in the CIS region, it is necessary to make an overview of the functions and competences of the relevant re-gional arrangements as well as their involvement in the conflicts in the area.

2. The OSCE Activity

The OSCE represents a very broad vision of security. Its activity be-sides the political-military area involves efforts in economic, environ-mental and human dimensions, which undoubtedly also have some ef-

90 OSCE – A/RES/48/5 of 13 October 1993; CIS – A/RES/48/237 of 24

March 1994; CSTO – A/RES/59/50 of 2 December 2004. 91 With OSCE – A/RES/50/87 of 18 December 1995; A/RES/51/57 of 12 De-

cember 1996; A/RES/52/22 of 25 November 1997; A/RES/53/85 of 7 De-cember 1998; A/RES/54/117 of 15 December 1999; A/RES/55/179 of 19 December 2000; A/RES/56/216 of 21 December 2001; A/RES/57/298 of 20 December 2002; A/RES/58/55 of 8 December 2003, etc. CSTO – A/RES/64/256 of 19 March 2009, A/RES/65/122 of 13 December 2010.

92 CSTO – A/RES/64/256 of 2 March 2010. 93 See e.g. Resolutions of the S/RES/1150 (1998) of 30 January 1998, pream-

ble; S/RES/1187 (1998) of 30 July 1998, preamble; S/RES/1255 (1999) of 30 July 1999, preamble; S/RES/1311 (2000) of 28 July 2000, preamble; S/RES/1427 (2002) of 29 July 2002, preamble; S/RES/1554 (2004) of 29 July 2004, preamble; S/RES/1615 (2005) of 29 July 2005, preamble; Sup-plement to an Agenda for Peace, see note 25, para. 86 (d); Press Release PI/1668 of 21 July 2005 - United Nations, Regional Organizations to Agree on Stronger Partnerships in Facing Peace, Security Challenges. Sixth High-Level Meeting of UN, Regional Intergovernmental Bodies set for Headquarters on 25-26 July 2005; Cooperation between the United Na-tions and Regional Organizations/Arrangements in a Peace-keeping Envi-ronment, see note 69.


fect in conflict prevention.94 The OSCE also follows a broad approach of security with respect to the three key areas identified earlier. For ex-ample, the OSCE Concept of Comprehensive and Cooperative Security 2009 provides for the need to cooperate in risk reduction and early warning; small arms and light weapons; action against terrorism; border security and management; police matters; security aspects related to in-ter-ethnic tensions.95

An emphasis has been placed on measures aimed at the elimination or minimization of the very possibility of even a hypothetical conflict, that include disarmament, arms control and CSBMs.96 The develop-ment of the system started from the Helsinki Final Act 197597 and con-tinued through the Stockholm document 198698 and a set of Vienna documents of 1990, 1992, 1994 and 199999 with regard to CSBMs; a set of OSCE decisions as well as treaties concluded under the OSCE um-brella and concerned with disarmament and arms control.100 The OSCE

94 See in particular, OSCE mechanisms and procedures, Vienna 2004; Com-

pendium of OSCE Mechanisms and Procedures (SEC.GAL/121/08) of 20 June 2008; both documents available at <http://www.osce.org>.

95 OSCE Concept of Comprehensive and Cooperative Security: An Over-view of Major Milestones (SEC.GAL/100/09) of 17 June 2009, 3-18. For analysis of the OSCE commitment and activities see also Evers/ Kahl/ Zellner, see note 8, 17-25; Lisbon Declaration on a Common and Compre-hensive Security Model for Europe for the Twenty-first Century 1996; Charter for European Security 1999, see note 46; Corfu Informal Meeting, see note 9; Furthering the Corfu process, Decision of the OSCE Ministerial Council No 1/09 of 2 December 2009, available at <http://www.osce.org>; OSCE Handbook, 2007, 10-12, 80-87.

96 Charter for European Security 1999, see note 46, para. 28; Astana Com-memorative Declaration 2010, see note 9, para. 8.

97 Helsinki Final Act of 1 August 1975, see note 16, Part II. 98 Document of the Stockholm Conference on Confidence- and Security-

Building Measures and Disarmament in Europe convened in accordance with the Relevant Provisions of the Concluding Document of the Madrid Meeting of the Conference on Security and Cooperation in Europe of 1986.

99 Vienna Document of Negotiations on Confidence- and Security Building Measures of 16 November 1999; for the development of the CSBMs within the OSCE see Z. Lachowski, Confidence and Security Building Measures in the New Europe, 2004.

100 E.g. Treaty on Conventional Armed Forces in Europe of 19 November 1990; Treaty on Open Skies of 24 March 1992; OSCE Document on Small Arms and Light Weapons of 24 November 2000; OSCE Principles on the


system of disarmament, arms-control and CSBMs is often claimed to “establish an outstanding level of military transparency, to which no other part of the world ever comes close.”101

Another group of OSCE mechanisms and procedures includes those aimed at prevention and settlement of a particular conflict: early warn-ing and preventive action,102 mechanisms for consultation and coopera-tion with regard to emergency situations,103 disarmament,104 mecha-nisms for the peaceful settlement of international disputes,105 fostering the OSCE role as a forum for political dialogue,106 and stabilizing measures for localized crisis situations.107 Most of these measures are

Control of Brokering in Small Arms and Light Weapons, Decision No.8/04 of 24 November 2004, documents available at <http://www.osce.org>; for a comprehensive list see OSCE Concept of Comprehensive and Cooperative Security, see note 95, 12-15.

101 Evers/ Kahl/ Zellner, see note 8, 21. 102 See Helsinki Document 1992, see note 46, Chapter III; OSCE Stabilizing

Measures for Localized Crisis Situations of 25 November 1993; CSCE and the New Europe – Our Security is indivisible, Ministerial Declaration of 1 December 1993, Chapter II, paras 1-3; documents available at <http://www.osce.org>.

103 Annex 2 to the Summary of Conclusions of the First CSCE Council of Ministers, Berlin 1991.

104 Although this mechanism is rather modestly mentioned in the Compen-dium of OSCE Mechanisms and Procedures, see note 94, OSCE docu-ments provide a wide spectrum of measures aimed at confidence- and secu-rity-building; cf. Principles Governing Conventional Arms Transfers of 25 November 1993, Annex III; OSCE Document on Small Arms and Light Weapons of 24 November 2000; Principles Governing Non-Proliferation of 3 December 1994; OSCE Document on Stockpiles of Conventional Ammunition of 19 November 2003; all documents are available at <http://www.osce.org>; Convention on the Prohibition of the Use, Stock-piling, Production and Transfer of Anti-Personnel Mines and on their De-struction 1997 with Protocol II. For detailed analysis see also Lachowski, see note 99, 101-105, 115-127.

105 Principles for Dispute Settlement and Provisions for a CSCE Procedure for Peaceful Settlement of Disputes, Valletta 1991; Convention on Conciliation and Arbitration within the CSCE, 1992.

106 Basic principles in the area are set forth by Decision No. 3 of the 9th Bu-charest Ministerial council on 4 December 2001, “Fostering the Role of the OSCE as a Forum for a Political Dialogue”, available at <http://www.osce.org>.

107 Stabilizing measures for Localized Crisis Situations, see note 102.


exercised through field activities,108 which, however, have never been traditional peace-keeping missions.109 Field operations may vary from field representations via mediation efforts to projects outsourced by other entities.110 The Istanbul Summit established rapid expert assis-tance and cooperation teams to respond quickly to demands for assis-tance and for large civilian field operations (Charter of European Secu-rity, 1999, paras 1, 42). Neither the enforcement mechanism nor the es-tablishment of permanent military forces have ever been prescribed in the OSCE documents.

The OSCE takes certain steps to be able to face threats which do not originate from state behavior: terrorism, organized crime, illegal migra-tion, the proliferation of weapons of mass destruction, cyber-threats, and illicit trafficking in small arms and light weapons, drugs and human beings (see e.g. Astana Declaration 2010, para. 9). The OSCE compe-tences and success in the peaceful settlement of disputes are rather con-fusing.

Despite repeated attempts to establish an effective mechanism of in-ternational dispute settlement, neither the Valetta Mechanism of 1992 nor the OSCE Court of Conciliation and Arbitration, despite its wide (unlimited) competence,111 including, inter alia, issues of international security of a non-legal nature,112 and initial enthusiasm on its possible

108 Currently 17 missions and other field activities are operational – What is

OSCE?, Factsheet, 7 January 2011, available at <http://www.osce.org>. 109 Para. 38 of the Charter for European Security 1999, see note 46, describes

tasks of field operations as: providing assistance and advice or formulating recommendations in areas agreed by the OSCE and the host country; ob-serving compliance with OSCE commitments and providing advice or rec-ommendations for improved compliance; assisting in the organization and monitoring of elections; providing support for the primacy of law and de-mocratic institutions and for the maintenance and restoration of law and order; helping to create conditions for negotiation or other measures that could facilitate the peaceful settlement of conflicts; verifying and/or assist-ing in fulfilling agreements on the peaceful settlement of conflicts; provid-ing support in the rehabilitation and reconstruction of various aspects of society. See also Evers/ Kahl/ Zellner, see note 8, 22.

110 Evers/ Kahl/ Zellner, see note 8, 56-57 111 Convention on Conciliation and Arbitration within the CSCE, see note

105, article 1. 112 S. Jacobi, “The OSCE Court: An Overview”, LJIL 10 (1997), 287 et seq.

(289-291).


role in dispute settlement in the region,113 have ever been used by the OSCE states and (as sometimes maintained in the legal doctrine) are not likely to be used, especially in the sphere of maintenance of interna-tional peace and security.114 In contrast, the OSCE mediation efforts have often demonstrated good results (including in the CIS area).115 The OSCE e.g. was a mediator in the 5+2 format on the Moldova con-flict,116 took part in the functioning of the incidents’ prevention and re-sponse mechanism, assisted with the organization of meetings concern-ing Georgia in Geneva, even after the cancellation of its mission in the country.117

The OSCE involvement in the CIS area did not focus on the politi-cal-military dimension. Its primary attention was paid to the democra-tization of societies, state- and institution-building, promotion and pro-tection of human rights, reform and training of the police, development of economic and environmental objectives, amendment of legislation, assistance in organizing and observing elections, strengthening border security, combating terrorism and trafficking in drugs (e.g. Offices in Minsk, Ukraine, Azerbaijan, Armenia, Turkmenistan, Kazakhstan, Kyrgyzstan, Tajikistan, Uzbekistan).118

In conflict situations, the OSCE has additionally facilitated the achievement of lasting political settlements and national reconciliation (Tajikistan, Georgia, Nagorno-Karabakh) as well as the peaceful settle-ment of disputes through negotiation, good offices, mediation, country visits, fact-finding and reconnaissance (Moldova, Georgia, Nagorno-Karabakh conflict). It has gathered and provided information on the situation in the region (Moldova, Georgia); encouraged implementation of concluded agreements and commitments (e.g. on the withdrawal of foreign troops – Moldova, Georgia); acted as a guarantor of peace agreements (e.g. the Tajik Peace Agreement of 1997); and ensured

113 Jacobi, see note 112, 294. 114 P. Schneider/ T.J.A. Müller-Wort, The Court of Conciliation and Arbitra-

tion within OSCE: Working Methods, Procedures and Composition, 2007, 29; see also OSCE Mechanisms and Procedures, see note 94, 7-8.

115 A.D. Rotfeld, “Does the OSCE Have a Future?”, OSCE Yearbook 9 (2003), 37.

116 OSCE Annual Report 2009, 2010, 15. 117 OSCE Annual Report 2009, see note 116, 14. 118 OSCE Handbook, see note 95, 54-55, 58, 61, 64-65, 67, 68-69, 70-71, 72-73,

74-75; also see R. Reeve, “The OSCE Mission to Georgia – Activities in 2004”, OSCE Yearbook 10 (2004), 155 et seq.; Rotfeld, see note 115, 37-38.


transparency of the implementation of commitments through border, cease-fire line and other types of monitoring operations (Georgia, Na-gorno-Karabakh).119 The need for peace-keeping forces under the aus-pices of the OSCE has been repeatedly discussed, as for the Transnis-trian conflict, but no multinational forces have been established.120

It follows thus that the OSCE role in the political-military dimen-sion of security involves primarily diplomatic means of dispute settle-ment, mediation, fact-finding, monitoring, conflict prevention, post-conflict peace-building, CSBMs, disarmament and arms control.121 As it is not focused on introducing or using troops, the OSCE often acts as a political forum/coordinating institution. The further development of the OSCE is oriented toward the evolution of political dialogue, media-tion, monitoring, expert or other capacities rather than military poten-tial.122

119 OSCE fulfilled a range of border observance tasks, for example, concerning

the border between Georgia and Chechnya since 1999; Ingush Republic (Russian Federation) since 2001; Dagestan Republic (Russian Federation) since 2003 –Evers/ Kahl/ Zellner, see note 8, 23; see also Memorandum o Merah po obespecheniju bezopasnosti i ukrepleniju vzaimnogo doveria mezdu storonami v Gruzino-Ossetinskom konflikte (Memorandum on Se-curity and Confidence-Building Measures between the Parties of the Geor-gia-Ossetia Conflict) of 16 May 1996; OSCE Handbook, see note 95, 56-57, 62-63, 72, 76-78; C. Neukirch, “The OSCE Mission in Moldova”, OSCE Yearbook 9 (2003), 149; V. Jacoby, “The OSCE Mission in Geor-gia”, OSCE Yearbook 9 (2003), 163; S. Stöber, “The Failure of the OSCE Mission in Georgia – What Remains?”, OSCE Yearbook 16 (2010), 203 et seq. (205-207); Perspectives of the United Nations and Regional Organiza-tions, see note 63.

120 Neukirch, see note 119, 158-160; See Memorandum ob osnovah normali-zatsii otnoshenij mezhdu Respublikoj Moldova i Pridnestrobjem (Memo-randum on the Normalization of Relations between Moldova and Trans-nistria) of 8 May 1997, Russia-Ukraine (1990-2000) Documents and Mate-rials, Vol. 2 (1996-2000), 2001, 97 et seq.

121 Speech of the Head of the OSCE External Relations, Security Council 6257 Mtg, see note 27, 18. See also Hummer/ Schweitzer, see note 21, 834; OSCE Annual Report 2009, see note 116, 15, 17, 23-24, 50-51, 68-69, 96, 105; Charter for European Security, see note 46, para. 28; Cooperation be-tween the United Nations and Regional Organizations/Arrangements, see note 69.

122 Furthering the Corfu Process, see note 95. See also A. Ackermann/ H. Sal-ber, “The OSCE ‘Corfu Process’ – A Preliminary View of the Security Dialogue on Early Warning, Conflict Prevention and Resolution, Crisis


3. The CIS Activity

The CIS political-military cooperation includes border management, prevention and handling of natural disasters and environmental emer-gencies, management of joint systems, and struggle against new threats and challenges.123 Similarly to the OSCE, it focuses on CSBMs and preventive actions (e.g. development of general programs of action,124 conclusion of treaties,125 establishment of information databases,126

Management, and Post-Conflict Rehabilitation”, OSCE Yearbook 16 (2010), 197 et seq.; A. Ackermann/ J. Crosby/ J. de Haan/ E. Falkehed, “Developing an OSCE Mediation-Support Capacity: First Steps”, OSCE Yearbook 16 (2010), 369 et seq.; Rotfeld, see note 115, 38.

123 Available at <http://www.cis.minsk.by>. 124 See e.g. Programma Sotrudnichestva gosudarstv-uchastnikov SNG d

protivodejstvii nezakonnoj migratsii na 2009-2011 g. (Program of Coop-eration of the CIS Member States in the Suppression of Illegal Migration for 2009-2011), confirmed by the CIS CHS Decision of 10 October 2008; Concept of the Coordinated Border Policy, see note 85; Plan meroprijatij po realizatsii Kontseptsii soglasovannoj pogranichnoj politiki gosudarstv-uchstnikov SNG na 2011-2015 g (Plan of Action on the Realization of the Concept of the Coordinated Border Policy of the CIS Member States for 2011-2015), confirmed by the CIS CHS Decision of 10 December 2010; Konseptsia voennogo sontrudnichestva gosudarstv-uchastnikov SNG do 2015 (Concept of Military Cooperation of the CIS Member States until 2015), confirmed by the CIS CHS Decision of 10 December 2010; Pro-gramma sotrudnichestva gosudarstv-uchastnikov SNG v bor’be s beza-konnym oborotom narkoticheskih veschestv, psihotropnyh veschestv i ih prekursorov i protivodejstvii narkomanii na 2011-2013 (Program of Coop-eration of the CIS Member States in the Struggle against the Trafficking of Drugs, Psychotropic Substances and its Precursors and the Suppression of Drug Addiction for 2011-2013), confirmed by the CIS CHS Decision of 10 December 2010; Mezhgosudarstvennaja programma mer to bor’be sprestupnostju of 2011-2013 (Inter-State Program of Joint Action in the Struggle against Criminality for 2011-2013), confirmed by the CIS CHS Decision of 10 December 2010; Programma sotrudnichestva gosudarstv-uchastnikov SNG v bor’be d terrorismom i inymi nasilstvennymi projav-lenia extremisms na 2011-2013 (Program of Cooperation of the CIS Mem-ber States in the Struggle against Terrorism and other Violent Forms of Ex-tremism for 2011-2013), confirmed by the CIS CHS Decision of 10 De-cember 2010.

125 See Concept of the Border Policy, see note 85, Parts I, II; Soglashenie ob obmene informatsiej v sfere bor’by s prestupnostju (Agreement on the In-formation Exchange in the Struggle against Criminality) of 22 May 2009;


harmonization of legislation, training of personnel, research, maneu-vers,127 consultations, fact-finding, mutual inspections),128 rather than on the use of military force for peace-keeping or peace-enforcement. At the same time, arts 11-12 of the CIS Statute provide for the possibility of using military and collective peace-maintenance forces to ensure peace and security in the region, inter alia in collective self-defense. The latter provision, however, is very uncertain and has never been men-tioned in later CIS documents.

By contrast, repeated attempts have been made to establish the po-tential and modalities of peace-keeping activities.129 The CIS peace-

Dogovor gosudarstv-uchasnikov SNG o protivodejstvii legalizatsii prestupnyh dohodov i finansirovaniju terrorisma (Treaty of the CIS Mem-ber States on the Suppression of Money Laundering and the Financing of Terrorism) of 5 October 2007; Soglashenie gosudarstv-uchastnikov SNG po obespecheniju stabil’nogo polozhenija na ih vneshnih granitsah (Agree-ment on Cooperation of the CIS Member States on the Guarantee of Sta-bility at their External Borders) of 9 October 1992, Sodruzhestvo, (1992 (7)); Dogovor o sotrudnichestve gosudarstv-uchastnikov SNG v bor’be s terrorismom (Treaty on the Cooperation of the CIS Member States in the Struggle against Terrorism) of 4 June 1999, Sodruzhestvo, (1999 (2)).

126 Specialized Databank of the Bureau on the Coordination of the Struggle against Organized Crimes; Joint Databank of Illegal Migrants and other Persons who try to enter the Territory of the States Parties to the Agree-ment on Cooperation in the Struggle against Illegal Migration.

127 On the Activity of the Basis Education Institutions in the Sphere of Secu-rity; Concept of the Coordinated Border Policy, see note 85, Parts I, II.

128 Agreement on Cooperation, see note 125, arts 3, 7-8. 129 Soglashenie o gruppah voennyh nabludatelej i kollektivnyh silah po pod-

derzhaniju mira v. SNG (Agreement on the Groups of Military Observers and Collective Peace-Maintenance Forces in the CIS) of 20 March 1992, Sodruzhestvo, (1992 (4)); Protokol o komplektovanii, structure, mate-rial’no-tehnicheskom i finansovom obespechenii gruppy nabljudatelej i kollektivnyh sil po podderzhaniju mira v SNG (Protocol on the Recruit-ment, Structure, Material and Financial Procurement of the CIS Military Observers and Collective Peace-Maintenance Forces) of 15 May 1992, Sod-ruzhestvo, (1992 (5)); Soglashenie o kollektivnyh mirotvorcheskih silah i sovmestnyh merah po ih material’no-tehnicheskomu obespecheniju (Agreement on Collective Peace-keeping Forces and their Maintenance) of 24 September 1993, Sodruzhestvo, (1993 (4)); Polozhenie o kollektivnyh si-lah po podderzhniju mira v. SNG (Regulation of the CIS Collective Peace-Maintenance Forces) of 19 January 1996; Soglashenie o sotsial’nyh i pra-vovyh garantijah personaly kollektivnyh sil po podderzhaniju mira v. SNG (Agreement on Social and Legal Guarantees for the Personnel of the CIS


keeping activity is to be decided and supervised by the CIS Council of the Heads of States which decides on starting a particular peace-keeping or peace-support operation, determines its competence, authority, composition, purposes and terms of the operation, appoints the head of a mission, a Commander-in-chief or a head of the group of military ob-servers.130 With priority given to the means of diplomatic prevention or the settlement of conflicts, groups of military observers and collective forces for the maintenance of peace are assigned to the conflict parties, control observance of the cease-fire or the armistice agreements, ensure conditions for the peaceful settlement of international disputes, assist in the promotion and protection of human rights, and provide humanitar-ian assistance, including in cases of natural disasters and environmental emergencies.131 Conflict prevention and conflict settlement activity can only be exercised with the consent of the parties to the conflict (Con-cept 1996, paras 1-2).

CIS documents also provide the possibility of exercising enforce-ment actions in accordance with the authorization of the UN Security Council (Concept 1996, Chapter 2)132 and to apply sanctions (Concept, para. 1). The latter, however, can only be applied upon the agreement of the parties to the conflict, and thus cannot be viewed as a sanction in the ordinary sense. The CIS documents do not refer to the possibility of initiating an enforcement action. It should, however, be noted that CIS peace-keeping and peace-enforcement mechanisms are very skeletal and uncertain. No permanent contingents have ever been formed, and personnel is only to be provided by the interested states.133 The Regula-tion on Collective Peace-keeping Forces in the CIS, 1996, provides for unified systems of training and recruiting methods but does not oblige

Collective Peace-Maintenance Forces) of 5 October 2007 (not in force); Soglashenie o porjadke finansovogo, tehnicheskogo i tylovogo obe-spechenija dejatel’nosti i personala kollektivnyh sil po podderzhaniju mira (Agreement on Financial, Technical and Rear Procurement of the Activity and Personnel of the CIS Collective Peace-Maintenance Forces) of 5 Octo-ber 2007.

130 Concept 1996, see note 88, para. 5. 131 Agreement on the Groups of Military Observers, see note 129, arts 1, 3. 132 See also Korkelia, see note 60, 24. 133 Agreement on the Groups of Military Observers, see note 129, article 4. An

attempt to establish the CIS Collective Peace-keeping Forces (Agreement on Collective Peace-keeping Forces, see note 129) failed, as the Russian Federation – the chief supplier of military personnel and facilities – refused to participate.


states to have certain personnel available for participation in collective operations.

From 1992 to 2011 CIS has been involved in a variety of conflicts threatening the peace and security in the region. After an official cease-fire in the Georgia-Abkhazian conflict134 which resulted from the nego-tiating efforts of the United Nations, OSCE and the Russian Federa-tion,135 the CIS Collective military forces have been deployed in the area136 to replace a Russian military contingent.137 The CIS Collective military forces were to be stationed in the security separation zone to separate the military forces of the parties in conflict; to observe with-drawal of troops, cease-fire and separation obligations; to patrol the Kodor canyon; to guarantee the safe return of internally displaced per-sons to the places of their habitual residence; to assist in the restoration of the regions involved in the conflict; to secure the observance of hu-man rights and humanitarian standards; and to cooperate with UN Military observers and other UN personnel.138 The CIS Collective mili-tary forces were to be withdrawn upon the request of any party to the conflict.139

134 See Statement on the Measures of the Political Settlement of Georgia-

Abkhazian Conflict of 4 April 1994, Diplomatic Herald, (1994 (9-10)), para. 3; Soglashenie o prekraschenii ognja i raz’edinanii sil v zone Gruzino-Abkhazskogo konflikta (Agreement on the Cease-Fire and Separation of Forces in the Zone of the Georgia-Abkhazian Conflict) of 14 May 1994 (hereafter, Moscow Agreement).

135 See Statement on the Measures of Political Settlement of the Georgia-Abkhazian Conflict, see note 134, para. 1.

136 Involvement in the Georgia-Abkhazian conflict started in 1994 on the basis of the CIS CHS Decision Ob ispol’zovanii kollektivnyh vooruzhennyh sil dlja podderzhanija mira v zone Gruzino-Abhazskogo konflikta (On the Use of Collective Military Forces to Maintain Peace in the Zone of the Georgia-Abkhazian Conflict) of 22 August 1994.

137 Deklaratsija o politiheskom uregulirovanii Gruzino-Abhazskogo konflikta (Declaration on the Political Settlement of the Georgia-Abkhazian Con-flict) of 4 May 1994, para. 5.

138 Moscow Agreement, see note 134, paras 2.2, 2.4; CIS CHS Decision on the Use of Collective Forces for Peace-Maintenance in the Zone of the Geor-gia-Abkhazian Conflict, see note 136, para. 5.

139 The mandate of the CIS CMF has been repeatedly prolonged (e.g. by the CIS CHS Decisions of 7 October 1999 – 7 January 2000, para. 1; 1 January 2000, para. 2; 21 June 2000, para. 1; 26 July 2002 – 2 October 2002; 18 Feb-ruary 2003-2 April 2003; 25 July 2003) and terminated by the CIS CHS Decision of 10 October 2008 upon the request of Georgia (para. 1), Decla-


Despite the repeated attention of the CIS organs to the situation in Transnistria,140 efforts (including the peaceful settlement of the dispute) have been made only by interested states rather than the CIS organs.141 The situation in Tajikistan has been considered within the CIS since 1992.142 Upon the Kyrgyzstan initiative, CIS Member States supplied military contingents (composed of forces from Kazakhstan, Kyr-gyzstan, the Russian Federation and Uzbekistan) for stabilizing the situation at the Tajikistan-Afghan border.143 In the absence of its own military border forces in Tajikistan, the Russian Federation provided its contingents for a transitional period. Peace-keeping efforts in Nagorno-Karabakh have been undertaken by the Russian Federation. Mixed Peace-Keeping Forces for South Ossetia were introduced in July 1992.144 CIS’s attention to the situation in Chechnya was limited to sending observers to the Chechnya presidential elections145 and several references to the situation in the course of the struggle against terrorism and organized crimes.

ration on the Political Settlement of the Georgia-Abkhazian Conflict of 4 April 1994.

140 E.g. Ob informatsii Ispolnitel’nogo komiteta SNG o situatsii v ureguliro-vanii konflikta v Pridnestrovje (On the Information of the CIS Executive Committee on the Settlement of the Conflict in Transnistria), Decision of the CIS CMFA of 24 January 2000.

141 See inter alia Memorandum ob osnovah normalizatsii otnoshenij mezhdu Respublikoj Moldova i Pridnestrovjem (Memorandum on the Normaliza-tion of the Relations between Moldova and Transnistria) of 8 May 1997, Russia-Ukraine 1990-2000. Documents and Materials, see note 121; Joint Russian-Ukrainian Statement of 20 March 1998, Russia-Ukraine 1990-2000.

142 Statements of the CIS Member-States of 9 October 1992, 22 January 1993, etc.

143 O merah po stabilizatsii obstanovki na uchastke gosudarstvennoj granitsy Respubliki Tadzhikistan s Afganistanom (On the Measures to Stabilize the Situation at the Border between Tajikistan and Afghanistan), confirmed by the CIS CHS Decision of 22 January 1993, Sodruzhestvo, (1993 (1)), pro-longed by Decisions of 19 January 1996, 29 March 1997.

144 S.E. Cornell, “Russia’s Gridlock in Chechnya: “Normalization” or deterio-ration?”, OSCE Yearbook 10 (2004), 251 et seq.

145 O napravlenii nabljudatelej ot SNG na vybory Prezidenta Chechenskoj Respubliki, Rossijskaja Federatsija (On Sending of CIS Observers to the Election of the President of the Chechen Republic and the Russian Federa-tion), CIS CHS Decision of 19 September 2003.


The mechanisms for a peaceful settlement of international disputes in the CIS are rather poor. The only available mechanisms are obliga-tory mutual consultations in the case of any threat to the international peace and security in order to coordinate activity on the matter (CIS Statute, article 12), and negotiations aimed, inter alia, at deciding on the particular means of dispute settlement (article 17). Parties to the dispute can also submit it to the CIS Council of the Head of States (article 17(3)), whose competence is formulated similar to the competences of the UN Security Council as set forth in Article 36 para. (1) of the UN Charter in respect of disputes which could endanger international peace and security in the region (CIS Statute, article 18). This mechanism, however, is very skeletal and has never been used. Specific accords sometimes provide for the possibility of mutual assistance in the settle-ment of existing conflicts upon the consent of the parties involved (CIS Statute, article 16), or (exceptionally) establish particular forms of dis-pute settlement (Agreement on Cooperation of the CIS Member States on the Guarantee of Stability at their External Borders of 9 October 1992, arts 3, 7-8).

CIS states are absolutely unwilling to submit their disputes for in-ternational adjudication.146 The CIS Economic Court, despite its very limited competence,147 has a certain intermediate impact on the peaceful settlement of international disputes through its right to interpret “pro-visions of international agreements, CIS acts and legal acts of the former USSR in the period of their mutual application” at the request of state authorities, supreme economic courts of CIS Member States or CIS in-stitutions.148 Repeated attempts to broaden its jurisdiction or to estab-lish the CIS Court with broader competence149 have failed.

146 In particular, no CIS Member State has recognized the compulsory juris-

diction of the ICJ on the basis of Article 36 of the ICJ Statute. Six states are parties to the OSCE Convention on Conciliation and Arbitration of 1992 (Armenia, Belarus, Moldova, Tajikistan, Ukraine, Uzbekistan), available at <http://www.osce.org>, but its mechanisms have never been used. Six states are currently members of the Agreement on the CIS Economic Court, available at <http://www.sudsng.org>.

147 In the period of 1994 to 2011 only 11 applications for dispute settlement had been submitted to the CIS EC, in five cases the Court found that it had no jurisdiction, available at <http://www.sudsng.org>.

148 CIS Statute, see note 80, article 32; Soglashenie o statuse Economicheskogo Suda SNG (Agreement on the Status of the CIS Economic Court) of 6 July 1992, Sodruzhestvo (1992 (6)), para. 5. As for May 2011, the CIS EC has considered 92 requests for interpretation, took 59 decisions, and made 25


It thus follows that basic attention in the sphere of the maintenance of international peace and security within the CIS is paid to the issues of border management, management of joint systems and the struggle against particular types of crimes. Attempts to establish a valid peace-keeping system within the CIS failed because of the very skeletal legal regulations, discrepancies within the CIS law-making process,150 un-willingness of states to cooperate actively within the CIS and to imple-ment their commitments in the sphere,151 overwhelming influence of the Russian Federation, and a loose and confusing institutional struc-ture.152 At the same time, the positive impact of the CIS collective mili-tary forces in Abkhazia and Tajikistan is acknowledged.153

4. The CSTO Activity

The CSTO has a rather narrow competence. It is aimed at the estab-lishment of the effective collective security system and the struggle against new threats and challenges (CSTO Charter, arts 7-8), and is not involved in any other areas.154

advisory opinions and 14 orders interpreting earlier decisions and advisory opinions, available at <http://www.sudsng.org>.

149 See e.g. O sozdanii i printsipah mezhgosudarstvennogo suda SNG (On the Establishment and Principles of the CIS Interstate Court), Decision of the CIS CHS of 22 January 1993, Sodruzhestvo, (1993 (1)); Draft Statute of the CIS Court 1995, CIS EC Archives 1995; Draft Protocol to the Agreement on the CIS EC of 2008; Draft Statute of the CIS Court 2008, CIS EC Ar-chives of 2008.

150 E.g. Decision on the Maintenance of Collective Peace Forces in Abkhazia of 19 September 2003, prolonging the CMF mandate (para. 1).

151 E.g. Belarus expressly rejected to forward its military forces to the Collec-tive Peace-keeping Forces, military contingents have been primarily pro-vided by the Russian Federation. See also Korkelia, see note 60, 34.

152 CIS states made the first attempt to develop a joint position within the OSCE only in September 2004 – See F. Evers/ W. Zellner, “Regional Inter-ests in Maintaining and Diversifying the OSCE Field Operations: Support-ing a Trend”, OSCE Yearbook 10 (2004), 448 et seq. The first decision has been taken by the CIS CHS on 10 December 2010 - Interaction of the CIS Member States within OSCE.

153 See note 93. 154 The CSTO Secretary-General N. Bordyuzha includes in the CSTO’s ac-

tivities: military cooperation (harmonization of legislation of Member States; mutual help in the development of armed forces, etc.); coordination


CSTO derived from a collective defense pact (TCS, article 4) and thus collective self-defense is enshrined as one of the CSTO’s purposes in the CSTO Charter (article 3). It is disappointing, however, that until recently the CSTO documents referred to aggression rather than to an armed attack as a reason for self-defense155 since that provided a wide possibility for abuse in this area. An additional misunderstanding arose from the wording of article 2(3) of the Agreement on the CSTO Collec-tive Rapid Reaction Forces of 14 June 2009 (hereafter, CRRF Agree-ment) providing for “prevention and repelling of an armed attack in-cluding aggression”156 as one of the CRRF tasks. Currently, the CSTO institutions take steps to fill the gaps and eliminate several mistakes in the documents. In particular, the Protocol on Amendment of the TSC adopted on 10 December 2010 specified the meaning and scope of the notion “aggression” in article 4 of the TCS, which is currently under-stood as an “armed attack threatening security, stability, territorial in-tegrity and sovereignty” (Protocol, para. 1B).157 Other agreements

of positions on political-military issues; operational and military prepara-tion and training; formation and development of coalition and regional joint groupings of forces, establishment of CSTO collective forces and combined military systems; military technical and military economic coop-eration; combating contemporary challenges and threats; cooperation in emergency situations in the case of natural and environmental disasters; in-formation security – Bordyuzha, 2010, see note 3, 342-346. For details on the cooperation within the CSTO see A.A. Rozanov/ E.F. Dovgan, Collec-tive Security Treaty Organization (2002-2009), 2010, 19 et seq.

155 See in particular, Soglashenie ob osnovnyh printsipah voenno-tehnicheskogo sotrudnichestva mezhdu storonami Dogovora o Kollektiv-noj bezopasnosti (Agreement on the Main Principles of Military-Technical Cooperation among the Parties to the Treaty on Collective Security) of 20 June 2000 with Protocol of 19 September 2003, Bulletin of International Treaties 12 (2005), 3 et seq., article 10; Plan implementatsii Kontseptsii kollektivnoj bezopasnosti gosudarstv-uchastnikov DKB (Plan for Imple-menting the Concept of Collective Security of the TCS Member States), confirmed by the CSC Decision of 26 May 1995, Sodruzhestvo, (1995 (2)), 92 et seq., para. 2.3; Polozhenie o Sovete Kollektivnoj Bezopasnosti (Regu-lations for the Council of Collective Security) paras 5.3, 6; Polozhenie o Sovete Ministrov Oborony ODKB (Regulations for the Council of the De-fence Ministers), para. 5.1.2, both documents confirmed by the CSC Deci-sion of 28 April 2003.

156 Soglashenie o kollektivnyh silah operativnogo reagirovanija ODKB (CRRF Agreement) of 14 June 2009.

157 Protocol k Dogovoru o kollektivnoj bezopasnosti (Protocol to the TCS) of 10 December 2010.


signed on 10 December 2010 use the term “armed attack (aggres-sion)”.158

Contrary to the CIS and the OSCE, the idea of establishing collec-tive military forces was inherent to the CSTO from the moment the TCS was concluded. The Concept of Collective Security of 1995 pro-vided for the creation of coalition armed forces, which could be estab-lished by the CSTO Collective Security Council for peace-keeping op-erations envisaged in the decisions of the UN Security Council and OSCE (Part II).159 In accordance with article 2 (1) of the Agreement on the Status of Forces and Facilities of the Collective Security System of 11 October 2000, its parties could send military contingents to each other’s territory upon the request of the state concerned.160 The same agreement regulates the decision-making procedure and the status of military forces established to repel an armed attack against TCS states. At the CSC session in May 2001, it was decided to establish the CRRF Agreement in Central Asia.

Treaties concluded within CSTO provide for several types of collec-tive forces: peace-keeping forces established in accordance with the Agreement on Peace-Keeping Activity of CSTO of 6 October 2007161 and the CRRF Agreement. These types of collective forces, together with regional joint forces (military contingents formed on the basis of bilateral and multilateral agreements concluded within the CSTO sub-regions), military, police, security, emergency and special purpose per-sonnel of the CSTO Member States and groups of joint military sys-tems (e.g. joint air-defense system, intelligence, etc.) will form the

158 Agreement on the Functioning of Forces, see note 86, arts 2, 3, 5; Soglashe-

nie o statuse formirovanij sil i sredstv sistemy kollektivnoj bezopasnosti ODKB (Agreement on the Status of Forces and Facilities of the CSTO System of Collective Security) of 10 December 2010, article 2.

159 Kontseptsija kollektivnoj bezopasnosti gosudarstv-uchstnikov DKB (Con-cept of the Collective Security of the TCS Parties), confirmed by the CSC Decision of 10 December 1995, Sodruzhestvo, (1995 (1)).

160 Soglashenie o statuse formirovanij sil i sredstv sistemy kollktivnoj be-zopasnosti (Agreement on the Status of Forces and Facilities of the Collec-tive Security System) of 11 October 2000, Bulletin of International Treaties 5 (2002), 19 et seq.

161 Soglashenie o mirotvorcheskoj dejatel’nosti ODKB (Agreement on the Peace-Keeping Activity of CSTO) of 6 October 2007, Bulletin of Interna-tional Treaties 6 (2009), 23 et seq.


CSTO system of collective security as soon as the corresponding agreements come into force.162

The CSTO peace-keeping forces may consist of military, police and civilian personnel. They can be utilized for conflict prevention, peace-making, peace-keeping and peace-enforcement163 but are not designed for peace-building or collective self-defense (CSTO Peace-keeping Agreement, article 1). The CRRF are designed for the protection of the territorial integrity and political independence of the CSTO Member States, countering terrorism and ameliorating the consequences of natu-ral disasters (CRRF Agreement, article 2(3)).

All types of CSTO collective forces can be qualified as quasi-permanent formations. They remain under the national jurisdictions of the CSTO Member States until their commanders report to the central command on crossing the border into the host state.164 The decision on the use of collective forces or facilities is taken by the CSC165 upon the request of the host country.166 The CSTO peace-keeping forces can be used beyond its borders under the authorization of the UN Security Council (CSTO Peace-keeping Agreement, arts 3-4) or for non-forcible peace-keeping operations of other regional organizations (CSTO Peace-keeping Agreement, article 7).167 CSTO has repeatedly expressed its commitment to inform the UN Security Council on measures taken in self-defense and other steps related to the maintenance of interna-

162 Agreement on the Functioning of Forces, see note 86, arts 1, 5-10. 163 In the framework of the UN classification. Cf. also note 67, 17-19. 164 CSTO Peace-keeping Agreement, see note 161, article 2; CRRF Agree-

ment, see note 156, article 7. 165 CSTO Peace-keeping Agreement, see note 161, article 3; CRRF Agree-

ment, see note 156, article 4; Agreement on the Status of Forces, see note 158, article 2(4).

166 CSTO Peace-keeping Agreement, see note 161, article 3(1); CRRF Agree-ment, see note 156, article 4; Agreement on the Functioning of Forces, see note 86, article 12 (1); Agreement on the Status of Forces, see note 158, arts 2(1), 3(1).

167 Article 6 of the TCS with Protocol of 10 December 2010, see note 32, pro-vides for the possibility of using the forces and facilities of the CSTO sys-tem, of collective security beyond the CSTO borders in accordance with the UN Charter. Unlike the CSTO peace-keeping forces, CRRF can per-form tasks only within the territory of the CSTO Member States (CRRF Agreement, see note 156), article 2 (3), Agreement on the Functioning of Forces, see note 86, article 1(6).


tional peace and security.168 Until now, neither the CSTO peace-keeping forces nor the CSTO Rapid Reaction Forces have ever been used in field operations, although joint maneuvers take place annu-ally.169

CSTO’s cooperation in the struggle against crimes is directed against international terrorism and extremism, illegal migration, illicit traffick-ing in arms and drugs. To combat these crimes CSTO has established special working groups, holds regular meetings of the heads of corre-sponding institutions of Member States,170 produces program docu-ments,171 and maintains a common list of terrorist and extremist or-ganizations.172 The CSTO Rapid Reaction Forces are involved in counter-terrorism activities (CRRF Agreement, article 2(3)) in the course of maneuvers. In practice, however, CSTO does not go much further than establishing a framework for cooperation. Most of the ac-tivities in the sphere are carried out through the CIS systems and mechanisms.

CSTO and mechanisms for the peaceful settlement of disputes are very poorly adapted to Article 52 para. 2 of the UN Charter. The 168 TCS with Protocol of 10 December 2010, see note 32, article 4 (3); CSTO

Peace-keeping Agreement, see note 161, article 4; CRRF Agreement, see note 156, article 4.

169 Collective self-defence – Rubezh 2008 (military contingents of Armenia and the Russian Federation); Counter-terrorist operations – Rubezh 2009; Rubezh 2010; Cobalt 2010; Joint Tasks – Complex Joint Maneuvers in the CSTO Sub-regions, Vzaimodejstvie 2009, Vzaimodejstvie 2010.

170 Polozhenija o rabochih gruppah po bor’be s terrorizmom i protivodejstvii nezakonnoj migratsii pri komitete Sekretarej Sovetov Bezopasnosti ODKB (Provisions for Working Groups on Counter-Terrorism and Illegal Migra-tion - Issues at the Committee of the Secretaries of CSTO Security Coun-cils), approved by the Decision of the CSTO CSSC of 22 June 2005.

171 Plan kollektivnyh dejstvij gosudarstv-Chlenov ODKB po implementatsii Kont-terroristicheskoj strategii OON na period 2008-2012 (Plan for Col-lective Actions of the CSTO Member States in the Implementation of the UN Counter Terrorism Strategy for the Period of 2008-2012), confirmed by the CSC Decision of 5 September 2008; Agreement on the Main Princi-ples of Military-Technical Cooperation among the TCS Parties, see note 155.

172 O prakticheskih merah po usileniju roli ODKB v bor’be s terrorismom, re-ligioznym extremizmom, nelegal’noj migratsiej i transnatsionalnoj prestupnostju (On the Practical Measures to Enhance the CSTO Role in the Struggle against Terrorism, Religious Extremism, Illegal Migration and Transborder Crimes), CSTO CSSC Decision of 8 December 2003.


CSTO Peace-keeping Agreement lists “peaceful means and measures aimed at resolution of disputes” among other peace-keeping activities (article 1) but does not provide for any mechanism. Different types of consultations (regular or foreign policy consultations as a method of framing a common security policy; joint consultations on issues related to rising threats to security, territorial integrity of states, international peace and security, etc.)173 are the only feasible means of dispute settle-ment within the organization. The same holds true for disputes related to the implementation or interpretation of the CSTO Charter or other international treaties signed within the CSTO framework.174 Only one instrument provides for the possibility of establishing a mediation commission (Agreement of the Status of Forces, article 16(2)), and two – for transferring disputes to the Collective Security Council (Agree-ment on the Status of Forces, article 16(3); CSTO Charter, article 27).

CSTO is thus a regional organization of collective security that is given a rather narrow competence, which nevertheless includes the pos-sibility of establishing and using military forces. The Collective Military Forces established within the organization have not been used yet in field operations. Moreover, perspectives of their impartial and effective use are also not clear, in particular, in view of the unwillingness of Uz-bekistan and the remoteness of Belarus to take part even in maneu-vers.175 Serious shortages exist also in the sphere of dispute settlement, promotion and protection of human rights. The latter is typical also for CIS cooperation; in particular, the CIS Convention on Rights and Fun- 173 TCS with Protocol of 10 December 2010, see note 32, article 2; Polozhenie

o porjadke provedenija konsultatsij mezhdu gosudarstvami-uchstnikami DKB (Provision on the Procedure for Conducting Consultations), ap-proved by the CSC Decision of 28 May 1997; Polozhenije o funktsioniro-vanii mechanizma koordinatsii vneshne-politicheskoj dejatel’nosti gosu-darstv-chlenov ODKB (Regulations on the Functioning of the Mechanism of Coordination of the Foreign Policy Activity of CSTO) of 19 November 2003, Parts I (2), II (3).

174 CSTO Charter, see note 83, article 27; Agreement on the Main Principles of Military-Technical Cooperation, see note 155, article 11; Soglashenije o pravovom statuse ODKB (Agreement on the Status of CSTO) of 7 Octo-ber 2002, Bulletin of International Treaties 3 (2004), 10 et seq., article 31; Soglashenije o podgotovke voennyh kadrov dlja gosudarstv-chlenov ODKB (Agreement on the Training of Military Personnel of CSTO Mem-ber States) of 23 June 2005, article 16; CSTO Peace-keeping Agreement, see note 161, article 11; CRRF Agreement, see note 156, article 14; Agreement on the Functioning of Forces, see note 86, article 16.

175 Available at <http://www.dkb.gov.ru/index.html>.


damental Freedoms of 26 May 1995 came into force for only four states.176 Despite the numerous claims of the primary role of human rights while countering international terrorism,177 neither the CIS nor the CSTO documents provide for human rights guarantees in the sphere.178

5. Cooperation with the United Nations, Regional and Other Organizations

The OSCE, CIS and CSTO are rather open for cooperation with the United Nations and other organizations in the maintenance of interna-tional peace and security. As noted above, all of them have observer status at the UN General Assembly, they participate in the high-level meetings with the United Nations, regional and other international or-ganizations, in thematic debates on cooperation between the United Nations and regional organizations.179

OSCE: The OSCE marks the following spheres as falling within the shared United Nations-OSCE agenda: anti-terrorism initiatives; con-flict settlement and peace-building; early warning and conflict preven-tion; border management; environmental and economic aspects of secu-rity; anti-trafficking; democratization and human rights; freedom of the media.180 Contacts take place through mechanisms of high-level dia-logue, coordination and information-sharing at staff-level. In the face of the indivisibility of international security and as the most representative

176 Belarus, Kyrgyzstan, Russian Federation, Tajikistan. 177 Uniting against Terrorism: Recommendations for a Global Counter-

Terrorism Strategy, Report of the United Nations Secretary-General, Doc. A/60/825 of 27 April 2006, para. 118; The United Nations Global Counter-Terrorism Strategy, Doc. A/60/288 of 20 September 2006, Part IV; 2005 World Summit Outcome, see note 25, para. 85.

178 See CSTO Plan of Collective Actions on the Implementation of the UN Global Counter Terrorism Strategy, see note 171; CIS Treaty on the Coop-eration in the Struggle against Terrorism, see note 125; Programma Sovmestnyh Dejstvij ODKB, napravlennyh na bor’bu s terrorizmom i transportirovkoj narkotikov (CSTO Program of Joint Actions Aimed to Suppress Terrorism and Drug Trafficking) adopted by the CSC on 23 June 2006; Program of Coordination in the Struggle against Terrorism and other Violent Forms of Extremism, see note 124.

179 CIS since 2004 – Security Council Update Report, see note 25. 180 Available at <http://www.osce.org>.


organization in the region, the OSCE positions itself as a forum for co-operation of and with regional and sub-regional organizations and ini-tiatives in its area.181 Thus, the Charter for European Security describes the OSCE as a “flexible co-coordinating framework to foster co-operation, through which various organizations can reinforce each other drawing on their particular strengths” (para. 12). Legal grounds for cooperation between the OSCE and other regional organizations and institutions found their way into the Common Concept for the Development of Cooperation between Mutually Reinforcing Institu-tions of 1997182 and developed in the Platform for Cooperative Security, which sets forth principles and modalities of cooperation.183

Aware of the insufficiency of its competences and facilities for peace-keeping operations, the OSCE already in 1992 asserted its readi-ness “to seek, on a case-by-case basis, the support of international insti-tutions and organizations, such as the EC, NATO and WEU, as well as other institutions and mechanisms, including the peacekeeping mecha-nism of the CIS” (Helsinki Summit Declaration 1992, para. 20). In paras 52-53 of Decision III of the Helsinki Summit 1992, the OSCE asserted its right to request the EC, NATO and the WEU to make their re-sources available in order to support it in carrying out peace-keeping activities and to ask CIS and other institutions to support peace-keeping in the OSCE region. The wording of the Charter of European Security is more reasonable. The OSCE asserts its readiness rather than right to deploy forces of other organizations in its operations and clearly states that no sort of hierarchy, subordination or final division of labor between organizations is to be established (para. 12).184

CIS and CSTO are viewed by the OSCE among its partners for co-operation,185 that involves, inter alia, participation of the OSCE repre-sentatives in summits and ministerial meetings convened by these or-ganizations, bi- and multilateral meetings of high-ranking officials, and inviting CIS and CSTO representatives to take part in the OSCE Min-

181 Helsinki Summit Declaration 1992, see note 46, para. 19; Charter for Euro-

pean Security 1999, see note 46, para. 9; Corfu Informal Meeting, see note 9, para. 5.

182 Common Concept for the Development of Cooperation between Mutually Reinforcing Institutions 1997.

183 The Charter for European Security, see note 46, paras 1, 12-13; Part III. 184 See also Evers/ Kahl/ Zellner, see note 8, 18; Hummer/ Schweitzer, see note

21, 834. 185 Available at <http://www.osce.org>.


isterial Council meetings, OSCE conferences and other relevant events.186

CIS: Although the CIS has repeatedly adhered to cooperation with the United Nations, OSCE and other organizations,187 the only in-strument regulating possible mechanisms of cooperation is the Concept 1996. It provides for: support of peace-keeping operations of the United Nations and OSCE and cooperation with their missions; coop-eration in the settlement of disputes; information exchange (e.g. inform-ing the UN Security Council and appropriate OSCE organs on deci-sions in the sphere of the maintenance of peace and security), participa-tion in the development of legal regulation in the sphere of peace-keeping; and joint operations under the authority of the UN Security Council (para. 5). The CIS commitment to the OCSE’s objectives was set forth in the Helsinki Summit Declaration 1992 (Part I para. 10).

In the Georgia-Abkhazian conflict, CIS (initially Russian) military troops actively cooperated with UN military observers. In April 1994 CIS turned to the UN Security Council and OSCE Secretary-General to consider the possibility of cooperation with the United Nations and the OSCE with CIS Collective Military Forces.188 The Cease-fire and Separation Agreement between Georgia and Abkhazia of 1994 ex-pressly divided tasks between the CIS Collective Military Forces and UN military observers (paras 2.4, 2.7). At the same time, CIS has not taken part in the recent cooperation activities within the United Na-tions, transferring the chief responsibility in the sphere to CSTO.

186 OSCE Annual Report 2009, see note 116, 91, 104, 108; OSCE cooperation

with other organizations, available at <http://www.osce.org>; OSCE An-nual Report 2001 on Interaction of Organizations and Institutions in the OSCE Area, 2001. – Ɋ.8.

187 Concept 1996, see note 88, para. 4; The CIS adherence to cooperation with the UN and OSCE found its way into the CIS CHS Decision on the Use of Collective Military Forces, see note 136, preamble, para. 5(e), 6; Deci-sions of 8 February 2002 - 22 March 2002, para. 5; of 19 September 2003, para. 6. Technologiia 3000; Kompleksnyj plan po uregulirovaniju situatsii na Tadzhiksko-Afganskoj granites (Complex Plan of Action on the Settle-ment of the Situation at the Tajikistan-Afghan Border) adopted by the CIS CHS Decision of 26 May 1995, Sodruzhestvo, (1995(2)), para. 3.

188 O sroke prebyvanija, sostave i zadachah kollektivnyh mirotvorchskih sil v Respublike Tadzhikistan (On the Terms of Deployment, Cast and Tasks of the Collective Peace-keeping Forces in Tajikistan), Decision of the CIS CHS of 15 April 1994, Sodruzhestvo, (1994 (1)), para. 5.


CSTO: The CSTO Charter sets forth its readiness to cooperate with international organizations involved in the maintenance of international peace and security (article 4). As one form of cooperation, they could be granted observer status at the CSTO,189 although this option has never been used. The CSTO Secretary-General takes part in the meet-ings of the UN General Assembly and UN Security Council.190 Upon the visit of the UN Secretary-General to the CSTO Headquarters (March 2010), a Memorandum of Cooperation between the United Na-tions and CSTO Secretariats191 was signed. Cooperation with the CSTO is included in the agenda of the UN General Assembly192 and has been repeatedly considered by the latter.193 CSTO supports the use of its peace-keeping personnel in United Nations operations194 and co-operates with other UN institutions, including the UN Office on Drugs and Crime.195

CSTO puts emphasis on cooperation with the OSCE.196 Officials of these organizations mutually take part in each other’s activities through regular visits or cooperation at the working level (e.g. with the OSCE Conflict Prevention Center and its Action against Terrorism Unit).197 CSTO countries coordinate their position in order to express them-selves at the OSCE meetings.198 Special attention is also paid to coop-eration with other regional and sub-regional organizations. At the

189 CSTO Charter, see note 83, article 21; Pravila protsedury organov ODKB

(Rules of Procedure of the CSTO Organs), adopted by the CSC Decision of 18 June 2004, rule 15.

190 See inter alia note 27. 191 Joint Declaration on the UN/CSTO Secretariats Cooperation, Moscow, 18

March 2010; Cooperation between the UN and Regional Organizations, see note 50, paras 56, 125.

192 Agenda of the 65th Sess. of the UN General Assembly, para. 122(f). 193 Cooperation between the UN and Regional Organizations, see note 50. 194 Available at <http://www.dkb.gov.ru/index.html>. 195 Cooperation between the UN and Regional and Sub-regional Organiza-

tions, see note 27, 10-11. 196 Expressed in the speech of the CSTO Secretary-General at the joint meet-

ing of the OSCE Permanent Council and Forum for Security Cooperation, Vienna, of 15 April 2010, available at <http://www.osce.org/ pc/69165>; Bordyuzha, 2010, see note 3, 347-349.

197 Secretaries General of the OSCE and CSTO Discussed Cooperation of Organizations, Press release of 26 March 2009.

198 Written contribution by the CSTO Secretary-General of 1 December 2010, only available at <http://www.dkb.gov.ru/start/index.htm>.


meeting of 12 October 2010, these organizations decided to cooperate in security, economic and social areas and to establish a special group responsible for interaction between them.199

III. Conclusion

The present-day international community faces a range of new threats and challenges, including internal conflicts, newly emerged but non-recognized states, international terrorism, transboundary crimes, illicit trafficking in arms, drugs or human beings, computer network attacks, etc. This has resulted in a new (broader) approach to international secu-rity as such. Where traditional means of maintenance of international peace and security are inadequate, regional organizations get involved in new problems and gradually expand their tasks and competences. The latter, besides traditional prevention and resolution of ongoing or imminent conflicts, currently include the prevention of the very possi-bility of conflicts through disarmament, arms control and confidence and security building measures in inter-state relations and the struggle against new threats and challenges.

The UN Charter, due to its flexible nature, still provides a sufficient framework for the activity of regional organizations in the maintenance of international peace and security. However, the subordination of re-gional organizations to and their utilization by the UN Security Coun-cil have not come about as envisaged in the UN Charter. In reality, re-gional organizations are welcome to take any activity they consider ne-cessary in order to prevent or handle conflicts, to settle disputes or to face new threats and challenges. The UN Security Council has retained the general supervisory function, which concerns the need to request its authorization for an enforcement action and its capacity to enhance the legality of a particular operation through endorsing it. The UN Security Council though cannot prescribe any rules or modalities for regional activity but rather adjusts UN operations with regard to actions already taken by regional organizations.

199 Joint Statement of High Officials of CSTO, CIS and SCO of 12 October

2010, available at <http://www.dkb.gov.ru/start/index.htm>; see also Co-operation with Other International Organizations and Structures available at <http://www.dkb.gov.ru/start/index.htm>; Bordyuzha 2010, see note 3, 345.


International organizations involved into the maintenance of inter-national peace and security in the CIS region differ in composition, competences, tasks and activities. All of them (CIS, OSCE, CSTO) however, can be qualified under Chapter VIII of the UN Charter. De-spite the reasonable criticism regarding the unwillingness to act;200 in-adequate material; military or technical facilities; the use of double standards; insufficient transparency in the course of operations; over-whelming Russian dominance over politics in the region;201 poor legal technique and expertise, as well as an “emptiness of commitments” (in particular within CIS and CSTO), it is maintained here that prerequi-sites for the establishment of an effective system of regional security do already exist.

It would be rather naive to expect that the situation will change in-stantly and drastically, but it has already gradually evolved during the last decade. The CIS states have become accustomed to new circum-stances, developed necessary state institutions and legal systems. De-spite the existing negligence regarding legal technique and expertise, at-tempts have been made to review, clarify and structure CIS and CSTO databases.

If one looks at the system of regional organizations acting in the re-gion, it appears that the OCSE has already developed and introduced a very detailed and comprehensive system of confidence and security building measures as well as mechanisms for the diplomatic settlement of international disputes. Its expertise and commitments in human, economic and environmental dimensions could be very helpful in en-suring the rule of law in the CIS states. CIS possesses a structured sys-tem of responses to the new threats and challenges in post-Soviet terri-tory. CSTO has established a system of collective forces to be used for self-defense, peace-keeping, peace-enforcement, in natural and envi-ronmental emergencies and in the struggle against new threats and chal-lenges. Undoubtedly, the above-mentioned announcements about the establishment of an effective system of regional security are premature. Meanwhile, existing organizations (due to the complementarity of their

200 A clear example in the sphere is that despite the participation of the CSTO,

in the Bishkek considerations of the situation in Kyrgyzstan, joint declara-tions have been taken only by the UN, OSCE, EU – Statements by the Special Envoys of UN, OSCE and EU on Kyrgyzstan of 16 June 2010, 14 September 2010 and 22 November 2010, available at <http://www.consil-ium.europa.eu>.

201 Evers/ Zellner, see note 152, 448-462.


tasks, competences and facilities) could together establish such a com-prehensive system. This requires, however, not to focus solely on na-tional interests but the willingness to cooperate with each other and the relevant UN institutions.

Protection of Community Interests in International Law: The Case of the Law of the Sea

Yoshifumi Tanaka*



I. Introduction 1. The Emergence of Community Interests in International Law 2. Limits of the Principle of Reciprocity

II. Protection of Community Interests in the Area 1. Principle of the Common Heritage of Mankind

a. Community Interests in the Area b. Raison d’être of the Principle of the Common Heritage of Man-

kind 2. Protection of Community Interests through the International Seabed

Authority a. Original Regime under the UNCLOS b. New Regime under the 1994 Implementation Agreement

3. Conclusions III. Protection of Community Interests in Marine Environmental Protection

1. Port State Jurisdiction: An Individual Application of the Law of Dé-doublement Fonctionnel a. Port State Jurisdiction and Scelle’s Theory of the Law of Dédou-

blement Fonctionnel b. Limits of Port State Jurisdiction

2. Port State Control: An Institutional Application of the Law of Dé-doublement Fonctionnel a. The Memoranda of Understanding on Port State Control b. Commentary

3. Conclusions IV. Protection of Community Interests in the Conservation of Marine Living

Resources 1. The Unilateral Approach and Its Limits

a. General Considerations b. Conservation of Living Resources in the EEZ

2. The Institutional Approach and Its Limits a. At-Sea Inspection of Non-Contracting Party Vessels on the High

Seas b. Port Inspection of Non-Contracting Party Vessels

3. Conclusions V. General Conclusions

Tanaka, Protection of Community Interests in International Law 331

I. Introduction

1. The Emergence of Community Interests in International Law

It is argued that growing awareness of common interests of the interna-tional community leads to the structural change of international law. For instance, in 1994, Judge Simma stated that “[A] rising awareness of the common interests of the international community, a community that comprises not only states, but in the last instance all human beings, has begun to change the nature of international law profoundly.”1 More recently, the learned Judge highlighted that,

“Indeed, international law has undoubtedly entered a stage at which it does not exhaust itself in correlative rights and obligations run-ning between states, but also incorporates common interests of the international community as a whole, including not only states but all human beings.”2 Likewise, Judge Cançado Trindade expressed the view that, “The

growing consciousness of the need to bear in mind common values in pursuance of common interests has brought about a fundamental change in the outlook of International Law in the last decade.”3

The “common interest of the international community as a whole” or “community interests” are an elusive concept and it is difficult to a

* The author would like to dedicate this article to Professor Lucius Caflisch

for his seventy-fifth anniversary. 1 B. Simma, “From Bilateralism to Community Interest in International

Law”, RdC 250 (1994), 217 et seq. (234). 2 Id., “Universality of International Law from the Perspective of a Practitio-

ner”, EJIL 20 (2009), 265 et seq. (268). Furthermore, in the Festschrift in his honour, many writers addressed community interests in international law. See U. Fastenrath/ R. Geiger/ D.E. Khan/ A. Paulus/ S. von Schorle-mer/ C. Vedder (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma, 2011.

3 A.A. Cançando Trindade, “International Law for Humankind: Towards a New Jus Gentium”, RdC 316 (2005), 9 et seq. (35). See also V. Gowlland-Debbas, “Judicial Insights into Fundamental Values and Interests of the In-ternational Community”, in: A.S. Muller et al. (eds), The International Court of Justice: Its Future Role after Fifty Years, 1997, 327 et seq.; id., “An Emerging International Public Policy?”, in: Fastenrath et al., see note 2, 241 et seq.


priori define it in the abstract.4 As Simma himself pointedly observed, the existence of common interests does not derive from scientific ab-straction but rather flows from the recognition of concrete problems.5 Despite its elusive nature, it appears that currently no one can deny the increasing importance of the protection of community interests which transcend interests of each state and involve the vital needs for the sur-vival of mankind.

In fact, at the normative level, the community interests seem to be reflected in legal concepts, such as jus cogens,6 obligations erga omnes,7 invocation of responsibility by a state other than an injured state,8 indi-vidual criminal responsibility,9 etc. While no detailed examination of

4 In this contribution, the term “common interests of the international

community” and “community interests” will be used interchangeably. 5 Simma tentatively defines “community interests” as “a consensus according

to which respect for certain fundamental values is not to be left to the free disposition of states individually or inter se but is recognized and sanc-tioned by international law as a matter of concern to all states.” Simma, see note 1, 233. According to Simma, examples of common interests include: international peace and security, solidarity between developed and develop-ing countries, protection of the environment, the common heritage of mankind, and the protection of human rights, ibid., 235 et seq. For an analysis of the concept of community interests, see I. Feichtner, “Commu-nity Interest”, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public In-ternational Law, 2011.

6 Article 53 of the Vienna Convention on the Law of Treaties. 7 The Barcelona Traction, ICJ Reports 1970, 3 et seq. (32, paras 33-34). The

Institut de Droit International defines an obligation erga omnes as “an ob-ligation under general international law that a state owes in any given case to the international community, in view of its common values and its con-cern for compliance, so that a breach of that obligation enables all states to take action.” Resolution of the Krakow Session, Obligations Erga Omnes in International Law, 2005, article 1 (a), available at <http://www.idi-iil.org>.

8 Cf. arts 40, 41 and 48 of the ILC’s Draft Articles on Responsibility of States for Internationally Wrongful Acts. For an analysis in some detail of the concept of the “injured state”, see in particular, K. Kawasaki, “The ‘In-jured State’ in the International Law of State Responsibility”, Hitotsubashi Journal of Law and Politics 28 (2000), 17 et seq. See also, by the same writer, “Draft Articles on State Responsibility Adopted by the Interna-tional Law Commission in 2001: A Brief Overview”, Hitotsubashi Journal of Law and Politics 30 (2002), 35 et seq.

9 Cf. preamble, para. 4, Rome Statute of the International Criminal Court.


these concepts can be made here, it can be observed that to a certain ex-tent, they are enshrined in positive international law.10 In this sense, it may be said that the protection of community interests is gradually be-ing effected in positive international law.

On the other hand, an issue that needs further consideration is whether and to what extent effective mechanisms for the protection of community interests exist in contemporary international law. In this re-gard, Villalpando pointedly observed that, “International law, in other words, has been very conservative of its traditional institutions, which have not been challenged by the new developments towards the protec-tion of community interests …”11

In his view, “the objective of achieving the common good has been pursued through legal tools that were not, at their origins, elaborated for that purpose and are better suited to the protection of individual in-terests.”12

Likewise, Sato pointed to “a problem or dilemma inherent in the in-ternational society, where there is no alternative but to act by means of treaties which can, based on the principle of contract, bind only con-senting states in order even to realize the public interest and organiza-tion despite the fact that the public interest of the whole of international society has become apparent.”13

In response to this dilemma, it becomes necessary to explore possi-bilities of effective mechanisms for the protection of community inter-ests in international law.

2. Limits of the Principle of Reciprocity

In this regard, particular attention must be devoted to the limits of the principle of reciprocity as a mechanism for ensuring compliance with 10 In his recent article, Villalpando has persuasively demonstrated the emer-

gence of community interests in positive international law by examining those concepts. S. Villalpando, “The Legal Dimension of the International Community: How Community Interests are Protected in International Law”, EJIL 21 (2010), 387 et seq.

11 Ibid., 410. 12 Ibid. 13 T. Sato, “Legitimacy of International Organizations and Their Decisions:

Challenges that International Organizations Face in the 21st Century”, Hi-totsubashi Journal of Law and Politics 37 (2009), 11 et seq. (15).


rules of international law. While this principle has more than one mean-ing, it may be defined as “the relationship between two or more states according each other identical or equivalent treatment.”14 According to this principle, compliance with rules of law results from the interest a state perceives in the reciprocal action of another state or states. In other words, the principle of reciprocity seeks to secure the national in-terest of each state on the basis of the symmetry of rights and obliga-tions.15 Where a state breached an obligation, in response, an injured state may take countermeasures against the responsible state, or termi-nate or suspend treaty relations in accordance with article 60 of the Vi-enna Convention on the Law of Treaties.

Traditionally reciprocity has been a principal leitmotiv for compli-ance with rules of international law. In particular, the principle of recip-rocity plays an important role in respect of the law of treaties, the law of armed conflict, rules on the treatment of aliens, the law of diplomatic privileges and immunities and the law of international economic rela-tions, etc.16 Considering that reciprocity rests on a decentralised nature of the international legal system, which is an essential character of in-ternational law, this principle will not lose its importance.

In certain fields of international law, however, the principle of recip-rocity is seen as not being effective in securing compliance with relevant rules, the case in point being treaties concerning the protection of hu-man rights. Those treaties seek to protect the dignity of the individual human being in general, detached from the individual interests of states. In this respect, the Inter-American Court of Human Rights held that “modern human rights treaties in general, and the American Conven-tion in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mu-

14 B. Simma, “Reciprocity”, in: R. Bernhardt (ed.), Encyclopedia of Public In-

ternational Law, Vol. IV, 2000, 29 et seq. (29). 15 H. Bull, The Anarchical Society: A Study of Order in World Politics, 3rd

edition, 2002, 134; M. Virally, “Le principe de réciprocité dans le droit in-ternational contemporain”, RdC 122 (1967), 1 et seq. (19).

16 Simma, see note 14, 30-31; Virally, see note 15, 22. It must be noted that the applicability of international humanitarian law does not rest only on reci-procal obligation. For instance, common article 3 of the Geneva Conven-tions and article 75 of Additional Protocol I are applicable regardless of re-ciprocity; A. Paulus, “Reciprocity Revisited”, in: Fastenrath et al., see note 2, 113 et seq. (135).


tual benefit of the contracting states.”17 It may be said that the human rights treaties create objective obligations to protect community inter-ests. Hence it is arguable that the principle of reciprocity ensuring re-ciprocal engagements cannot provide an adequate incentive for some states to comply with the human rights treaties.18 In relation with this, it must be remembered that countermeasures shall not affect obligations for the protection of fundamental human rights.19 Furthermore, article 60 para. 5 of the Vienna Convention on the Law of Treaties makes clear that termination or suspension of the operation of a treaty as a conse-quence of its breach does not “apply to provisions relating to the pro-tection of the human person contained in treaties of humanitarian char-acter, in particular, to provisions prohibiting any form of reprisals against persons protected by such treaties.” Human rights law has al-ready gained centre stage in international law and one can detect the in-creasing interactions between human rights law and other branches of international law, such as international human rights law and UN law. Furthermore, the ICJ, upheld the complementarity of human rights law and humanitarian law.20 This situation might create a challenge with re-gard to the traditional mechanism of international law on the basis of the principle of reciprocity.

Similarly, the protection of the global environment seems to be con-sidered as a community interest because ultimately environmental pro-tection involves the protection of the life of all human beings in the

17 Advisory Opinion No. OC-2/82 of 24 September 1982, The Effect of Re-

servations on the Entry into Force of the American Convention (Arts 74 and 75), reprinted in ILM 22 (1983), 37 et seq. (47, para. 29).

18 L. Henkin, International Law: Politics and Value, 1995, 206. Virally has ar-gued that there is an antinomy between the principle of reciprocity and the protection of human rights. See Virally, see note 15, 20. See also Simma, see note 1, 242-243.

19 Article 50 (1) (b) of the ILC’s Draft Articles on Responsibility of States for Internationally Wrongful Acts.

20 Legal Consequences of the Construction of a Wall in the Occupied Palestin-ian Territory, ICJ Reports 2004, 136 et seq. (178, para. 106). See also Gowl-land-Debbas, see note 3, 247-255; J.A. Pastor Ridruejo, “Droit internatio-nal des droits de l’homme et droit international humanitaire: leurs rapports à la lumière de la jurisprudence de la Court internationale de justice”, in: M.G. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolu-tion through International Law. Liber Amicorum Lucius Caflisch, 2007, 399-407.


world.21 Like human rights treaties, treaties involving global environ-mental protection do not provide reciprocal obligations on the basis of mutual advantages because no single state is responsible and the inter-ests of all states are at issue.22 Furthermore, it must be noted that non-compliance by developing states with obligations concerning environ-mental protection may result from inadequate financial, technological and human resources. In some cases, it may be difficult for developing states to implement the same symmetrical obligations as developed states on this matter. Hence the effectiveness of global environmental protection cannot be supported relying exclusively on the principle of reciprocity which presupposes the formal equality of states.

The protection of community interests needs collective action be-cause such interests involve vital needs for the survival of mankind as a whole. However, the principle of reciprocity essentially governs bilat-eral and contractual relations between atomistic states.23 Accordingly, it may be argued that the traditional compliance mechanism on the basis of the principle of reciprocity contains an inherent limit in the protec-tion of community interests.24

Actually the protection of community interests is increasingly im-portant in the law of the sea,25 and the effectiveness of the principle of reciprocity seems to be in need of reconsideration. A classical example involves the suppression of piracy.26 Pirates have been considered as a hostes humani generic or “enemies of all mankind” and, consequently, on the high seas, or in any other place outside the jurisdiction of any state, “every state may seize a pirate ship or aircraft, or a ship or aircraft 21 Simma, see note 1, 238-240. For an analysis in some detail of community

interests in the environmental protection, see J. Brunnée, “‘Common Inter-est’ – Echoes from an Empty Shell? Some Thoughts on Common Interest and International Environmental Law”, ZaöRV/ HJIL 49 (1989), 791 et seq.; U. Beyerlin, “State Community Interests and Institution-Building in International Environmental Law”, ZaöRV/ HJIL 56 (1996), 602 et seq.

22 A.E. Boyle, “Saving the World? Implementation and Enforcement of In-ternational Environmental Law Through International Institutions”, Jour-nal of Environmental Law 3 (1991), 229 et seq. (230).

23 Simma, see note 1, 232-233. 24 Paulus, see note 16, 123. 25 Cf. J.A. Pastor Ridruejo, “Le droit international à la veille du vingt et

unième siècle: normes, faits et valeurs, Cours général de droit international public”, RdC 274 (1998), 9 et seq. (254).

26 In this respect see the article by A.S. Kolb/ T.R. Salomon/ J. Udich in this Volume, 105 et seq.


taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.”27 The courts of the state which car-ried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ship, air-craft or property, subject to the rights of third parties acting in good faith. The seizure of piracy is the oldest and the most well attested ex-ample of universal jurisdiction.28 Considering that piracy is a source of serious threat to sea communication and human life, the suppression of piracy can be regarded as a community interest. Since rules governing piracy do not rest on bilateral and contractual legal relations, it seems clear that the suppression of piracy cannot be effectively secured by the decentralised mechanisms on the basis of the principle of reciprocity. In fact, institutionalised counter-piracy operations through various organs, such as IMO, NATO, the European Union and the United Nations, are increasingly important.

A further illustrative example may be the legal regime governing the activities in the Area, namely, “the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.”29 As will be seen, the Area and its resources are the common heritage of mankind, and its legal regime seeks to promote the benefit of mankind as a whole. It seems arguable that rules governing the Area are not based on mutual advantages between states, and, consequently, the effectiveness of these rules cannot be supported by the principle of reciprocity.

Furthermore, presently the protection of the marine environment is a matter of serious concern for the international community. Marine pollution severely damages the marine environment and ecosystems, and, in some cases, the environmental damage may be irreversible. Given that a healthy marine environment provides the foundation for all life, there appears to be a general sense that the protection of the ma-rine environment is considered as a common interest of the interna-tional community as a whole. Substantive rules regulating marine pollu-

27 Article 105 of the 1982 United Nations Convention on the Law of the Sea

(hereafter the UNCLOS). For the text of the Convention, UNTS Vol. 1833 No. I-31363.

28 M.D. Evans, “The Law of the Sea”, in: M.D. Evans (ed.), International Law, 2nd edition, 2006, 623 et seq. (637); M. Shaw, International Law, 6th edition, 2008, 397. The UN Security Council, in S/RES/1976 (2011) of 11 April 2011, explicitly recognised that “piracy is a crime subject to universal jurisdiction”, op. para. 14.

29 Article 1 (1) of the UNCLOS.


tion do not purport to provide reciprocal rights and obligations on the basis of mutual advantages. Hence the principle of reciprocity seems to be inadequate with a view to securing compliance with the rules on this subject.

Likewise the conservation of marine living resources is crucial be-cause these resources are an important source of protein in a situation of food shortage at the global level. Yet the depletion of marine living resources is becoming a matter of more pressing concern.30 State prac-tice demonstrates that compliance with rules concerning the conserva-tion of these resources cannot be effectively ensured by self-regulation on the basis of the principle of reciprocity.

Overall it is becoming apparent that the effectiveness of rules of the law of the sea cannot be supported only by the principle of reciprocity. A question thus arises how it is possible to protect community interests in law, without relying on the principle of reciprocity. With this ques-tion as a backdrop, this article will seek to address possible mechanisms for the protection of community interests in the specific context of the international law of the sea. In so doing, it will purport to identify basic models for the protection of community interests in international law. To this end, it will focus particularly on three issues.31 After the intro-duction in Part I., Part II. will discuss the protection of community in-terests in the Area with particular reference to the jurisdiction of the In-ternational Seabed Authority (hereafter ISA). Part III. will address the protection of community interests in marine environmental protection. Scelle’s theory of the law of dédoublement fonctionnel will provide an important insight into this consideration. Part IV. will examine the pro-tection of community interests in conservation of marine living re-sources. On the basis of this consideration, models of the protection of community interests in international law will be discussed in Part IV.

30 For a recent study on conservation of marine living resources, see Y. Ta-

naka, “The Changing Approaches to Conservation of Marine Living Re-sources in International Law”, ZaöRV/ HJIL 71 (2011), 291 et seq.

31 Thus this study will not seek to examine each and every issue which may involve community interests in the law of the sea. The role of international courts and tribunals in the protection of community interests is beyond the scope of this contribution because this is a distinct subject involving inter-national dispute settlement. On this issue, see R. Wolfrum, “Enforcing Community Interests Through International Dispute Settlement: Reality or Utopia?”, in: Fastenrath et al., see note 2, 1132 et seq.


II. Protection of Community Interests in the Area

1. Principle of the Common Heritage of Mankind

a. Community Interests in the Area

While the principle of the common heritage of mankind and related concepts can be seen in various branches of international law,32 the most advanced regime on the basis of this principle can be found in the deep seabed regime governing the Area. Article 136 of the UNCLOS states “The Area and its resources are the common heritage of man-kind.” Thus all rights in the resources of the Area are vested in mankind as a whole, on whose behalf the ISA shall act by virtue of article 137 para. 2.33 Article 140 para. 1 further provides that,

“Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States and of peoples who have not attained full inde-pendence or other self-governing status recognized by the United Nations in accordance with General Assembly resolution 1514 (XV) and other relevant General Assembly resolutions.” Article 140 para. 2 calls for the equitable sharing of financial and

other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis, in accordance with article 160 para. 2 (f)(i). Moreover, article 141 provides that the Area shall be open to use exclusively for peaceful purposes by all states.

The cumulative effect of these provisions seems to suggest that the principle of the common heritage of mankind seeks to promote the common interest of mankind as a whole.34 The term “mankind” is a trans-spatial and trans-temporal concept. It is trans-spatial because “mankind” includes all people on the planet. It is trans-temporal be- 32 See for instance article 11 of the 1979 Agreement Governing the Activities

of States on the Moon and Other Celestial Bodies. 33 Under article 133 (a) of the UNCLOS, “resources” means “all solid, liquid

or gaseous mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic nodules.”

34 Kiss considered that the common interest of mankind was the foundation of the common heritage of mankind. A.C. Kiss, “La notion de patrimoine commun de l’humanité”, RdC 175 (1982), 99 et seq. (229 and 231).


cause “mankind” includes both present and future generations.35 It would seem to follow that the common interest of mankind means the interest of all people of present and future generations. Considering that today the scope of the international community is well beyond the community of states,36 it may be reasonable to argue that the concept of the common interest of mankind as a whole is equivalent to that of the community interest.

b. Raison d’être of the Principle of the Common Heritage of Mankind

In this regard, it is important to note that the principle of the common heritage of mankind emerged as an antithesis of the traditional princi-ples governing the law. Traditionally the law of the sea was dominated by the principle of freedom and the principle of sovereignty.37 The principle of freedom purports to ensure non-appropriation of the oceans and the freedom of various uses of the oceans, such as naviga-tion, over flight, laying submarine cables and pipelines, construction of artificial islands, fishing and marine scientific research.38 By contrast, the principle of sovereignty seeks to safeguard the interest of coastal states. This principle essentially promotes the extension of national ju-risdiction into offshore spaces and supports the territorialisation of the oceans. In broad, the reconciliation of the principle of freedom and the principle of sovereignty has until recently been a central issue in the in-ternational law of the sea. It could well be said that the principal focus 35 R.J. Dupuy, “La notion de patrimoine commun de l’humanité appliquée

aux fonds marins”, in: R.J. Dupuy, Dialectiques du droit international: sou-veraineté des Etats, communauté internationale et droits de l’humanité, 1999, 189 et seq.; Kiss, see note 34, 240.

36 Article 53 of the Vienna Convention on the Law of Treaties limits the scope of the international community to the community of states. Considering that the state is not the only subject of international law, however, there appears to be no a priori reason that the international community should be limited to the community of states. In this respect, Judge Cançado Trin-dade argues that “the conception of international community encompasses today all subjects of international law – states, international organizations, individuals, and humankind”, see note 3, 219. See also P.M. Dupuy, “L’unité de l’ordre juridique international: Cours général de droit interna-tional public (2000)”, RdC 297 (2002), 9 et seq. (255).

37 D.P. O’Connell/ I.A. Shearer, The International Law of the Sea, Vol. I, 1982, 1.



of many of the traditional rules of the law has been on the safeguard of mutual interests between states on the basis of the two principles. Nonetheless, it was debatable whether the traditional principles could provide an equitable framework governing the activities in the deep seabed beyond the limits of national jurisdiction.

With regard to the legal status of natural resources in the deep sea-bed beyond the limits of national jurisdiction, three different views ex-isted.39 According to a first view, the seaward limit of coastal states’ continental shelves moved into deeper waters under the “exploitability” criterion enshrined in article 1 of the 1958 Geneva Convention on the Continental Shelf. According to this view, ultimately the whole ocean floor would be divided among coastal states.40 It would seem to follow that natural resources in the deep seabed would be subject to the sover-eign rights of coastal states. According to a second view, the deep sea-bed is res communis, and, thus, the ocean beds as well as natural re-sources there would be subject to the freedom of the high seas. Conse-quently, whereas no state can appropriate the ocean floor, the Area and its resources could be used by any state. On the other hand, according to a third view, the deep seabed as well as its natural resources should be treated as res nullius. In this view, mining states would be able to ap-propriate the ocean floor as well as its natural resources through occu-pation.

In spite of differences in opinion, arguably the practical result of those interpretations would be almost the same: only technologically developed states could be best placed to explore and exploit natural re-sources in the deep ocean floor.41 Furthermore, unrestricted seabed mining may entail the risk of having negative impacts upon land-based exporters of the minerals in question, in particular those which are de-veloping states. Nonetheless, such a situation would worsen uneven de-velopment between developed and developing countries; and the con-sequence would be hardly acceptable for the developing states, which have called for the establishment of a New International Economic Or-der (NIEO).42 Hence it became apparent that neither the principle of

39 R.R. Churchill/ A.V. Lowe, Law of the Sea, 3rd edition, 1999, 224-225. 40 This view was typically expressed by Oda; S. Oda, International Control of

Sea Resources, 1989, 167. 41 Churchill/ Lowe, see note 39, 225. 42 With respect to the relationship between the NIEO and the common heri-

tage of mankind, see for instance, E. Mann Borgese, “The New Interna-tional Economic Order and the Law of the Sea”, San Diego L. Rev. 14


sovereignty nor the principle of freedom could provide a legal frame-work ensuring the fair and equitable sharing of natural resources of the Area.

Against that background, in 1967, Maltese Ambassador Pardo made a historic proposal that the seabed and its natural resources beyond the limits of national jurisdiction should be the common heritage of man-kind. In response, the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction was adopted by the General Assembly in 1970 (hereafter the 1970 Declaration).43 This Declaration declared,

“The sea bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction (hereafter referred to as the area), as well as the resources of the area, are the common heritage of man-kind.” It further pronounced that, “The area shall not be subject to appropriation by any means by States or persons, natural or juridical, and no state shall claim or ex-ercise sovereignty or sovereign rights over any part thereof.” Moreover, the 1970 Declaration made clear that, “All activities regarding the exploration and exploitation of the re-sources of the area and other related activities shall be governed by the international régime to be established ... ” Overall the 1970 Declaration did seem to suggest that neither the

principle of sovereignty nor the freedom of the seas applies to the sea-bed activities in the Area.

Later, the essential elements set out in the 1970 Declaration were en-shrined in the UNCLOS. Article 137 para. 1 explicitly prohibits the appropriation of the Area and its resources on the basis of the principle of sovereignty, by providing that,

“No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any state or natural or juridical person appropriate any part thereof. No such

(1976-1977), 584 et seq.; L. Juda, “UNCLOS III and the New International Economic Order”, Ocean Dev. Int. Law 7 (1979), 221 et seq.; K. Baslar, The Concept of the Common Heritage of Mankind in International Law, 1998, 210-216.

43 A/RES/2749 (XXV) of 17 December 1970. This resolution was adopted with 108 in favour, none against, and 14 abstentions.


claim or exercise of sovereignty or sovereign rights nor such appro-priation shall be recognised.” Thus there is no scope to apply the traditional principle of sover-

eignty to the Area and its resources. At the same time, there is no free-dom to explore and exploit natural resources in the Area because, as will be seen below, all seabed activities there are under the control of the ISA. In this regard, the common heritage of mankind in the Area must be distinguished from res communis. As a consequence, the two traditional principles in the law of the sea are clearly excluded in the le-gal framework governing the Area. It has to be stressed that the princi-ple of the common heritage of mankind came into existence in the situa-tion where neither the principle of sovereignty nor that of freedom could provide for a legal framework for ensuring the common interest of mankind as a whole.

2. Protection of Community Interests through the International Seabed Authority

a. Original Regime under the UNCLOS

The next issue involves a specific mechanism for ensuring the common interest of mankind as a whole. Under article 137 para. 2 of the UN-CLOS, all rights in the resources of the Area are vested in mankind as a whole, on whose behalf the ISA shall act. Accordingly, activities in the Area shall be organized, carried out and controlled by the ISA on be-half of mankind as a whole in accordance with article 153 para. 1.44 As a consequence, common interests of mankind arising from seabed activi-ties in the Area are to be promoted through the ISA in a centralised manner. To this end, the ISA exercises prescriptive and enforcement ju-risdiction regulating a wide range of issues concerning the Area. The 44 “Activities in the Area” means all activities of exploration for, and exploita-

tion of, the resources of the Area (article 1 (3) of the UNCLOS). The Sea-bed Disputes Chamber of the International Tribunal for the Law of the Sea specified that “activities in the Area” include: drilling, dredging, coring, and excavation; disposal, dumping and discharge into the marine environment of sediment, wastes or other effluents; and construction and operation or maintenance of installations, pipelines and other devices related to such ac-tivities, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Case No. 17, 1 February 2011, 28, para. 87. The text is available at <http://www.itlos.org>.


principal features of the ISA’s jurisdiction can be summarised as fol-lows.

The powers and functions of the ISA are limited to matters provided by the UNCLOS (limitation rational materiae).45 Concerning those matters, however, the ISA has legislative and enforcement jurisdiction over activities in the Area. Article 17 para. 1 of Annex III provides that,

“The Authority shall adopt and uniformly apply rules, regulations and procedures in accordance with article 160, paragraph 2(f)(ii), and article 162, paragraph 2 (o)(ii), for the exercise of its functions as set forth in Part XI on, inter alia, the following matters: ... ” Such matters include: (a) administrative procedures relating to pros-

pecting, exploration and exploitation in the Area; (b) operations; (c) fi-nancial matters; (d) implementation of decisions taken pursuant to arti-cle 151 para. 10 and article 164 para. 2 (d). The ISA is also empowered to adopt appropriate rules concerning the protection of human life (ar-ticle 146), protection of the marine environment (article 145), installa-tions used for carrying out activities in the Area (article 147 para. 2 (a)), the equitable sharing of financial and other economic benefits derived from activities in the Area and the payments and contributions made pursuant to article 82 (article 160 para. 2 (f)-(i)). Furthermore, the ISA has the power to consider and approve the rules, regulations and proce-dures of the Authority. These rules, regulations and procedures shall re-late to prospecting, exploration and exploitation in the Area (articles 160 para. 2 (f)-(ii) and 162 para. 2 (o)-(ii)).

Concerning the enforcement jurisdiction, article 153 para. 5 confers on the ISA the right to take at any time any measures provided for un-der Part XI with a view to ensure compliance with its provisions and the exercise of the functions of control and regulation assigned to it hereunder or under any contract. Specifically, the ISA possesses the right to inspect all installations in the Area used in connection with ac-tivities in the Area. The Council of the ISA is empowered to supervise and co-ordinate the implementation of the provisions of Part XI on all questions and matters within the competence of the ISA and invite the attention of the Assembly to cases of noncompliance under article 162 para. 2 (a). Notably, the ISA has also the power to sanction non-compliance. In this regard, article 18 para. 1 (a) of Annex III provides that a contractor’s rights under the contract may be suspended or ter-minated in cases where the contractor has conducted his activities in



such a way as to result in serious, persistent and wilful violations of the fundamental terms of the contract, Part XI and the rules and regulation of the ISA; or where the contractor has failed to comply with a final binding decision of a dispute settlement body applicable to him.

The ISA may also impose upon the contractor monetary penalties proportionate to the seriousness of the violation in conformity with ar-ticle 18 para. 2 of Annex III. A State Party which has grossly and persis-tently violated the provisions of this Part may be suspended from the exercise of the rights and privileges of membership by the Assembly upon the recommendation of the Council pursuant to article 185. In addition to this, the Council may issue emergency orders, which may include orders for the suspension or adjustment of operations, to pre-vent serious harm to the marine environment arising out of activities in the Area under article 162 para. 2 (w).

The jurisdiction of the ISA is exercised over all natural and legal per-sons engaging in activities in the Area, regardless of their nationalities. In this sense, the ISA’s jurisdiction is of a general nature. Activities in the Area are to be carried out by the Enterprise, an operational organ of the ISA, and in association with the ISA by other commercial entities in accordance with article 153 para. 2. In this regard, article 4 para. 6 of Annex III requires that every entity other than the Enterprise must un-dertake,

“(a) to accept as enforceable and comply with the applicable obliga-tions created by the provisions of Part XI, the rules, regulations and procedures of the Authority, the decisions of the organs of the Au-thority and terms of his contracts with the Authority; (b) to accept control by the Authority of activities in the Area, as authorized by this Convention; (c) to provide the Authority with a written assurance that his obliga-tions under the contract will be fulfilled in good faith; (d) to comply with the provision on the transfer of technology set forth in article 5 of this Annex.”46 It is of particular interest to note that the jurisdiction of the ISA is

directly exercisable over natural persons. In this sense, it may be said that the ISA has a supranational jurisdiction.47 46 The obligation concerning the transfer of technology was deleted by the

1994 Implementation Agreement. 47 J. Combacau, Le droit international de la mer, Que sais-je?, 1985, 91. See

also R.J. Dupuy, Le droit international, Que sais-je? , 2001, 30.


Finally, the jurisdiction of the ISA is exclusive in the sense that no state, enterprise or natural and juridical person can be engaged in activi-ties in the Area without approval of the ISA.48 As resources in the Area are to be exploited for the benefit of mankind as a whole, it seems logi-cal that the ISA representing mankind has the exclusive jurisdiction to organise activities in the Area.

In summary, the jurisdiction of the ISA is limited to matters pro-vided by the UNCLOS. Concerning those matters, however, the ISA exercises both legislative and enforcement jurisdiction over all people and objects in the Area in an exclusive manner. It may be concluded that the ISA has the primary responsibility to safeguard the benefit of mankind as a whole in the Area. The legal regime governing the Area seems to provide an interesting example of a mechanism for the protec-tion of community interests through an international organisation.

b. New Regime under the 1994 Implementation Agreement

On the other hand, some industrialised states strongly objected to the regime governing the Area. It is common knowledge that the United States voted against the UNCLOS and did not sign it. Many other in-dustrialised states abstained and did not ratify the Convention. As a consequence, it became apparent that apart from Iceland, all State Par-ties to the Convention were developing states. Further to this, states such as the United States (1980), the United Kingdom (1981), Germany (1980, amended 1982), France (1981), Japan (1982), the former USSR (1982) and Italy (1985), enacted unilateral domestic legislation concern-ing deep seabed mining.49 In 1984, eight states (the United States, the United Kingdom, Belgium, France, Germany, Italy, Japan, and the Netherlands) concluded the Provisional Understanding Regarding Deep Seabed Matters in order to avoid overlapping in deep seabed op-erations.50 This situation severely damaged the unity and universality of the deep seabed regime established in Part XI and the UNCLOS as a whole.

48 F.H. Paolillo, “Institutional Arrangements”, in: R.J. Dupuy/ D. Vignes, A

Handbook on the New Law of the Sea, Vol. 1, 1991, 689 et seq. (706). 49 E.D. Brown, “Neither Necessary nor Prudent at this Stage: The Regime of

Seabed Mining and Its Impact on the Universality of the UN Convention on the Law of the Sea”, Marine Policy 17 (1993), 81 et seq. (93).

50 For the text, see ILM 23 (1984), 1354 et seq.


In response, in July 1990, the UN Secretary-General initiated in-formal consultations in order to meet the specific objections of the de-veloped states.51 These consultations resulted in the adoption of the Implementation Agreement on 28 July 1994.52 According to article 2 para. 1 the provisions of the Implementation Agreement and Part XI of the UNCLOS are to be interpreted and applied together as a single in-strument and in the event of any inconsistency between the Agreement and Part XI, the provisions of the Agreement shall prevail.

Despite its title, the Agreement seeks to modify the original regime of Part XI of the UNCLOS. By adopting the market-oriented and evo-lutionary approaches, the Implementation Agreement “modified” the original regime of Part XI of the UNCLOS with regard to, inter alia, the following matters: (i) Costs to States Parties and Institutional Ar-rangements; (ii) Approval procedure for an explanation plan; (iii) the Enterprise; (iv) Decision-making; (v) Review Conference; (vi) Transfer of Technology; (vii) Production Policy; (viii) Financial Terms of Con-tracts; (ix) the Establishment of the Finance Committee; and (x) Eco-nomic Assistance. The detailed examination of each and every change of the deep seabed regime is beyond the scope of this contribution.53 In-stead, a question to be examined is whether or not the essence of the principle of the common heritage of mankind was lost due to the 1994 Implementation Agreement.

51 The process of the consultations was succinctly summarised in the follow-

ing document. UN General Assembly, Consultations of the Secretary-General on Outstanding Issues Relating to the Deep Seabed Mining Provi-sions of the United Nations Convention on the Law of the Sea, Report of the Secretary-General, Doc. A/48/950, 9 June 1994.

52 Agreement Relating to the Implementation of Part XI of the United Na-tions Convention on the Law of the Sea of 10 December 1982, entered into force on 28 July 1996. For the text of the Agreement, see UNTS Vol. 1836 No. I-31364; ILM 33 (1994), 1309 et seq. As at 21 July 2011, 141 states have ratified the Agreement.

53 There are many studies concerning the 1994 Implementation Agreement, including, E.D. Brown, “The 1994 Agreement on the Implementation of Part XI of the UN Convention on the Law of the Sea: Breakthrough to Universality?”, Marine Policy 19 (1995), 5 et seq.; L.D.M. Nelson, “The New Deep Sea-Bed Mining Regime”, International Journal of Marine & Coastal Law 10 (1995), 189 et seq.; B.H. Oxman, “The 1994 Agreement and the Convention”, AJIL 88 (1994), 687 et seq.; L.B. Sohn, “International Law Implications of the 1994 Agreement”, AJIL 88 (1994), 696 et seq.


The answer would be no for the following reasons. First, it must be highlighted that the essential elements governing the Area, namely, the principle of the common heritage of mankind, the non-appropriation of the Area and its natural resources, the use exclusively for peaceful pur-poses, and the benefit of mankind as a whole, remain the same.54 In this regard, article 311 para. 6 of the UNCLOS makes clear that,

“States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof.” The Preamble of the Implementation Agreement also reaffirmed

that “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction […], as well as the resources of the Area, are the common heritage of mankind.” Moreover, Section 4 of the Agreement affirms that the principles, regime and other terms referred to in article 155 para. 2 of the UNCLOS shall be maintained. This provision con-firms the basic elements of the principle of the common heritage of mankind.

Second, the exploration and exploitation activities in the Area are to be carried out by the Enterprise, and, in association with the ISA, by States Parties or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals.55 It is true that the establishment of the Enter-prise was postponed and financial obligations of State Parties were not applied by the Implementation Agreement.56 Even so, the mechanism for the direct exploration and exploitation of natural resources in the Area through the Enterprise is maintained because this is at the heart of the deep seabed regime. Thus it could well be said that the “parallel sys-tem” remains unchanged.

Furthermore, in its first Advisory Opinion of 1 February 2011, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) pronounced that the role of the sponsoring state is to realise the common interest of all states in the proper implementation of the principle of the common heritage of mankind by assisting the ISA and by acting on its own with a view to ensuring that entities under its

54 Nelson, see note 53, 203. 55 Article 153 (2) of the UNCLOS. 56 Section 2.


jurisdiction conform to the rules on deep seabed mining.57 Thus it may be concluded that the essential elements of the mechanism for the pro-tection of community interests in the Area remain intact.

3. Conclusions

The results of the above considerations can be summarised in three points:

(i) The legal regime governing the Area relies on the principle of the common heritage of mankind. While traditional principles of the law of the sea, namely, the principle of sovereignty and that of freedom aim to safeguard the interests of individual states, the principle of common heritage of mankind seeks to safeguard the common interest of man-kind as a whole. It is noteworthy that the principle of the common heri-tage of mankind came into existence in a situation where the traditional principles could not provide for an equitable framework for ensuring the common interest of mankind in the Area.

(ii) The ISA, acting on behalf of mankind as a whole, has the respon-sibility to protect the common interest in the Area. So far as matters provided by the UNCLOS are concerned, the ISA exercises both legis-lative and enforcement jurisdiction over all people and objects in the Area in an exclusive manner. Thus the common interest of mankind in the Area is to be protected by the ISA in a centralised manner.

(iii) The original regime established in the UNCLOS was signifi-cantly modified by the 1994 Implementation Agreement. Nonetheless, it must be stressed that the principal elements of the common heritage of mankind principle remain intact. Hence it is arguable that the com-mon heritage of mankind continues to be the cardinal principle govern-ing the activities in the Area.58

57 See note 44, 65, para. 226; 25, para. 76. While the Seabed Disputes Chamber

of the ITLOS refers to “common interest of all States”, it will be preferable to use the term “the common interest of mankind as a whole.”

58 Simma, see note 1, 241.


III. Protection of Community Interests in Marine Environmental Protection

1. Port State Jurisdiction: An Individual Application of the Law of Dédoublement Fonctionnel

a. Port State Jurisdiction and Scelle’s Theory of the Law of Dédoublement Fonctionnel

Another model of the protection of community interest can be seen in the context of marine environmental protection. It is beyond serious argument that the flag state has the primary responsibility with regard to the regulation of vessel-source marine pollution. Nonetheless, ex-perience demonstrates that flag state responsibility alone is inadequate to ensure compliance with rules on this subject partly because of flags of convenience. With a view to complementing the flag state’s responsi-bility, the UNCLOS introduced a new mechanism of port state juris-diction under article 218.59 Article 218 para. 1 stipulates that,

“When a vessel is voluntarily within a port or at an off-shore termi-nal of a State, that State may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any dis-charge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable in-ternational rules and standards established through the competent international organization or general diplomatic conference.”60 It is of particular interest to note that article 218 para. 1 is designed

to allow a port state to exercise enforcement jurisdiction against foreign

59 For an analysis in some detail of port state jurisdiction, see in particular, T.

Keselj, “Port State Jurisdiction in Respect of Pollution from Ships: The 1982 United Nations Convention on the Law of the Sea and the Memo-randa of Understanding”, Ocean Dev. Int. Law 30 (1999), 127 et seq.; T.L. McDorman, “Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention”, Journal of Maritime Law and Com-merce 28 (1997), 305 et seq.; E.J. Molenaar, “Port State Jurisdiction”, in: Wolfrum, see note 5; id., “Port State Jurisdiction: Toward Comprehensive, Mandatory and Global Coverage”, Ocean Dev. Int. Law 38 (2007), 225 et seq.; H.S. Bang, “Port State Jurisdiction and Article 218 of the UN Con-vention on the Law of the Sea”, Journal of Maritime Law and Commerce 40 (2009), 291 et seq.

60 Emphasis added.


ships for vessel-source pollution that took place outside marine spaces under national jurisdiction of that state. As a consequence, the port state is entitled to take enforcement action against the vessel even where a violation was committed on the high seas or marine spaces under other states’ jurisdiction, regardless of direct damage to the port state. This is an innovation because a port state has no jurisdiction over activi-ties of a foreign vessel on the high seas under customary law. The legal ground for port state jurisdiction rests on the specific treaty provision, namely, article 218.61

It is conceivable that “applicable international rules and standards” referred to in this provision are considered to be established by MAR-POL 73/78.62 In relation to this, some argue that to the extent to which these rules are “applicable” or “generally accepted,” the power to in-voke rules and standards does not depend upon whether the flag state of that particular ship is a party to the relevant conventions due to their widespread adoption.63 The existence of “applicable international rules and standards” is an essential element with a view to ensuring legiti-macy of port state jurisdiction.

It may be said that under article 218, the port state would assume the role of an organ of the international community in marine environ-mental protection.64 In this sense, the port state jurisdiction seems to

61 McDorman, see note 59, 318. 62 Ibid., 316; International Maritime Organization, Circular letter No. 2456,

Implication of UNCLOS for the Organisation, 17 February 2003, Annex II, 17. MARPOL 73/78 means International Convention for the Preven-tion of Pollution from Ships, modified by the 1978 Protocol. For the text of the Convention see, IMO, MARPOL 73/78: Consolidated Edition 2006 (2011 edition is forthcoming).

63 R. Wolfrum, “IMO Interface with the Law of the Sea Convention”, in: M.H. Nordquist/ J.N. Moore, Current Maritime Issues and the Interna-tional Maritime Organisation, 1999, 231; D. Rothwell/ T. Stephens, The International Law of the Sea, 2010, 344; P. Birnie/ A. Boyle/ C. Redgwell, International Law and the Environment, 3rd edition, 2008, 389. In fact, as at 31 May 2011, 150 states representing 99.14 per cent of the world’s ship-ping tonnage were parties to Annexes I and II of MARPOL 73/78. IMO, Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or Its Secretary-General Performs Depositary or Other Functions, 101.

64 Keselj, see note 59, 136; C.J. Tams, “Individual States as Guardians of Community Interests”, in: Fastenrath et al., see note 2, 379 et seq. (397).


provide an interesting example of Scelle’s theory of “la loi du dédou-blement fonctionnel.”65

In order to explore this point, some mention should be made of this unique theory.66 According to Scelle, realisation of law in every society must rest on three functions, namely, legislative, judicial and enforce-ment functions.67 However, the mode to perform these functions and its efficacy vary according to societies.68 There is no centralised organ to perform the three social functions in the international society. Thus, in the inter-state order (l’ordre interétatique),69 these functions are to be performed by state organs, namely, les agents et gouvernants étatiques. In the view of Scelle, the organs perform a dual role. Where state organs

65 D. Vignes, “Le navire et les utilisations pacifiques de la mer: La juridictions

de l’Etat du port et le navire en droit international”, in: Société française pour le droit international, Colloque de Toulon: Le Navire en Droit Inter-national, 1992, 127 et seq. (150); C. Mizukami, Law of the Sea, (in Japa-nese), 2005, 252. In this study, the term “the law of dédoublement fonction-nel” will be used.

66 Concerning the theory of the law of dédoublement fonctionnel, see G. Scelle, “Le phénomène juridique du dédoublement fonctionnel”, in: W. Schätzel (ed.), Rechtsfragen der internationalen Organisation, Festschrift für Hans Wehberg zu seinem Geburtstag, 1956, 324 et seq.; A. Cassese, “Remarks on Scelle’s Theory of ‘Role Splitting’ (dédoublement fonctionnel) in International Law”, EJIL 1 (1990), 210 et seq.; M. Nishiumi, “Dédou-blement fonctionnel de l’Etat et droit international contemporain: d’après la pensée de Georges Scelle” (in Japanese), Yearbook of World Law 20 (2001), 77 et seq.

67 G. Scelle, Manuel de droit international public, 1948 (hereafter Manuel), 15; See also G. Scelle, Précis de droit des gens: principes et systématique, Pre-mière Partie, 1932 (hereafter Précis), 18.

68 Ibid., 20. 69 According to Scelle, the international society can be divided into two cate-

gories, namely, inter-state society (société interétatique) and the supra-state society (société super étatique). In the supra-state society, one can detect so-cial organs proper to the society, which distinct from national organs. In other words, social functions in the supra-state society are performed by supra-state organs (les agents et gouvernants super étatiques). The supra-state society is characterised by hierarchy. Thus, in this type of society, one can find federalism in a broad sense. On the other hand, social functions of the inter-state society are performed by the existing state organs (les agents et gouvernants étatiques). Here the law of dédoublement fonctionnel comes into play. G. Scelle, “Règles générales du droit de la paix”, RdC 46 (1933), 327 et seq. (356).


perform their functions in the municipal legal order, they are consid-ered as national organs. Where state organs perform their functions in the international legal order, they are regarded as international organs. More specifically when the head of state or other legislators of a state are involved with the formation of a law-making treaty in a conference, they may be considered as acting as international legislators (législateurs internationaux). Likewise, where a domestic court deals with a litiga-tion concerning private international law, it acts as an international ju-dicial body. Where one or more governments are involved with an en-forcement action, they act as international enforcement agencies (agents exécutifs internationaux).70 The dual role is called the law of dédouble-ment fonctionnel.71 In essence, the law of dédoublement fonctionnel re-lates to the hierarchy of the legal order. While the phenomenon of dé-doublement fonctionnel can be seen in municipal law,72 its role is par-ticularly important in international law.

It appears that the law of dédoublement fonctionnel has a valuable role in the law of the sea because there is no centralised organ to per-form legislative, executive and judicial functions regulating human ac-tivities in the oceans. As said above, where the head or other legislators of a state participate in a conference to formulate “international rules, standards and recommended practices and procedures”,73 for instance, it is arguable that they perform legislative functions as international law-making bodies. As another example, the coastal state is compelled to give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea pursuant to article 24 para. 2 of

70 Ibid., 358-359. 71 In his article published in 1956, Scelle defines the law of dédoublement

fonctionnel as: “les agents dotés d’une compétence institutionnelle ou in-vestis par un ordre juridique utilisent leur capacité ‘fonctionnelle’ telle qu’elle est organisée dans l’ordre juridique qui les a institués, mais pour as-surer l’efficacité des normes d’un autre ordre juridique privé des organes nécessaires à cette réalisation, ou n’en possédent [sic] que d’insuffisants.” Scelle, see note 66, 331.

72 Ibid., 331-332. 73 “International rules, standards and recommended practices and proce-

dures” contribute to enhance uniformity of national and international regulations with regard to the marine environmental protection. In fact, such rules and standards are often referred to in the UNCLOS. See for in-stance arts 208 (3), 210 (6), and 211 (2).


the UNCLOS.74 This provision seems to indicate that the coastal state would assume the role of an advocate of the international community in the protection of safety of navigation through its territorial sea by an-nouncing any risks.

On the other hand, it must be stressed that Scelle did not regard the law of dédoublement fonctionnel as an ideal means to perform essential functions of law. In fact, Scelle recognised that the law of dédoublement fonctionnel is a dangerous substitute for the institutional organisation which is absent in the international legal order. He thus argued that the traditional technique must be progressively replaced by a hierarchy of the institutions corresponding to the law of hierarchy of legal orders, namely, federalism.75 In reality, the law of dédoublement fonctionnel seems to encounter considerable difficulties as to its practical imple-mentation.

Three obstacles must be highlighted in particular. First the lack of incentive of states. The behaviour of states according to the law of dédoublement fonctionnel relies essentially on their goodwill. Yet it ap-pears questionable whether states always have an adequate incentive to conduct themselves as an organ of the international community to pro-tect community interests. Second the lack of co-ordination. It is debat-able whether the fulfilment of an executive function by individual states may be less effective due to anarchical application of relevant rules of international law. Third, in some cases, the concept of community in-terests may be used as an ideology to justify a policy of a particular state. Thus there is a concern that the law of dédoublement fonctionnel may be abused in order to promote particular interests of a state or states in the pretext of the protection of community interests. As will be seen, these difficulties arise in the specific context of the law of the sea.

b. Limits of Port State Jurisdiction

Despite its innovative nature, port state jurisdiction is subject to some limitations. In particular, four limitations must be highlighted.

First, article 218 para. 1 holds that the power to exercise port state jurisdiction is permissive, not an obligation. In reality, it appears ques-tionable whether or not the port state has good incentives to exercise its

74 This obligation seems to follow from the dictum of the Corfu Channel

judgment, ICJ Reports 1949, 4 et seq. (22 et seq.). 75 Scelle, Manuel, see note 67, 22.


jurisdiction effectively.76 The optional nature of port state jurisdiction may entail the risk of creating so-called “ports of convenience.”77 Con-sidering that the ship owner is entitled to compensation by virtue of ar-ticle 232 for losses suffered as a result of excessive port state action,78 the port state may be cautious about exercising its jurisdiction. Second, port state jurisdiction encounters considerable difficulties with respect to its practical implementation. It would be highly difficult if not im-possible to detect evidence of a specific discharge violation in a particu-lar sea area.79 There may also be logistical problems for ports which re-ceive many ship visits annually.80 Third, under the UNCLOS, there is no mechanism to co-ordinate common standards and procedures in the implementation of port state jurisdiction. As a consequence, there is a concern that foreign vessels may be subject to different legal procedures in different ports. This fact may impair the efficacy of the port state ju-risdiction as well as the free and unimpeded sea communication. Fourth, it must be noted that under the UNCLOS, port state enforce-ment is subject to substantive and procedural restrictions. Concerning substantive restrictions, port state jurisdiction deals only with the viola-tion of international rules with regard to vessel-source pollution. Thus, the breach of international rules relating to construction, design, equip-ment, crewing and other vessel standards falls outside the scope of arti-cle 218.81 Further to this, the port state can enforce only “international 76 In fact, in the legislative process of port state jurisdiction, Japan expressed

the view that “there was no great incentive for port states to initiate pro-ceedings with regard to pollution violations which took place far from their own territories.” A/CONF.62/C.3/SR.10, Official Records of the Third United Nations Conference on the Law of the Sea, Vol. II, 357, para. 44 (Mr. Oda). See also T.L. McDorman, “Regional Port State Control Agree-ments: Some Issues of International Law”, Ocean & Coastal L. J. 5 (2000) 207 et seq. (217); A.K.J. Tan, Vessel-Source Marine Pollution, 2006, 220. According to Ho-Sam Bang, there have been no court cases where port states have prosecuted foreign vessels for unlawful discharges in accordance with article 218 of the UNCLOS. Bang, see note 59, 312.

77 Molenaar, see note 59 (2011), 1. 78 Tan, see note 76, 220. 79 While an eyewitness may be the only form of evidence to prove the exis-

tence of a discharge violation, it is difficult to find the eyewitness. Keselj, see note 59, 138.

80 Tan, see note 76, 220. 81 McDorman, see note 59, 315. However, it is arguable that article 219 of the

UNCLOS may expand the scope of the port state jurisdiction. Kesel, see note 59, 138-139.


rules and standards established through the competent international or-ganization or general diplomatic conference.” Accordingly, it is argu-able that the port state is not free to create and enforce its own dis-charge rules and standards.

With regard to procedural restrictions, article 218 para. 2 prohibits the port state to institute proceedings where a discharge violation oc-curred in the internal waters, territorial sea or EEZ of another state unless that state, flag state or a state damaged or threatened by the dis-charge violation so requests, or where the violation has caused or is likely to cause pollution in the internal waters, territorial sea or EEZ of the port state. Port state jurisdiction is further qualified by article 226. Article 226 para. 1 (a) imposes upon states, including the port state, an obligation not to delay a foreign vessel longer than is essential for pur-poses of the investigations. Under the same provision, any physical in-spection of a foreign vessel shall be limited to documentary examina-tion. Further physical inspection of the vessel may be undertaken only when there are clear grounds for believing that the condition of the ves-sel or its equipment does not correspondent with the documents; the documents are insufficient to confirm or verify a suspected violation; or the vessel is not carrying valid certificates and records.

If the investigation indicates a violation of applicable laws or inter-national rules and standards for the protection of the marine environ-ment, release is to be made promptly subject to reasonable procedures such as bonding or other appropriate financial security pursuant to arti-cle 226 para. 1 (b). Under article 218 para. 4, the records of the investi-gation carried out by a port state are to be transmitted upon request to the flag state or to the coastal state. Any proceedings instituted by the port state on the basis of such an investigation may, subject to Section 7, be suspended at the request of the coastal state when the violation has occurred within its internal waters, territorial sea or EEZ. Further to this, the flag state may force a suspension of the proceedings being un-dertaken by the port state for an alleged discharge violation where the flag state takes proceedings to impose penalties in respect of corre-sponding charges within six months pursuant to article 228 para. 1.


2. Port State Control: An Institutional Application of the Law of Dédoublement Fonctionnel

a. The Memoranda of Understanding on Port State Control

As noted, one of the essential limitations of the individual application of the law of dédoublement fonctionnel involves the lack of co-ordination. The sporadic application of the law will seriously impair the efficacy of the protection of community interests. In response, there will be a need to institutionalise the application of the law. In this regard, port state control seems to provide an interesting model.82

Port state control is a mechanism for verifying whether a foreign vessel’s documentation and the vessel itself comply with international rules and standards with regard to the safety of ships, living and work-ing conditions on board ships and protection of the marine environ-ment set out by relevant treaties. Port state control seeks to enhance safety at sea and regulate vessel-source pollution by applying the same standards in a similar manner to visiting vessels in ports.83 In so doing, it purports to ensure effective compliance with relevant treaties.

Unlike port state jurisdiction, port state control does not prosecute the vessel for an alleged breach of relevant international rules and stan-dards. Port state control is limited to taking an administrative measure of verification, including the detention of a vessel. In this respect, port state control must be distinct from port state jurisdiction.84 On the other hand, like port state jurisdiction, port state control purports to carry out the inspections of foreign vessels, regardless of direct damage. Thus port state control may also be considered as a mechanism for pro-tecting community interests relating to the marine environmental pro-tection.

Actually many global treaties concerning pollution regulation and marine safety provide port state control. Examples include: the 1974 In-ternational Convention for the Safety of Life at Sea (SOLAS),85 MAR- 82 Generally on this issue, see in particular, H.S. Bang, “Is Port State Control

an Effective Means to Combat Vessel-Source Pollution? An Empirical Sur-vey of the Practical Exercise by Port States of Their Powers of Control”, International Journal of Maritime & Coastal Law 23 (2008), 715 et seq.

83 McDorman, see note 76, 209. 84 McDorman, see note 59, 320; Bang, see note 82, 717. 85 Annex Chapter 1, Regulation 19. Entered into force on 25 May 1980. For

the text of the Convention, UNTS Vol. 1184 No. I-18961.


POL,86 the 1976 ILO Convention No. 147 concerning Minimum Stan-dards in Merchant Ships,87 the 1966 International Convention on Load Lines,88 the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers,89 and the 2006 Maritime Labour Convention.90

In order to enhance the efficiency of port state control set out by these treaties, it is necessary to co-ordinate actions between port states. Indeed, concerted action is useful to eliminate so-called “port shop-ping” and to reduce the burden of repetitive inspections of foreign ships.91 Thus port states formulated regional institutions effectuating port state control through Memoranda of Understanding. To date, nine Memoranda have been established: 1982 Paris Memorandum of Under-standing on Port State Control (hereafter the Paris MOU);92 1992 Viña del Mar (or Latin-American Agreement); 1993 Tokyo MOU on Port State Control (the Asia-Pacific region); 1996 Caribbean MOU; 1997 Mediterranean MOU; 1998 Indian Ocean MOU; 1999 Abuja (the West and Central African Region) MOU; 2000 Black Sea MOU; and 2004 Riyadh (the Arab States of the Gulf) MOU.93 In addition, EC Council Directive 95/21/EC on Port State Control was adopted on 19 June 1995.94

86 Regulation 11 of Annex I, Regulation 16 (9) of Annex II, Regulation 8 of

Annex III, Regulation 8 of Annex V, and Regulation 10 of Annex VI. 87 Article 4. Entered into force on 28 November 1981. The text of the Con-

vention is available at <http://www.ilo.org>. 88 Article 21. Entered into force on 21 July 1968. For the text of the Conven-

tion see UNTS Vol. 640 No. I-9156. 89 Article X and Regulation I/4. Entered into force on 28 April 1984. For the

text of the Convention, see UNTS Vol. 1361 No. I-23001. 90 Regulation 5.2. Not entered into force. The text of the Convention is avail-

able at <http://www.ilo.org>. 91 Bang, see note 82, 726. 92 The Paris Memorandum of Understanding includes 27 states. The text as

well as relevant information are available at <http://parismou.org>. 93 Bang, see note 82, 718. 94 Council Directive 95/21/EC of 19 June 1995 concerning the Enforcement,

in respect of Shipping Using Community Ports and Sailing in the Waters under the Jurisdiction of the Member States, of International Standards for Ship Safety, Pollution Prevention and Shipboard Living and Working Con-ditions (Port State Control). For an analysis of this directive, along with the text, see E.J. Molenaar, “The EC Directive on Port State Control in Con-text: the European Union”, International Journal of Maritime & Coastal


One might take the Paris Memorandum of Understanding as an ex-ample because this is the first regional arrangement for port state con-trol and was followed by other regional arrangements in this field.95 The origin of the Paris Memorandum of Understanding traced back to the Hague Memorandum which was adopted between members of maritime authorities in Western Europe in March 1978. After the Amoco Cadiz incident, in January 1982, a new Memorandum of Under-standing on Port State Control was adopted in Paris in January 1982 and entered into force on 1 July 1982. This instrument has been amended several times in order to meet new safety and marine envi-ronment requirements. On 1 January 2011, the New Inspection Regime replaced the existing Port State Control regime.96

In its Preamble, the Paris Memorandum of Understanding recog-nised that effective action by port states is required to prevent the op-eration of substandard ships, while the flag state has the principal re-sponsibility for the effective application of standards laid down in in-ternational instruments. The Preamble also highlighted the need to in-crease maritime safety, the protection of the marine environment and the importance of improving living and working conditions on board of ships.

Under Section 1.2, the Maritime Authorities of the Member States, referred to as “the Authorities,” will maintain an effective system of port state control with a view to ensuring that foreign merchant ships calling at a port of its state, or anchored off such a port, comply with the standards laid down in the relevant instruments as defined in Sec-tion 2.97 Each Authority will apply those relevant instruments which

Law 11 (1996), 241 et seq. This Directive was amended by Directive 2001/106/EC of 19 December 2001.

95 Whatever the need for caution, normally a Memorandum of Understanding is considered as an instrument which is not legally binding. A. Aust, Mod-ern Treaty Law and Practice, 2007, 32. The Paris Memorandum of Under-standing is considered as a non-binding instrument. It used a less manda-tory term, namely, “will”. Molenaar, see note 94, 256.

96 Paris Memorandum of Understanding, The New Inspection Regime (NIR) of the Paris Memorandum of Understanding, available at <http://parismou.org>.

97 For the purpose of the Paris Memorandum, relevant instruments are the following: the International Convention on Load Lines, 1966 (LOAD LINES 66); the Protocol of 1988 relating to the International Convention on Load Lines, 1966 (LL PROT 88); the International Convention for the Safety of Life at Sea, 1974 (SOLAS); the Protocol of 1978 relating to the In-


are in force and to which its state is a party.98 Hence States Parties to the Paris Memorandum of Understanding commit themselves to effectuate the conventions which are legally binding for them.99 Sufficient inspec-tions are a key component of port state control.100 Thus each Authority will carry out an inspection on every foreign merchant ship of Priority I calling at one of its ports or anchorages, subject to the flexibility and regional commitment as described in Annex 11.101 In 2009, a total num-ber of 24,186 inspections were performed, and the overall inspection ef-fort, which is the ratio of the number of inspections to the number of individual ship calls in members’ ports, was 29.93 per cent. Thus, apart from Finland, all Member States reached the target of the 25 per cent in-spection effort commitment of the Memorandum.102

The Authorities will, upon the request of another Authority, en-deavour to secure evidence relating to suspected violations of the re-

ternational Convention for the Safety of Life at Sea, 1974 (SOLAS PROT 78); the Protocol of 1988 relating to the International Convention for the Safety of Life at Sea, 1974 (SOLAS PROT 88); the International Conven-tion for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, and as further amended by the Protocol of 1997 (MARPOL); the International Convention on Standards of Train-ing, Certification and Watchkeeping for Seafarers, 1978 (STCW 78); the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREG 72); the International Convention on Tonnage Meas-urement of Ships, 1969 (TONNAGE 69); the Merchant Shipping (Mini-mum Standards) Convention, 1976 (ILO Convention No. 147) (ILO 147); the Protocol of 1996 to the Merchant Shipping (Minimum Standards) Con-vention, 1976 (ILO Convention No. 147) (ILO P147); the International Convention on Civil Liability for Oil Pollution Damage, 1969 (CLC 1969); Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969 (CLC PROT 1992); the International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001 (AFS 2001); the International Convention on Civil Liability for Bun-ker Oil Pollution Damage, 2001.

98 Section 2.3. 99 Keselj, see note 59, 142. 100 McDorman, see note 76, 215. 101 Section 1.3. The Inspection and Selection Scheme is divided into two pri-

orities, namely Priority I and Priority II. Ships under Priority I must be in-spected because either the time window has closed or there is an overriding fact. See Annex 8 to the Paris Memorandum of Understanding, Inspection and Selection Scheme.

102 Paris Memorandum of Understanding, Annual Report 2009, 18.


quirements on operational matters of Rule 10 of the 1972 Convention on the International Regulations for Preventing Collisions at Sea (COLREG 72) and MARPOL. In the case of suspected violations in-volving the discharge of harmful substances, an Authority will, upon the request of another Authority, visit in the port the ship suspected of such a violation in order to obtain information and where appropriate to take a sample of any alleged pollutant.103 Furthermore, it will en-deavour to secure the rectification of all deficiencies detected. For this purpose, appropriate action will be taken, which may include detention or a formal prohibition of a ship to continue an operation due to estab-lished deficiencies which would render the continued operation haz-ardous.104 In the case of a detention, the Authority concerned will im-mediately notify the flag Administration in writing and include the re-port of inspection.105 At the same time, the Authorities will make all possible efforts to avoid unduly detaining or delaying a ship.106 In addi-tion, each Authority will report on its inspections under the Memoran-dum and on its results in accordance with Annex 3.107 Moreover, fol-lowing detentions, each Authority may refuse access of a foreign mer-chant ship to its ports and anchorages according to Section 4.

As noted, the harmonisation of procedures between Member States is one of the key elements of port state control. Thus a Committee, which is composed of a representative of each of the Authorities and of the Commission of the European Communities, is to promote the har-monisation of procedures and practices relating to the inspection, recti-fication, detention, banning and the application of Section 2.4.108

b. Commentary

Port state control is a means to effectuate treaties concerning safety at sea and the regulation of vessel-source pollution which are legally bind-

103 Section 6. 104 Section 3.4. 105 Section 3.7. The number of detentions in 2008 and 2009 was 1,220 and

1,059, respectively. The average detention rate in 2009 was 4.38 per cent and was lower than the historically low figure of 2005, which was 4.67 per cent. There has been a trend of decrease of the number of detentions in the last decade. Paris Memorandum of Understanding, Annual Report 2009, 18.

106 Section 3.13. 107 Section 5.3. 108 Section 7.3.2.


ing for port states. By applying a uniform set of standards and proce-dures, port state control enables Member States to the Memoranda of Understanding to set in motion concerted inspections to verify compli-ance with relevant treaties on these subjects. In so doing, port state con-trol would assume the role of an organ of the international community to protect community interests in marine environmental protection and safety at sea.109 In this sense, port state control can be regarded as an in-stitutional application of the law of dédoublement fonctionnel.

On the other hand, it must be noted that considerable differences in practice exist between States Parties to the Memoranda of Understand-ing. Take the Indian Ocean Memorandum as an example. In 2010, Mau-ritius carried out only 4 inspections, whilst Australia carried out 3127 inspections.110 In the case of the Abuja Memorandum, South Africa car-ried out 622 inspections and Congo carried out 378 inspections in 2008. On the other hand, in the same year, no inspection was carried out by Angola, Benin, Cameroon, Cape Verde, Côte d’Ivoire, Equatorial Guinea, Gabon, Guinea, Liberia, Mauritania, Namibia, Sierra Leone and Gambia.111 It seemed unclear whether the limited number of in-spections was due to the inefficiency of port authorities or because the number of visiting vessels was very limited. However, one may suspect that the former reason is more realistic. Such a difference in practice will create a port of convenience.112 There are also differences in the in-spection rate between the Memoranda of Understanding. In 2009, the inspection rate under the Tokyo Memorandum was approximately 61 per cent113 and that under the Black Sea Memorandum was 58.6 per cent.114 In the same year, as noted, the inspection rate under the Paris Memorandum was 29.93 per cent.

In addition, there are differences in the status of ratifications of the relevant instruments between Member States of the Memoranda of Un-derstanding. One might take the status of MARPOL as an example.115

109 Cf. Molenaar, see note 59 (2011), 1. 110 Indian Ocean Memorandum of Understanding on Port State Control, An-

nual Report 2010, 10. 111 Abuja Memorandum of Understanding, Annual Report 2008, 16. 112 Keselj also expressed the same concern. Keselj, see note 59, 148. 113 Annual Report on Port State Control in the Asia-Pacific Region 2009, 11. 114 Port State Control in the Black Sea Region, Annual Report 2009, 5. 115 As of 31 May 2011, 18 Authorities adhere to the Tokyo Memorandum of

Understanding. Relevant information is available at <http://www.tokyo-mou.org>. Section 2.4 of the Memorandum of Understanding states that


The Convention is a key instrument regulating vessel-source marine pollution. As of 31 March 2011, many of the Member States to the To-kyo Memorandum became a party to MARPOL, including all Annexes. Nonetheless, Fiji did not ratify the Convention. Indonesia, Thailand and Viet Nam accepted only the obligatory Annexes I and II. Conse-quently, the optional Annexes, namely, Annexes III, IV, V and VI are not applied by these states. New Zealand did not accept Annexes IV and VI. The Philippines, Papua New Guinea, and the Russian Federa-tion did not accept Annex VI. The differences in the ratifications of relevant instruments will impair the uniform application of relevant rules within ports under the Memoranda. Likewise, relevant instru-ments applied by port state Authorities vary. In this regard, there will be a need to enhance coordination between Memoranda of Understand-ing.

3. Conclusions

The above made considerations lead to the following conclusions: (i) Under article 218 of the UNCLOS, the port state may enforce

applicable international rules and standards against foreign vessels for vessel-source pollution that took place outside marine spaces under na-tional jurisdiction, regardless of direct damage. In this case, the port state would assume the role of an organ of the international community in order to protect community interests in the field of marine environ-mental protection. In this sense, the port state jurisdiction can be con-sidered as the individual application of the law of dédoublement fonc-tionnel.

(ii) On the other hand, it appears questionable whether the port state has a good incentive to exercise its jurisdiction to investigate ma-rine pollution which has caused no direct damage. The lack of co-ordination is another obstacle of port state jurisdiction.

(iii) Port state control purports to harmonise procedures to carry out inspections to verify compliance with relevant treaties with regard to the regulation of vessel-source marine pollution and safety at sea. By applying common standards to visiting vessels in ports, port state con-trol enables Member States to the Memoranda of Understanding to carry out the inspections in a uniform manner. Port state control seems

“Each Authority will apply those relevant instruments which are in force and binding upon it.” (emphasis added).


to provide an example of the institutional application of the law of dédoublement fonctionnel.

IV. Protection of Community Interests in the Conservation of Marine Living Resources

1. The Unilateral Approach and Its Limits

a. General Considerations

Marine living resources are of vital importance for mankind because these resources constitute an important source of protein in a situation of an explosion of the global population.116 As marine living resources are renewable, it is important to pursue proper conservation policies in order to prevent the exhaustion of those resources. Thus there appears to be a general sense that conservation of marine living resources in-volves a common interest of the international community.117 At the same time, marine living resources are important for trade and industry of many states.118 Accordingly, conservation policy of these resources directly affects the economic development of states. In short, conserva-tion of marine living resources deeply involves not only community in-terests but also national interests at the same time. Hence caution may be needed to prevent the pursuit of special interests of a state or a group of states under the guise of action in the protection of community inter-ests.

In general, two approaches to the conservation of marine living re-sources may be identified.119 The first is the individual approach taken by the coastal state. The individual approach applies to conservation of living resources in marine spaces under national jurisdiction. Consider-

116 According to FAO, in 2007, fish accounted for 15.7 per cent of the global

population’s intake of animal protein and 9.1 per cent of all protein con-sumed. FAO, The Status of World Fisheries and Aquaculture, 2010, 3.

117 C. Kojima, “Implementing Community Interests in the Law of the Sea: the Conservation and Management of Marine Living Resources”, The Chuo Law Review 116 (2009), 1 et seq.

118 In 2008, trade in fish and fishery products represented a share of about 10 per cent of the total agricultural exports and 1 per cent of world merchan-dise trade in value terms. FAO, see note 116, 9.

119 Cf. Kojima, see note 117, 12.


ing that approximately 90 per cent of all commercially exploitable fish stocks are caught within 200 miles of the coast, conservation of living resources in the EEZ is particularly important.120 The second is the in-stitutional approach which is applied through international institutions, in particular, regional fisheries organs. This approach may be relevant particularly to conservation of living resources on the high seas. A question to be examined in this part is whether or not these two ap-proaches can be seen as a legitimate and effective means to protect community interests in conservation of marine species.

b. Conservation of Living Resources in the EEZ

The coastal state has sovereign rights for the purpose of exploring, ex-ploiting and conserving the natural resources in the EEZ.121 The coastal state exercises both legislative and enforcement jurisdiction on this mat-ter. In this respect, article 73 para. 1 UNCLOS stipulates that,

“The coastal State may, in the exercise of its sovereign rights to ex-plore, exploit, conserve and manage the living resources in the exclu-sive economic zone, take such measures, including boarding, inspec-tion, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in confor-mity with this Convention.” While this provision provides enforcement jurisdiction of the coastal

state, the reference to “the laws and regulations adopted by it” suggests that that state also has legislative jurisdiction.

At the same time, article 61 para. 2 of the UNCLOS obliges the coastal state to ensure through proper conservation and management measures that the maintenance of the living resources in the EEZ is not endangered by overexploitation, taking into account the best scientific evidence available. Accordingly, the coastal state has the primary re-sponsibility to take proper conservation measures in its EEZ. These measures of the coastal state, if they are effectively implemented, will contribute to protect the community interests in the conservation of marine living resources. Nonetheless, it seems naïve to consider that the coastal state would assume the role of an advocate of the international

120 P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th

revised edition, 1997, 183; P.G.G. Davies/ C. Redgwell, “The International Legal Regulation of Straddling Fish Stocks”, BYIL 67 (1996), 200; Chur-chill/ Lowe, see note 39, 162.

121 Article 56 (1) (a).


community in the conservation of living resources in the EEZ accord-ing to the law of dédoublement fonctionnel.

In this regard, it must be pointed out that “conservation” is not a purely scientific or biological concept, but is qualified by economic, po-litical and social elements. In fact, article 2 of the 1958 Geneva Conven-tion on Fishing and Conservation of the Living Resources of the High Seas defines conservation as “the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to se-cure a maximum supply of food and other marine products.” Article 2 further provides that “Conservation programmes should be formulated with a view to securing in the first place a supply of food for human consumption.” It is conceivable that the “supply of food for human consumption” will be determined on the basis of economic and social needs.122 While the above provision relates to conservation of living re-sources on the high seas, the same will apply to conservation of these resources in the EEZ. It may be argued that conservation measures are essentially a matter of national policy of the coastal state.

Specifically, as explained elsewhere,123 the conservation of marine living resources in the EEZ relies on the key elements, namely, the con-cept of allowable catch and that of maximum sustainable yield. Con-cerning the concept of allowable catch, article 61 para. 1 provides that “The coastal state shall determine the allowable catch of the living re-sources in its exclusive economic zone.” Article 62 para. 2 imposes on the coastal state to determine its capacity to harvest the living resources of the EEZ; where the coastal state does not have the capacity to harvest the entire allowable catch, it shall give other states access to the surplus of the allowable catch.

Apart from the single qualification not to endanger living resources by overexploitation, however, the coastal state has a broad discretion in setting the allowable catch.124 Thus there is a risk that the coastal state emerges with a zero surplus and thereby evades its duty to allocate sur-pluses in its EEZ by manipulating the allowable catch.125 Likewise, a

122 Concerning the concept of conservation, see Y. Tanaka, A Dual Approach

to Ocean Governance: the Cases of the Zonal and Integrated Management in International Law of the Sea, 2008, 32-35.

123 Ibid., 52. 124 W.T. Burke, The New International Law of Fisheries: UNCLOS 1982 and

Beyond, 1994, 47-48. 125 Yet such manipulations would be contrary to the obligation of optimum

utilisation as well as the obligation not to abuse rights by virtue of article


concern is also voiced that the determination of maximum sustainable yield is rarely, if ever, correct and the administrative measures taken with a view to its adoption have been and generally still are inadequate and inappropriate.126 It must also be remembered that under article 297 para. 3 (a), any disputes relating to a state’s sovereign rights with respect to the living resources in the EEZ or their exercise are exempted from the compulsory settlement procedure embodied in Part XV of the UNCLOS. This means that there is no review process by a third party capable of examining the validity of the conservation measures of the coastal state in its EEZ.127 Overall it seems evident that the conservation measures of the coastal state are essentially characterised by its own economic and social interests in the EEZ.

2. The Institutional Approach and Its Limits

a. At-Sea Inspection of Non-Contracting Party Vessels on the High Seas

The high seas are open to all states, whether coastal or land-locked.128 Thus no coastal state can unilaterally extend its jurisdiction with regard to the conservation of living resources on the high seas. As the high seas are governed by the principle of freedom, all states enjoy the freedom of fishing. It is beyond serious argument that the flag state has the pri-mary responsibility to ensure compliance with rules relating to the con-servation of marine species on the high seas by vessels flying its flag.129 However, there are growing concerns that the effective implementation of the flag state’s jurisdiction over fishing vessels is seriously under-

300 of the UNCLOS. L. Caflisch, “Fisheries in the Exclusive Economic Zone: An Overview”, in: U. Leanza (ed.), The International Legal Regime of the Mediterranean Sea, 1987, 149 et seq. (161).

126 G.L. Kesteven, “MSY Revisited: A Realistic Approach to Fisheries Man-agement and Administration”, Marine Policy 21 (1997), 73 et seq.

127 R. Barnes, “The Convention on the Law of the Sea: An Effective Frame-work for Domestic Fisheries Conservation?”, in: D. Freestone/ R. Barnes/ D. Ong (eds), The Law of the Sea: Progress and Prospects, 2006, 233 et seq. (246).

128 Article 87 (1) of the UNCLOS. 129 While the definition of the concept of compliance in international law var-

ies amongst writers, compliance may be defined broadly as the behaviour of a state which conforms to its international obligations.


mined by the practice of flags of convenience, re-flagging and illegal, unreported and unregulated fishing (IUU fishing).130 It is becoming ap-parent that self-regulation on the basis of flag state jurisdiction alone is seen as not being adequate in the conservation of marine living re-sources. Thus growing attention is devoted to non-flag state measures through regional fisheries bodies.

As explained elsewhere,131 these measures may be divided into two categories: inspection at sea and inspection in port. Each category is further divided into two sub-categories: inspection of Contracting Party vessels and inspection of non-Contracting Party vessels.132 No se-rious question will arise with regard to at-sea or port inspections of Contracting Party vessels since the legitimacy of such inspections rely on the consent of the Contracting Party. On the other hand, the legiti-macy of at-sea and port inspections of non-Contracting Party vessels needs careful consideration.

At-sea inspection of vessels of non-Contracting Parties is carried out by some regional fisheries organs. Take the Northeast Atlantic Fisheries Commission (NEAFC) as an example. Under article 37 para. 1 of the 2010 NEAFC Scheme of Control and Enforcement (hereafter the 2010 NEAFC Scheme),133 Contracting Parties to NEAFC are obliged to transmit to the Secretary without delay any information re-garding non-Contracting Party vessels sighted or by other means iden-tified as engaging in fishing activities in the convention area. The Secre-tary is to transmit this information to all Contracting Parties within one business day. NEAFC inspectors are required to request permission to board and inspect non-Contracting Party vessels in accordance with ar-ticle 38. If the master of the vessel consents to be boarded, the inspec-tion shall be documented by completing an inspection report as set out 130 A definition of IUU fishing is provided in Section 3 of FAO, International

Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, 2001.

131 Tanaka, see note 122, 106. For a recent analysis in some detail of non-flag state measures, see Tanaka, see note 30.

132 For an analysis of non-flag state measures in the context of conservation of living resources on the high seas, see R.G. Rayfuse, Non-Flag State En-forcement in High Seas Fisheries, 2004; Tanaka, see note 122, 106-118. For a more recent analysis of these measures, see Tanaka, see note 30.

133 NEAFC, Scheme of Control and Enforcement, February 2010. Generally on NEAFC, see T. Bjørndal, “Overview, Roles and Performance of the North East Atlantic Fisheries Commission (NEAFC),” Marine Policy 33 (2009), 685 et seq.


in Annex XIII. If the master does not consent for his vessel to be boarded and inspected or does not fulfil any of the obligations laid down in article 19 (a) to (e) of the 2010 NEAFC Scheme, the vessel shall be presumed to have engaged in IUU activities in accordance with article 38 para. 3. Similar procedures for inspecting non-Contracting Party vessels can be seen in the 2010 Northwest Atlantic Fisheries Or-ganization (NAFO) Conservation and Enforcement Measures (hereaf-ter the 2010 NAFO Scheme).134

At first sight, at-sea inspection of non-Contracting Party vessels may seem to be an institutional application of the law of dédoublement fonctionnel because a regional fisheries organ polices fishing activities of vessels on the high seas, even if the flag state of a fishing vessel is not a party to the organ. However, at-sea inspection of non-Contracting Party vessels seems to leave some room for discussion with regard to its legitimacy. The most debatable issue may be the presumption by re-gional fisheries organs of undermining conservation and enforcement measures. In this regard, article 37 para. 2 of the 2010 NEAFC Scheme stipulates that the non-Contracting Party vessel that has been sighted or by other means identified as engaging in fishing activities in the conven-tion area is presumed to be undermining the Recommendations estab-lished under the Convention.135 Article 37 para. 3 of the NEAFC Scheme further provides that,

“In the case of a non-Contracting Party vessel sighted or by other means identified as engaging in transhipment activities, the pre-sumption of undermining conservation and enforcement measures applies to any other non-Contracting Party vessel that has been identified as having engaged in such activities with that vessel.” The presumption of undermining conservation and enforcement

measures is provided in regulatory measures of other fisheries organs,136 such as the NAFO,137 the Indian Ocean Tuna Commission (IOTC),138

134 The Northwest Atlantic Fisheries Organization, Conservation and En-

forcement Measures, NAFO/FC Doc. 11/1 available at <http://www.nafo. int/fisheries/CEM/CEM.pdf>.

135 However, vessels of the co-operating non-Contracting Parties under article 34 are exempted from the presumption.

136 R. Rayfuse, “Regulation and Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-Flag State Enforcement in the High Seas Fisheries and Disarmament Contexts”, Austr. Yb. Int’l L. 24 (2005), 181 et seq. (188).

137 Article 52 of the 2010 NAFO Scheme.


the International Commission for the Conservation of Atlantic Tunas (ICCAT),139 and Commission for the Conservation of Antarctic Ma-rine Living Resources (CCAMLR).140 Nonetheless, the presumption of undermining the measures in the regulatory areas raises at least two is-sues that need further consideration.

A first issue concerns the legitimacy of conservation measures of re-gional fisheries organs. Unlike port state jurisdiction, fisheries organs do not apply “applicable international rules and standards established through the competent international organization or general diplomatic conference.” The legitimacy of regulatory measures adopted by re-gional fisheries organs is not generally accepted at the global level. In fact, these measures are qualified by the economic, political and social needs of the Member States to such fisheries organs. Accordingly, in some cases, opinions of the Member States may be divided with respect to the validity of regulatory measures. Some fisheries organisations thus affirm that a State Party which is opposed to a regulatory measure adopted by a fisheries organ is exempted from the application of the measure.141 It appears unreasonable to argue that vessels of third states are automatically bound by the regulatory measures of the regional fisheries organisations, while Member States may be released from such regulations by opposition. It must also be remembered that in accor-dance with the principle pacta tertiis nec nocent nec prosunt, the regional treaty is not binding upon non-Contracting Parties unless rules of the treaty become part of customary law.

A second issue relates to the consistency with the principle of free-dom of the high seas. With some exceptions, such as high seas fishing

138 Para. 2 of Resolution 01/03 Establishing a Scheme to Promote Compliance

by Non-Contracting Party Vessels with Resolutions Established by IOTC, 2001.

139 Para. 1 of the Recommendation by ICCAT Concerning the Ban on Land-ings and Transhipments of Vessels from Non-Contracting Parties Identi-fied as Having Committed a Serious Infringement, entered into force 21 June 1999.

140 Para. 4 of Conservation Measure 10-07 (2009): Scheme to Promote Com-pliance by Non-Contracting Party Vessels with CCAMLR Conservation Measures.

141 For instance, article 12 (2) (b)(c) of the NEAFC Convention; article XII (1) and (3) of the 1978 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries; article VIII (3) (c) and (e) of the 1966 Inter-national Convention for the Conservation of Atlantic Tunas.


for anadromous and catadromous species,142 fishing on the high seas is, prima facie, lawful in international law. While the presumption con-cerned shifts the burden of proving innocence to vessels of non-Contracting Parties, there is scope to consider the question whether the reversal of the burden of proof is not contrary to the principle of free-dom of fishing. It is true that all states are under a duty to co-operate with other states in taking the conservation measures concerning the living resources of the high seas in accordance with arts 117 and 118 of the UNCLOS. However, it is questionable whether the duty to co-operate will automatically lead to the reversal of the burden of proof.143 Overall the legitimacy of at-sea inspection of non-Contracting party vessels on the high seas seems to remain a matter for discussion.

b. Port Inspection of Non-Contracting Party Vessels

Some regional fisheries organisations apply port inspection of non-Contracting Party vessels. Take the 2010 NEAFC Scheme as an exam-ple again. Article 40 of the Scheme provides as follows,

“When a non-Contracting Party vessel enters a port of any Con-tracting Party, it shall be inspected by authorized Contracting Party officials knowledgeable of Recommendations established under the Convention and shall not be allowed to land or tranship any fish un-til this inspection has taken place.” Article 41 further provides that landings and transhipments of all

fish from a non-Contracting Party vessel which has been inspected in port “shall be prohibited in the ports and waters of all Contracting Par-ties if such an inspection reveals that the vessel has species onboard which are subject to Recommendations established under the Conven-tion unless the master of the vessel provides satisfactory evidence to the competent authorities proving that the fish were caught outside the Regulatory Area or in compliance with all relevant Recommendations established under the Convention.” Inspections of non-Contracting

142 Fishing of anadromous and catadromous species beyond the 200-nautical

mile limit is in principle forbidden by arts 66 (3) and 67 (2) of the UN-CLOS, respectively.

143 M. Hayashi, “New Developments in International Fisheries Law and the Freedom of High Seas Fishing” (in Japanese), The Journal of International Law and Diplomacy 102 (2003), 156 et seq. (172).


Party vessels in port are also provided in the IOTC,144 ICCAT,145 CCAMLR146 and NAFO.147

As the port is part of internal waters which are under the territorial sovereignty of the coastal state, that state is entitled to regulate access to its ports and landings and transhipments there. There appears to be scope to argue that to some extent, port inspection can contribute to protect community interests with regard to the conservation of living resources on the high seas. On the other hand, a question may arise whether port state inspection of non-Contracting Party vessels is equivalent to de facto extension of regulatory measures of a specific fisheries organ toward the high seas. In this regard, care should be taken that the legitimacy of conservation measures adopted by regional fish-eries organs or coastal states is not a priori established in relation to third states. Furthermore, as demonstrated by the EU-Chile Swordfish dispute,148 the unilateral prohibition of access, landing and tranship-ments in the port may entail the risk of creating an international dispute between the port state and the fishing state. The consistency between such unilateral measures and the WTO law, in particular, Article XX of the 1994 General Agreement on Tariffs and Trade, may also be at is-sue.149 Thus the port state should be cautious about unilaterally apply-ing the conservation measures to vessels of third states fishing on the high seas.150 In addition, it is submitted that the current system of port

144 Paras 4 and 5 of IOTC Resolution 05/03 Relating to the Establishment of

an IOTC Programme of Inspection in Port. 145 Para. 2 of the Recommendation by ICCAT Concerning the Ban on Land-

ings and Transhipments. 146 Para. 5 of the CCAMLR Conservation Measure 10-07 (2009). 147 Article 54 of the 2010 NAFO Scheme. 148 WTO, Chile – Measures Affecting the Transit and Importation of Sword-

fish, Request for the Establishment of a Panel by the European Communi-ties, WT/DS193/2, 7 November 2000; International Tribunal for the Law of the Sea, Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean, 20 December 2000. However, both cases were suspended in March 2001. The dispute was even-tually settled by negotiation between the parties. With respect to the EU-Chile Swordfish Dispute, see M.A. Orellana, “The Swordfish Dispute be-tween the EU and Chile at the ITLOS and the WTO”, Nord. J. Int’l L. 71 (2002), 55 et seq.

149 Cf. D. König, “The Enforcement of the International Law of the Sea by Coastal and Port States”, ZaöRV/ HJIL 62 (2002), 1 et seq. (10).

150 Hayashi, see note 143, 172-173.


inspections is not very effective largely due to insufficient vessel infor-mation and lack of compliance among port states. Inconsistency of port state inspections may create a problem associated with ports of conven-ience.151

3. Conclusions

The above considerations yield the following conclusions. (i) Concerning conservation of living resources in the EEZ, the

coastal state has a broad discretion in determining the total allowable catch as well as the maximum sustainable yield (MSY). There is no re-view process by a third body on this matter. It is argued that the con-servation of living resources in the EEZ is essentially characterised by the promotion of the economic and social interests of the coastal state.

(ii) On the high seas, the flag state has the responsibility to imple-ment relevant treaties concerning conservation of marine living re-sources. Nonetheless, it became apparent that the flag state responsibil-ity is inadequate to ensure effective compliance with these treaties due to the practice of flags of convenience and IUU fisheries.

(iii) In response, regional fisheries organs increasingly adopt non-flag state measures. On the one hand, it appears that to a certain extent, at-sea and port state inspections of Contracting Party vessels can con-tribute to enhance effectiveness of regulatory measures with regard to conservation of living resources on the high seas. On the other hand, le-gitimacy of at-sea inspections of non-Contracting Party vessels is not free from controversy because conservation measures adopted by re-gional fisheries organs cannot be considered as a priori legitimate to vessels of non-Contacting Parties.

(iv) In order that regional fisheries organs and their Member States could assume the role of an organ of the international community in conservation of living resources on the high seas, there will be a need to enhance the legitimacy of conservation measures. In this regard, a pos-sible solution may be that regional fisheries organs invite all non-Contracting Parties which have fisheries interests in the regulatory ar-

151 S. Flothmann/ K. von Kistowski/ E. Dolan/ E. Lee/ F. Meere/ G. Album,

“Closing Loopholes: Getting Illegal Fishing Under Control”, Science 328 (2010), 1235 et seq.


eas to participate at meetings to formulate conservation measures as a co-operating party.152

V. General Conclusions

On the basis of the above considerations, three possible models may be identified with regard to the protection of community interests in in-ternational law.

The first model involves the protection of community interests through an international organisation. This is the most institutionalised model. An illustrative example is provided by the ISA governing the ac-tivities in the Area. As discussed earlier, activities in the Area are con-trolled by an international organisation, i.e., the ISA for the benefit of mankind as a whole. It may be said that presently the international community or mankind has an operational organ to promote commu-nity interests in the Area.153 This is an important innovation in the sense that it introduces the concept of “mankind” as an emerging actor in international law.

The second model concerns the protection of community interests by an individual application of the law of dédoublement fonctionnel. According to this model, community interests are to be protected by each state which would assume the role of an advocate of the interna-tional community. This is essentially a decentralised model. The case in point in the law of the sea may be the port state jurisdiction with regard to the regulation of vessel-source marine pollution.

The third model pertains to the protection of community interests through an institutional application of the law of dédoublement fonc-tionnel. An example may be provided by the port state control embod-ied in various regional Memoranda of Understanding. According to this model, action of relevant states is more institutionalised. It may be said that this mode is in the middle between the first and second models.

The first model remains exceptional in international law, and it ap-pears difficult to expect that a similar organisation like the ISA will de-velop in other branches of the law in the near future. A dilemma thus

152 For instance, such a mechanism is adopted by the 2010 NEAFC Scheme

(article 34 (2)). 153 In this sense, it may be said that this mode is akin to the supra-state society

(société super étatique).


arises as to how it is possible to protect community interests, which es-sentially require collective action, in the decentralised legal system. In response, at the present stage, the second and third models on the basis of the law of dédoublement fonctionnel seem to furnish realistic mecha-nisms for the protection of community interests in international law.

On the other hand, as noted, the lack of adequate incentive may be a major obstacle to the individual application of the law of dédoublement fonctionnel. Moreover, the lack of co-ordination may create another obstacle, undermining the efficacy of the protection of community in-terests. Hence there will be a need to further institutionalise the applica-tion of the law of dédoublement fonctionnel. Furthermore, it must be remembered that, as shown in the conservation of marine living re-sources, community interests and national interests may be mixed. As a consequence, in some cases, the application of the law of dédoublement fonctionnel may entail the risk of pursuing interests of a particular state or a group of states under the guise of action in the protection of com-munity interests. Considering that the concept of community interests may be used as an ideology to justify a policy of a state or a particular group of states, to ensure the legitimacy of rules and standards is of cen-tral importance in the application of the law of dédoublement fonction-nel.

At present one can no longer deny that the survival of mankind as a whole may be difficult without the protection of community interests. It is argued that such interests cannot be effectively protected by the le-gal system relying exclusively on the principle of reciprocity. Thus the quest for effective mechanisms for the protection of community inter-ests will continue to be an issue of considerable importance in interna-tional law.

The UN Security Council’s Responsibility and the “Responsibility to Protect”

Hitoshi Nasu*



I. Introduction II. The International Community and the “Responsibility to Protect” III. The Responsibility of the UN Security Council IV. Theoretical Inquiry into the Concept of Responsibility

1. The Concept of Ex Ante Responsibility 2. The Concept of Remedial Responsibility 3. The Concept of Collective Responsibility

V. Responsibility Practices of the UN Security Council 1. The Democratic Republic of the Congo 2. Myanmar 3. Darfur

VI. Evolving Conception of the Security Council’s Responsibility VII. Conclusion

Nasu, The UN Security Council’s Responsibility 379

I. Introduction

The role of the Security Council has been one of the central aspects of the responsibility to protect concept throughout its development. The International Commission on Intervention and State Sovereignty (ICISS), which articulated the idea of the responsibility to protect in 2001, regarded the role of the Security Council as “of paramount im-portance.”1 The 2005 World Summit Outcome expressed the prepared-ness of the international community to take collective action, through the Security Council, to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity on a case by case basis.2 The Security Council itself reaffirmed the provisions of the World Summit Outcome regarding this responsibility.3 Nonetheless, during the 39th Seminar of the International Peace Institute and the Diplo-matic Academy Vienna on Peacemaking and Peacekeeping, entitled “The UN Security Council and the Responsibility to Protect: Policy, Progress and Practice,” Christoph Mikulaschek posed a seemingly in-nocuous, yet deeply troubling question: “how does the responsibility to protect relate to the United Nations Security Council’s primary respon-sibility for the maintenance of international peace and security?”4

Despite the centrality of the Security Council’s role in the responsi-bility to protect debate, little attention has been drawn so far to the re-lationship between the Security Council’s primary responsibility for the maintenance of international peace and security and its role in imple-

* I express my gratitude to Professor Peter Cane for his invaluable comments

and to Gabrielle Lauder, Sarah McFadden, and Stephen Priest for their re-search assistance.

1 The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, 2001 (hereinafter ICISS Report), 49.

2 A/RES/60/1 of 16 September 2005, para. 139. 3 S/RES/1674 (2006) of 28 April 2006, para. 4. 4 C. Mikulaschek, “The United Nations Security Council and the Responsi-

bility to Protect: Policy, Process, and Practice, Report from the 39th Inter-national Peace Institute Vienna Seminar on Peacemaking and Peacekeep-ing”, in: H. Winkler/ T. Rød-Larsen/ C. Mikulaschek (eds), The UN Secu-rity Council and the Responsibility to Protect: Policy, Process, and Practice, 2010, 20 et seq. (20).


menting the responsibility to protect on behalf of the international community.5

As clarified in a Concept Note for the Interactive Thematic Dia-logue of the General Assembly on the Responsibility to Protect in July 2009, none of the powers conferred upon the Security Council under the Charter are directed towards the responsibility to protect or an en-forcement of international human rights law and international humani-tarian law.6

Moreover, the discretion given to the Security Council “implies a variable commitment totally different from the consistent alleviation of suffering embodied in the responsibility to protect.”7 Why, then, is the Security Council to assume the responsibility to protect on behalf of the international community? And even if the Security Council is to as-sume the responsibility to protect, to what extent should this relate to its primary responsibility for the maintenance of international peace and security under the Charter? Should the Security Council’s respon-sibility to protect be engaged only when it coincides with the Security Council’s finding of a threat to the peace under Article 39 of the Char-ter?

These questions form the topic of this article. It critically examines the Security Council’s responsibility, as envisaged in the responsibility to protect concept, and the way this has influenced the conception of the Security Council’s responsibility among Council members. To that end, Part II. critically examines the meaning of “international commu-nity” and the legal nature of its responsibility. Part III. revisits the re-sponsibility of the Security Council under the Charter, outlining three different meanings of its responsibility and examining the scope for ac-commodating the responsibility to protect concept. Part IV. turns to a more theoretical inquiry into the notion of responsibility itself, high-lighting three important conceptions of responsibility relevant to the consideration of the legal nature of the Security Council’s responsibility to protect. Having regard to those relevant conceptions of responsibil-ity, Part V. examines the Security Council’s responsibility practices

5 Cf. A. Peters, “The Security Council’s Responsibility to Protect”, Interna-

tional Organizations Law Review 8 (2011). See also, literature cited in notes 21-25, below.

6 “Concept Note on the Responsibility to Protect Populations from Geno-cide, War Crimes, Ethnic Cleansing and Crimes against Humanity”, Doc. A/63/958 of 9 September 2009, 4.

7 Ibid.


since the emergence of the responsibility to protect concept. Part VI. then considers the extent to which the legal nature of the Security Council’s responsibility has expanded to accommodate the responsibil-ity to protect concept.8 The article is concluded with the summary of key findings and their implications.

II. The International Community and the “Responsibility to Protect”

The basic tenet of the responsibility to protect is as follows: national authorities have the primary responsibility to protect their own citizens from genocide, war crimes, ethnic cleansing, and crimes against human-ity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. On the other hand, the international community, through the United Nations, has the responsibility to use appropriate diplomatic, humanitarian, and other peaceful means to help to protect populations from those atroci-ties.9 However, if peaceful means are inadequate and national authori-ties are manifestly failing to fulfill their responsibility to protect, the in-ternational community is prepared to take collective action, through the

8 The responsibility to protect concept is considered to have emerged when

two independent reports in relation to mass atrocities in Rwanda and Sre-brenica were released in late 1999. Although it was first articulated in the 2001 ICISS Report, those reports already implicated the idea of the respon-sibility to protect and had significant impacts for the development of the concept. See, Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, Doc. S/1999/1257 of 16 December 1999, 32, 37-38, 44; Report of the Secretary-General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, Doc. A/54/549 of 15 November 1999, para. 501.

9 See A/RES/60/1, see note 2; Implementing the Responsibility to Protect, Report of the Secretary-General, Doc. A/63/677 of 23 January 2009 (here-inafter 2009 Report of the Secretary-General), 15-21; In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, Doc. A/59/2005 of 21 March 2005, para. 135; Report of the High-Level Panel on Threats, Challenges, and Change, A More Secure World: Our Shared Responsibility, Doc. A/59/565 of 2 December 2004 (hereinafter High-Level Panel Report), para. 201; ICISS Report, see note 1, 23-25.


Security Council.10 The idea that the international community has the responsibility to protect is clearly based on the assumption that some form of collective agency exists, which possesses the capacity and will-ingness to fulfill this responsibility.11 However, it is not self-evident whether the “international community” is merely rhetoric, describing the sum of states without adding substance to a legal argument. It may also be understood as a societal concept to signify that the community is endowed with responsibilities which are distinct from those of indi-vidual states, or even in a normative sense as a basis for establishing and justifying new principles.12

The text of the 2005 World Summit Outcome distinguishes the in-ternational community and the United Nations, regarding the latter as an agent through which the international community fulfills its respon-sibility.13 It may be that it is only natural to regard the international community as rhetoric or “imagined”,14 and therefore the United Na-tions, as the most universal body, is expected to provide an institutional

10 A/RES/60/1, see note 2. See generally, A.J. Bellamy, Responsibility to Pro-

tect: The Global Effort to End Mass Atrocities, 2009; G. Evans, The Re-sponsibility to Protect: Ending Mass Atrocity Crimes Once and For All, 2008.

11 The term “international community” has been variably understood in lit-erature. See generally, R. Buchan, “A Clash of Normativities: International Society and International Community”, International Community Law Review 10 (2008), 3 et seq.; G. Abi-Saab, “Whither the International Community?”, EJIL 9 (1998), 248 et seq.; B. Simma/ A. Paulus, “The ‘In-ternational Community’, Facing the Challenge of Globalization”, EJIL 9 (1998), 266 et seq.; B. Simma, “From Bilateralism to Community Interest in International Law”, RdC 250 (1994), 217 et seq. (234); H. Mosler, The In-ternational Society as a Legal Community, revised edition, 1980.

12 For detailed analysis of different references to the international community in practice, see D. Greig, “‘International Community’, ‘Interdependence’ and All That … Rhetorical Correctness?”, in: G. Kreijen et al. (eds), State, Sovereignty, and International Governance, 2002, 521 et seq.

13 “The international community, through the United Nations, also has the responsibility ...” (ibid., para. 139) and “The international community should … support the United Nations in establishing an early warning ca-pability.” (A/RES/60/1, see note 2, para. 138).

14 See D. Kritsiotis, “Imagining the International Community”, EJIL 13 (2002), 961 et seq. (examining the twin conceptions of “international com-munity” from the reading of Thomas Franck’s two influential books – Fairness in International Law and Institutions, 1995 and The Power of Le-gitimacy Among Nations, 1990).


form to deliver the community’s will.15 Yet, this could also be seen as a deliberate political decision to centralize the agency of the international community into the United Nations so that no other actors, such as re-gional organizations, coalition of states or individual states, can claim international responsibilities on behalf of the international community. In fact, the Secretary-General made it explicit in his 2009 Report on “Implementing the Responsibility to Protect” that “[t]he process of de-termining the best course of action, as well as of implementing it, must fully respect the provisions, principles and purposes of the Charter.”16

With regard to collective action, the 2005 World Summit Outcome specifically refers to the Security Council, through which, it is stated, the international community is prepared to act in accordance with the Charter.17 The ICISS observes that “there is no better or more appro-priate body than the Security Council to deal with military intervention issues for human protection purposes.”18 As the Security Council has the primary responsibility for the maintenance of international peace and security,19 and the members have agreed to accept and carry out its decisions,20 it is understandable that this position has been taken.

From a normative point of view, however, the question arises as to whether the Security Council is truly an appropriate organ to be en-trusted with the international community’s responsibility to protect. The Security Council is a creation of post-World War II politics, re-flecting states’ preoccupation with the maintenance of international peace and security, not with the protection of people from mass atroci-ties. The increased activities of the Security Council since the end of the Cold War have been seen as positive development. Yet, the rationale 15 Of course, doubt can be cast upon whether such a will of the international

community can be formed with the conception of common goods and val-ues. See R. Menon, “Pious Words, Puny Deeds: The ‘International Com-munity’ and Mass Atrocities”, Ethics & International Affairs 23 (2009), 235 et seq.; J.R. Crawford, “Responsibility to the International Community as a Whole”, Ind. J. Global Legal Stud. 8 (2001), 303 et seq. (307).

16 2009 Report of the Secretary-General, see note 9, 9. 17 A/RES/60/1, see note 2. 18 ICISS Report, see note 1, para. 6.14. However, the ICISS Report does not

rule out the role of the General Assembly, regional arrangements, and a group of individual states in resorting to the use of armed force by way of discharging the international community’s responsibility. Ibid., paras 6.36-6.37.

19 Article 24 UN Charter. 20 Article 25 UN Charter.


behind the creation of this body, though as sound today as it was then, does not initially support the idea that the Security Council is the agent of the international community in the implementation of the interna-tional responsibility to protect.21 The inaction and ineffectiveness of this organ in dealing with populations at risk of mass atrocities in the past raise doubt about the extent to which the Security Council, as the authorized body of choice, can represent the international community and implement the responsibility to protect.

There are additional difficulties due to the systemic political con-straints on its decision-making process,22 including, in particular, fetters imposed by the veto power. Since the idea of the responsibility to pro-tect emerged, there have been calls for the five permanent members not to exercise their veto on matters of grave humanitarian concern when their vital national interests are not at stake.23 However, even if these fetters were removed, the decision-making would continue to be dic-tated by the traditional realpolitik interests of the Member States. The responsibility to protect could be seen as an attempt to realize the lib-eral peace norm based on universal moral and ethical values by linking it to the elements of realpolitik in practice.24 Tardy, however critically observes that the responsibility to protect underestimates the gap be-tween the moral principles that are the basis of the concept and the po-litical conditions of institutional decision-making.25

Another issue surrounding the international community’s responsi-bility to protect concerns the question as to what is expected of the in-ternational community, or the United Nations and the Security Council acting on its behalf, in fulfilling this responsibility. The idea of the in-ternational community’s responsibility to protect has not been en- 21 C. Brown, “Moral Agency and International Society”, Ethics & Interna-

tional Affairs 15 (2001), 87 et seq. (92). See also A. Viotti, “In Search of Symbiosis: The Security Council in the Humanitarian Domain”, Int’l Rev. of the Red Cross 89 (2007), 131 et seq.; P. Hilpold, “The Duty to Protect and the Reform of the United Nations – A New Step in the Development of International Law?”, Max Planck UNYB 10 (2006), 35 et seq. (66).

22 See, e.g. J.I. Levitt, “Book Review: The Responsibility to Protect: A Beaver without a Dam?”, Mich. J. Int’l L. 25 (2003), 153 et seq. (169-173, 176).

23 ICISS Report, see note 1, para. 6.21; High-Level Panel Report, see note 9, para. 256; 2009 Report of the Secretary-General, see note 9, para. 61.

24 D. Chandler, “The Responsibility to Protect? Imposing the ‘Liberal Peace’”, International Peacekeeping 11 (2004), 59 et seq.

25 T. Tardy, “The UN and the Use of Force: A Marriage Against Nature”, Se-curity Dialogue 38 (2007), 49 et seq. (64).


dorsed without resistance. The wording of the 2005 World Summit Outcome was reportedly watered down because of the reluctance and opposition of the United States to a firmer “obligation” that might have obliged the Security Council to take collective action in particular cases in a particular way.26 It is arguable that the concept of the international community’s responsibility is sending a mixed (or even contradictory) message. It requires the international community to respect state sover-eignty and the principle of non-intervention unless there are excep-tional circumstances that genuinely “shock the conscience of mankind,” whilst at the same time urging the international community to commit to early peaceful engagement to prevent mass atrocities.27 Secretary-General Ban Ki-Moon attempts to clarify the relationship between the primary responsibility of national authorities and the role of the inter-national community by emphasizing that there is “no set sequence for moving from one to another, especially in a strategy of early and flexi-ble response.”28 However, it is not explained what exactly is expected of the international community in order to fulfill its responsibility, or un-der what circumstances, and to what extent, the international commu-nity is required to intervene.

One may find that the ambiguity as to what exactly the international community’s responsibility entails, in providing assistance or taking collective action, arises from the difficulty of turning the responsibility to protect concept into legal norms.29 In fact, it appears that the respon-sibility to protect has been widely considered a policy agenda and not a legally binding commitment by UN Member States.30 Some even go further, arguing that at the core of the responsibility to protect dis-course lies the desire among Western states to evade their policy re-

26 The wording adopted in the 2005 World Summit Outcome reads: “we are

prepared to take collective action, in a timely and decisive manner, … on a case by case basis”, A/RES/60/1, see note 2, para. 139. For details, see, e.g. L. Glanville, “The International Community’s Responsibility to Protect”, Global Responsibility to Protect 2 (2010), 287 et seq. (292-293); A.J. Bellamy, “Whither the Responsibility to Protect? Humanitarian Interven-tion and the 2005 World Summit”, Ethics & International Affairs 20 (2006), 143 et seq. (166).

27 Chandler, see note 24, 66-68. 28 2009 Report of the Secretary-General, see note 9, 9. 29 For discussion, see H. Nasu, International Law on Peacekeeping: A Study

of Article 40 of the UN Charter, 2009, 225-233. 30 See A. Bellamy, “The Responsibility to Protect – Five Years On”, Ethics &

International Affairs 24 (2010), 158 et seq. (166).


sponsibility and to prioritize policy rhetoric over political commit-ment.31 On the other hand, it has been argued that the concept of the responsibility to protect, referred to in the 2005 World Summit Out-come, means no more than restating the already existing responsibility of states and the international community under international law, rather than creating a new legally binding norm.32

Under international human rights law, states are under a general duty of due diligence to ensure respect for human rights within their territory or jurisdiction.33 Specifically, they are required to prevent and punish genocide under the Convention on the Prevention and Punish-ment of the Crime of Genocide,34 which also requires states to exercise due diligence, within their power, in preventing genocide.35 In the con-text of international humanitarian law, state parties to the 1949 Geneva Conventions are required, under common article 1, not only to respect

31 See e.g., D. Chandler, “Unravelling the Paradox of ‘The Responsibility to

Protect’”, Irish Studies in International Affairs 20 (2009), 27 et seq. (36-38). See also D. Chandler, “The Security-Development Nexus and the Rise of ‘Anti-Foreign Policy’”, Journal of International Relations and Develop-ment 10 (2007), 362 et seq. (369-374).

32 Concept Note, see note 6, 3. This view is also shared by Member States. See, e.g. GAOR 63rd Sess., 97th Plenary Mtg., Doc. A/63/PV.97 of 23 July 2009, 25 (New Zealand); GAOR 63rd Sess., 98th Plenary Mtg., Doc. A/63/PV.98 of 24 July 2009, 1 (Austria), 5 (Switzerland), 26 (Nigeria); GAOR 63rd Sess., 99th Plenary Mtg., Doc. A/63/PV.99 of 24 July 2009, 18 (Mexico); GAOR 63rd Sess., 100th Plenary Mtg., Doc. A/63/PV.100 of 28 July 2009, 2 (Sri Lanka); GAOR 63rd Sess., 101st Plenary Mtg., Doc. A/63/PV.101 of 28 July 2010, 3 (Kenya).

33 L. Arbour, “The Responsibility to Protect as a Duty of Care in Interna-tional Law and Practice”, Review of International Studies 34 (2008), 445 et seq. (452). See also, B. Barbour/ B. Gorlick, “Embracing the ‘Responsibil-ity to Protect’: A Repertoire of Measures including Asylum for Potential Victims”, International Journal of Refugee Law 20 (2008), 533 et seq. (551-553).

34 UNTS Vol. 78 No. 1021, article 1. 35 Case Concerning the Application of the Convention on the Prevention and

Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007, Gen-eral List No. 91, 1 et seq. (hereinafter Bosnian Genocide Case), (154, para. 430).


but also to ensure respect for the Conventions in all circumstances,36 though how far this obligation extends outside the state’s jurisdiction remains unclear.37 The precautionary obligation to protect civilian populations to the maximum extent feasible from armed attacks during armed conflicts applies to the respective parties of international and non international armed conflicts.38

It must be noted, however, that the international community’s re-sponsibility to provide assistance or to take collective action is clearly different in nature from a sovereign state’s responsibility towards its own population.39 A state’s responsibility to protect its population un-der the existing rules of international law cannot automatically be com-pared with the international community’s responsibility to act when na-tional authorities are manifestly failing to protect their citizens. It is ar-

36 Of particular relevance for the protection of civilian populations is the Ge-

neva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, UNTS Vol. 75 No. 973.

37 For an expansive interpretation of this general obligation, see, e.g., S. Wills, Protecting Civilians: The Obligations of Peacekeepers, 2009, 100-106; L. Boisson de Chazournes/ L. Condorelli, “Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests”, Int’l Rev. of the Red Cross 82 (2000), 67 et seq. See in contrast, F. Kalshoven, “The Under-taking to Respect and Endure Respect in All Circumstances: From Tiny Seed to Ripening Fruit”, Yearbook of International Humanitarian Law 2 (1999), 3 et seq. The ICJ in its Advisory Opinion on the Legal Conse-quences of the Construction of a Wall in the Occupied Palestinian Territory only speaks of “an obligation not to recognize the illegal situation”, “an obligation not to render aid or assistance in maintaining the situation”, and the UN’s duty to “consider what further action is required to bring to an end the illegal situation”, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, 136 et seq. (199-200, paras 158-160). The crucial question is whether common article 1 ex-tends to include an obligation to take action to prevent violations or to protect civilians outside one’s own control.

38 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, UNTS Vol. 1125 No. 17512, article 58; J.M. Henchaerts/ L. Doswald-Beck, Customary International Humanitarian Law, 2005, Vol. 1, 60.

39 See A.J. Bellamy/ R. Reike, “The Responsibility to Protect and Interna-tional Law”, Global Responsibility to Protect 2 (2010), 267 et seq.; E. Strauss, “A Bird in the Hand is Worth Two in the Bush – On the Assumed Legal Nature of the Responsibility to Protect”, Global Responsibility to Protect 1 (2009), 291 et seq.


guable that the United Nations is bound by universal human rights and humanitarian norms and rules as reflected in the purposes and princi-ples of the Charter.40 Yet, even if that is the case, it lacks the same au-thority and capacity as sovereign states to enable it to assume the posi-tive obligation to ensure the protection of human rights and respect for humanitarian law through law enforcement mechanisms.

The legal basis for the international community’s responsibility to protect could be found in articles 40 and 41 of the ILC’s Articles on State Responsibility,41 which provide a positive duty to cooperate to bring to an end any serious breaches, by a state, of an obligation arising under a peremptory norm of general international law.42 There is no doubt that the prohibition of genocide and war crimes is well estab-lished as a peremptory norm under international law,43 though it is less clear in relation to ethnic cleansing and crimes against humanity.44 As noted in the ILC’s commentary, it remains an open question whether general international law at present prescribes such a positive duty to cooperate for states and international organizations as members of the

40 See, e.g., E. de Wet, The Chapter VII Powers of the United Nations Secu-

rity Council, 2004, 191 et seq. 41 Articles on the Responsibility of States for Internationally Wrongful Acts,

reproduced in A/RES/56/83 of 12 December 2001. For a discussion see S. Szurek, “La responsabilité de protéger, nature de l’obligation et responsa-bilité internationale”, in: Société Française pour le Droit International (ed.), La responsabilité de protéger – colloque de Nanterre, 2008, 91 et seq. (111-114).

42 See also arts 40 and 41 of the ILC’s Draft Articles on Responsibility of In-ternational Organizations, ILC Report on the Work of its Sixty-First Ses-sion, GAOR 64th Sess., Suppl. No. 10, Doc. A/64/10 of 4 May to 5 June and 6 July to 7 August 2009, 125-128.

43 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Provisional Measures, Order of 13 September 1993), ICJ Reports 1993, 325 et seq. (paras 29 et seq., 439-440); Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226 et seq. (257, para. 79) (stating that fundamental rules of humanitarian law “constitute intrans-gressible principles of international customary law”).

44 To the extent that different practices constituting the act of ethnic cleansing qualify as genocide or war crimes, ethnic cleansing can be seen as being prohibited under peremptory norms; Strauss, see note 39, 315-316. For the view that the prohibition of crimes against humanity is also a peremptory norm, see e.g. A. Orakhelashvili, Peremptory Norms in International Law, 2006, 64; L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status, 1988, 596-600.


international community.45 However, it is also acknowledged that “such cooperation, especially in the framework of international organizations, is carried out already in response to the gravest breaches of interna-tional law.”46

One may still cast doubt on the legal conception of the international community’s responsibility due to the uncertainty surrounding the con-sequences of non-compliance.47 However, it would be wrong to assume that the same or similar legal liability regime, as it applies to state re-sponsibility, would equally apply to the international community’s re-sponsibility.48 The ILC’s work on the responsibility of international or-ganizations has been extensively relying upon the Articles on State Re-sponsibility without defining the meaning of “international responsibil-ity” with regard to international organizations.49 The strongest criti-cism against this approach came from the IMF, asking “how would an international organization be held responsible for a finding … that it had failed to fulfill the mandate for which it was established?”50 The in-clusion of omission as an internationally wrongful act also poses pecu-liar problems, for an international organization may be held responsible for not taking action even if this inaction is the result of the organiza-tion’s lawful decision-making process under its constitutive instru-ment.51

45 J. Crawford, The International Law Commission’s Articles on State Re-

sponsibility: Introduction, Text and Commentaries, 2002, 249. 46 Ibid. 47 C. Stahn, “Responsibility to Protect: Political Rhetoric or Emerging Legal

Norm?”, AJIL 101 (2007), 99 et seq. (117-118). 48 Cf. J.E. Alvarez, “The Schizophrenias of R2P”, in: P. Alston/ E. Mac-

Donald (eds), Human Rights, Intervention, and the Use of Force, 2008, 275 et seq. (281-283).

49 ILC Report on the Work of its Fifty-Fifth Session, GAOR 58th Sess., Suppl. No. 10, Doc. A/58/10 of 5 May to 6 June and 7 July to 8 August 2003, 30.

50 ILC Responsibility of International Organizations: Comments and Obser-vations Received from International Organizations, Doc. A/CN.4/545 of 25 June 2004, 12.

51 Ibid., 13. Cf. article 31 of the Draft Articles on Responsibility of Interna-tional Organizations and accompanying commentary in ILC Report on the Work of its Sixty-First Session, see note 42, 113-114 (the responsible inter-national organization may not rely on its rules as justification for failure to comply with its obligations, but without prejudice to the applicability of


In the absence of a clear standard of conduct, the action or inaction of the international community, or an international organization acting on its behalf, cannot be subject to legal assessment with regard to the extent to which its responsibility to protect is discharged. The legal na-ture of the international community’s responsibility and the legal con-sequences arising from the failure of the international community to provide assistance or to take collective action to protect populations from mass atrocities cannot be understood within the framework of a traditional legal liability regime under international law. The responsi-bility to protect concept, as expressed in the 2005 World Summit Out-come, can thus far only be seen as the unanimous affirmation by states of their commitment to cooperate to bring to an end genocide, war crimes, ethnic cleansing, and crimes against humanity.

III. The Responsibility of the UN Security Council

Under Article 24 para. 1 of the Charter, the Security Council has the primary responsibility for the maintenance of international peace and security. On the basis of this responsibility entrusted to the Security Council, the key documents advocating the responsibility to protect identify the Security Council as the “right authority” to take collective action to fulfill the international community’s responsibility.52 Yet it is not clear whether and to what extent the Security Council’s responsibil-ity under the Charter corresponds to the international community’s re-sponsibility to protect. While the Charter speaks of the “primary re-sponsibility” of the Security Council for the maintenance of interna-tional peace and security, the international responsibility to protect is considered as secondary or subsidiary, given that each sovereign state has the primary responsibility to protect its own population according to the basic premise of the concept. The nature of the Security Coun-cil’s responsibility to protect cannot be considered without first exam-ining the different meanings that can be attached to the Security Coun-cil’s responsibility under the Charter.

First, “responsibility” in Article 24 para. 1 of the Charter may have a jurisdictional meaning in the sense that it defines the authority and competence of the Security Council, giving it primacy in matters relat-

those rules in respect of its responsibility towards its Member States and organizations).

52 See notes 17-18 above and accompanying text.


ing to the maintenance of international peace and security.53 The Gen-eral Assembly’s competence is therefore subject to constraint.54 Re-sponsibility in this jurisdictional sense not only indicates primacy in the exercise of power but also delimits the scope of the power. The Security Council’s responsibility is limited to matters relating to the mainte-nance of international peace and security, which arguably renders any action that goes beyond this mandate null and void ab initio.55 Council members clearly acknowledged the limit of the Security Council’s re-sponsibility, for example, during the open debate exploring the relation-ship between energy, security, and climate in 2007.56 During the discus-sion, the prevailing view regarded those non-traditional security issues only as “development issues” and denied the direct link between those issues and the mandate of the Security Council.57 In contrast, the Secu-rity Council discussed the issue of HIV/AIDS in 2000, stating that the HIV/AIDS pandemic, “if unchecked, may pose a risk to stability and security.”58

Second, responsibility can be understood in a political sense as the role that the Security Council plays in conflict management. As a crea-tion of post-World War II politics for the purpose of restoration and maintenance of international peace and security, the Security Council can be seen as politically and diplomatically responsible for managing conflicts between states, and, increasingly, national conflicts which spread across national borders. It was not originally envisaged that ac-tions of this organ would be guided by universally shared values such as the protection of human lives and human rights, as manifested by the responsibility to protect.59 Even if it is generally accepted that the Secu-rity Council must act in accordance with the purposes and principles of

53 J. Delbrück, “Article 24”, in: B. Simma (ed.), The Charter of the United

Nations: A Commentary, 2nd edition, 2002, 442 et seq. (445-446). 54 For details see, K. Hailbronner/ E. Klein, “Article 10”, ibid., 257 et seq. 55 For details, see the author’s discussion in H. Nasu, “Chapter VII Powers

and the Rule of Law: The Jurisdictional Limits”, Austr. Yb. Int’l L. 26 (2007), 87 et seq. See also K. Manusama, The United Nations Security Council in the Post-Cold War Era: Applying the Principle of Legality, 2006, Chapter 2.

56 SCOR 62nd Year, 5663rd Mtg., Doc. S/PV.5663 of 17 April 2007. 57 See e.g., ibid., 15-16 (South Africa), 17 (Russian Federation), 24 (Pakistan),

31 (Namibia). 58 S/RES/1308 (2000) of 17 July 2000. 59 See notes 24-25 above and accompanying text.


the Charter in discharging its political responsibility,60 this restriction does not require the Security Council to make decisions based on uni-versally shared values, nor does it change the political conditions that drive states to resort to force.

Third, the view has been expressed, even early in UN history, that the Security Council would be failing to fulfill its responsibility if it did not take particular action when it was supposed to or expected to do so.61 The underlying issue surrounding the legal nature of the Security Council’s responsibility lies in the criticism of “double standards” without principled justification for its collective action.62 Its failure to act consistently has been criticized as being motivated by the self-interest of permanent members rather than the collective interests of UN Member States.63 On the other hand, given the highly political na-ture of the decision-making processes in United Nations organs, such as the Security Council, it may also be true to say that “[i]ndeterminacies and inconsistencies have played a useful role in at-taining important objectives.”64

The responsibility to protect concept could play a potential role here to enhance the legal significance of the Security Council’s respon-sibility under Article 24 para. 1 of the Charter. Regardless of the origi-nal intention of the drafters, the subsequent practice of United Nations organs and Member States could clarify the interpretation of the Secu-rity Council’s responsibility,65 which may require the Security Council to act in relation to specific matters under certain circumstances. The question is to what extent the responsibility to protect concept and sub-sequent practice associated with that concept have made viable the in-terpretation of Article 24 para. 1 as imposing legal responsibility upon

60 See especially de Wet, see note 40, 198-204. 61 L.M. Goordich/ E. Hambro/ A.P. Simons, Charter of the United Nations:

Commentary and Documents, 3rd revised edition, 1969, 203. 62 See generally, D.D. Caron, “The Legitimacy of the Collective Authority of

the Security Council”, AJIL 87 (1993), 552 et seq. (559-561). 63 See e.g. M. Koskenniemi, “The Place of Law in Collective Security”, Mich.

J. Int’l Law 17 (1996), 455 et seq. (460-462); J. Quigley, “The ‘Privatization’ of the Security Council Enforcement Action: A Threat to Multilateralism”, Mich. J. Int’l L. 17 (1996), 249 et seq. (270-273).

64 O. Schachter, “United Nations Law”, AJIL 88 (1994), 1 et seq. (9). 65 Vienna Convention on the Law of Treaties, UNTS Vol. 1155 No. 18232, ar-

ticle 31 (3) (b). The subsequent practice does not exclude institutional prac-tice. See R. Gardiner, Treaty Interpretation, 2008, 246-249.


the Security Council to protect. The legal significance of Article 24 para. 1 thus needs to be understood in the context of institutional prac-tice.

IV. Theoretical Inquiry into the Concept of Responsibility

As discussed above, the responsibility to protect that the international community, or the Security Council as its agent, is required to imple-ment is different from the responsibility of national authorities to pro-tect their own population. The legal conception of the international community’s responsibility to protect on behalf of national authorities should therefore not be considered within the traditional legal liability regime that governs the international law of state responsibility. In this section, three distinct conceptions of responsibility that characterize the responsibility to protect concept are examined, drawing on the general legal philosophy of responsibility as the theoretical basis for a contex-tual analysis of the extent to which the Security Council has embraced the legal responsibility to protect.

1. The Concept of Ex Ante Responsibility

In his famous taxonomy of responsibility, H.L.A. Hart identifies four types of responsibility: “role responsibility”, which attaches to a par-ticular role, status or office (e.g., a sea captain’s responsibility for the safety of his or her ship); “causal responsibility”, which refers to a con-tribution made by human beings, things, conditions, and events to an outcome of importance (e.g., the long drought was responsible for the famine in India); “liability responsibility”, which refers to rule-based conditions of legal or moral liability such as to pay compensation and to be punished; and “capacity responsibility”, which refers to mental and physical capacities, such as capacity of understanding and control of conduct, required for the attribution of liability responsibility or for an efficacious operation of law.66 The conceptual apparatus underlying this taxonomy is undoubtedly focused upon individuals. However, those different conceptions of responsibility may find a more general application, mutatis mutandis, in respect of international organizations 66 H.L.A. Hart, Punishment and Responsibility, 2nd edition, 2008, 210-230.


and their organs. For example, according to this taxonomy, the Security Council’s responsibility in a political sense could be seen as a “role re-sponsibility”, whereas that of a jurisdictional meaning could be under-stood as a “capacity responsibility” should it be extended to embrace organizational capacity.

In exploring the legal nature of the Security Council’s responsibility, Hart’s account, particularly of “liability responsibility”, is restrictive and unsatisfactory. Peter Cane points out that Hart’s discussion of legal responsibility is primarily focused on criminal law, ignoring both civil law and public law.67 More problematic for the purpose of the present inquiry is that Hart’s account of legal responsibility is essentially back-ward-looking, regarding liability to incur a sanction as the core sense of responsibility. Without denying the importance of sanctions Cane em-phasizes the significance of “prospective responsibility” – the idea that the law is as much concerned with telling us what our responsibilities are and how we should behave as with holding us accountable for the way we have behaved.68

Legal responsibility in this prospective sense involves a positive ob-ligation, requiring those who bear responsibility to take positive steps to achieve good outcomes or to prevent bad ones.69 Unlike backward-looking responsibility, ex ante responsibility does not specify the exact nature of the required act, leaving room for discretion and choice.70 It is rather guided by teleological norms that oblige an agent to bring about or to prevent certain states of affairs.71 Similarly, Giorgio Gaja draws the distinction between responsibility sensu lato, which can encompass a duty to protect in a prospective and positive sense, and responsibility sensu stricto dealing with the legal consequences of failing to fulfill that legal duty.72 Based on this distinction, Sandra Szurek characterizes the

67 P. Cane, Responsibility in Law and Morality, 2002, 29. 68 Ibid., 31-35. 69 Mark Bovens calls it active responsibility and contrasts it with passive re-

sponsibility that involves being held responsible after the event. See M. Bovens, The Quest for Responsibility: Accountability and Citizenship in Complex Organisations, 1998, 26-38.

70 D. Birnbacher, “Philosophical Foundations of Responsibility”, in: A.E. Auhagen/ H.W. Bierhoff (eds), Responsibility: The Many Faces of a Social Phenomenon, 2001, 9 et seq. (10).

71 Ibid. 72 G. Gaja, “Introduction”, in: Société Française pour le Droit International

see note 41, 87 et seq. (87).


responsibility to protect as encompassing positive obligations.73 The re-sponsibility to protect concept can thus be understood as a way of promoting such prospective responsibility to prevent mass atrocity crimes being committed.

2. The Concept of Remedial Responsibility

The second important aspect of the Security Council’s responsibility concerns the distinction between outcome responsibility and remedial responsibility.74 Outcome responsibility, according to David Miller, is the responsibility that we bear for our own actions and decisions, whereas remedial responsibility arises in a situation where we may have to come to the aid of those in need of help.75 This distinction is signifi-cant for understanding the nature of the Security Council’s responsibil-ity at issue here.

The idea that the Security Council implements the responsibility to protect on behalf of the international community effectively means that the Security Council’s responsibility entails remedial responsibility. Yet, remedial responsibility is by nature an undistributed duty, which eve-ryone is subject to and is unlikely to be discharged by anyone unless it can be allocated in some way.76 As discussed earlier, the consensus reached in the 2005 World Summit Outcome specifically refers to the Security Council as a “medium” for the international community tak-ing collective action.

On what ground, then, can one say that the Security Council has a special responsibility to intervene to remedy the state of affairs in ques-tion? Under what circumstances is the Security Council responsible for providing remedial measures? It is possible to argue that the Security Council may be held responsible for a situation that needs to be reme-died, because it has been directly caused by an action of the Security Council or its delegate authority. Yet, the responsibility to protect con-cept does not envisage situations where the Security Council’s prior en-gagement might have caused mass atrocities. Therefore, the legal

73 Szurek, see note 41, 94-97. 74 For details, see D. Miller, National Responsibility and Global Justice, 2007,

Ch. 4. 75 Ibid., 81. 76 Miller, see note 74, 98.


ground upon which the Security Council assumes remedial responsibil-ity must be sought somewhere else.

Drawing on the ICJ’s findings in the Bosnian Genocide Case,77 Louise Arbour identifies three elements that give rise to a special re-sponsibility to take remedial measures – influence, proximity, and in-formation.78 She posits that members of the Security Council, particu-larly the five permanent members, hold a special responsibility to en-sure the protection of populations from mass atrocities because of the power they wield and their global reach.79 Likewise, David Miller re-fers to legal capacity and resource capacity as a possible ground for as-signing remedial responsibility.80 It is thus possible to argue that the Se-curity Council is legally required to assume remedial responsibility to protect populations from mass atrocities by virtue of its legal capacity to take collective enforcement action. Yet, interestingly, the flipside of this argument is that the Security Council’s remedial responsibility only extends so far as it can secure the resources necessary to carry out the responsibility.

3. The Concept of Collective Responsibility

The third distinctive characteristic of the Security Council’s responsibil-ity concerns collectivity, raising the question as to whether the Security Council is an entity to which collective responsibility can be ascribed. The question of what sorts of collectivities may qualify for the purpose of assigning responsibility has been a subject of controversy in different areas and disciplines – most prominently in relation to corporate re-sponsibility.81 At the theoretical level, ideas of collective responsibility have been variably expressed, ranging from the view that it is merely an aggregate of individual responsibilities of the members of a group to one that understands it as truly non-reducible and non-distributive to

77 Bosnian Genocide Case, see note 35, para. 430. 78 Arbour, see note 33, 453-455. 79 Ibid., 453. Cf. J.M. Welsh/ M. Banda, “International Law and the Respon-

sibility to Protect: Clarifying or Expanding States’ Responsibilities?”, Global Responsibility to Protect 2 (2010), 213 et seq. (221-226).

80 Miller, see note 74, 103. 81 See generally e.g. B. Fisse/ J. Braithwaite, Corporations, Crime and Ac-

countability, 1993; P. French, Collective and Corporate Responsibility, 1984.


individual members.82 Some argue that the international community’s responsibility is based on an imperfect duty in the sense that no specific state or agent in the community is morally bound to intervene.83 Others consider that the international community’s responsibility is imposed on all rational beings,84 leaving latitude to community members as to how to fulfill their collective responsibility.85

Collective responsibility may arise when like-minded groups have a high level of solidarity, sharing aims and outlooks in common and re-cognizing their like-mindedness.86 Joel Feinberg finds the basis of this justification in the vicarious liability of a party that has not contributed to the fault, which arises due to its position of being able to affect the conduct of other members.87 The expectation that the whole group will be held responsible for the conduct of one or some of its members arises when there is a high degree of solidarity within the collectivity. This is achieved where there exists a community of interest that is often associated with bonds of sentiments directed towards common objects, whilst sharing common and indivisible goods and harms.88

The notion of solidarity is recognized among states,89 which, as Rüdiger Wolfrum observes, “has become a quite common structural

82 L. May/ S. Hoffman, “Introduction”, in: L. May/ S. Hoffman (eds), Collec-

tive Responsibility: Five Decades of Debate in Theoretical and Applied Eth-ics, 1991, 4 et seq.

83 M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illus-trations, 3rd edition, 2000, xiii.

84 Cf. 2009 Report of the Secretary-General, see note 9, para. 61 (speaking of “shared responsibilities”).

85 C. Bagnoli, “Humanitarian Intervention as a Perfect Duty: A Kantian Ar-gument”, in: T. Nardin/ M.S. Williams (eds), Humanitarian Intervention, 2006, 117 et seq. (122-124).

86 Miller, see note 74, 117-119. 87 J. Feinberg, Doing & Deserving: Essays in the Theory of Responsibility,

1970, 233-243. 88 Ibid. See also D. Warner, An Ethic of Responsibility in International Rela-

tions, 1991, 62-69. Some scholars consider that even more loosely struc-tured groups without having much solidarity may identify themselves to be collectively responsible simply due to membership or the benefits they re-ceive through membership, H. McGary, “Morality and Collective Liabil-ity”, Journal of Value Inquiry 20 (1986), 157 et seq. (160); H. Arendt, “Col-lective Responsibility”, in: J.W. Bernauer (ed.), Amor Mundi: Explorations in the Faith and Thought of Hannah Arendt, 1987, 43 et seq. (45).

89 A/RES/59/193 of 20 December 2004, para. 4 (f).


principle of international law.”90 Karel Wellens discusses solidarity as a constitutional principle that is evidenced in a selected variety of branches of international law and plays a normative role to a varying degree in different areas of law.91 The relevant question for the purpose of the present inquiry is whether the degree of solidarity has reached the stage where states are prepared to assume responsibility for the ac-tion or inaction of the Security Council as if the decision were taken on their own.

The mutual assistance under Article 49 of the UN Charter which all Member States have agreed to give in carrying out the measures decided upon by the Security Council remains merely a general commitment to burden-sharing and equitable distribution of costs.92 Boisson de Cha-zournes correctly points out that solidarity should be distinguished from the duty of mutual assistance and even from the UN collective se-curity system more generally, as action under the Charter takes place in a regulated institutional framework without requiring the sense of soli-darity.93 The responsibility to protect concept agreed upon in the 2005 World Summit could be seen as a critical step towards a greater recogni-tion of collective responsibility in the Security Council’s decision-making process on the grounds of solidarity of the international com-munity as a whole.94 The real test for nourishing collective responsibil-ity of the international community in this sense lies in the extent to

90 R. Wolfrum, “Solidarity amongst States: An Emerging Structural Principle

of International Law”, Indian Journal of International Law 49 (2009), 8 et seq. (8).

91 K. Wellens, “Revisiting Solidarity as a (Re-)Emerging Constitutional Prin-ciple: Some Further Reflections”, in: R. Wolfrum/ C. Kojima (eds), Solidar-ity: A Structural Principle of International Law, 2009, 3 et seq.; K. Wellens, “Solidarity as a Constitutional Principle: Its Expanding Role and Inherent Limitations”, in: R.St.J. Macdonald/ D.M. Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community, 2005, 775 et seq.

92 Wellens, “Revisiting Solidarity as a (Re-)Emerging Constitutional Princi-ple”, see note 91, 28-29; B.O. Bryde/ A. Reinisch, “Article 49” and “Article 50”, in: Simma, see note 53, 781 et seq. and 784 et seq.

93 L. Boisson de Chazournes, “Responsibility to Protect: Reflecting Solidar-ity?”, in: Wolfrum/ Kojima, see note 91, 93 et seq. (96-97).

94 Ibid., 103.


which the value of solidarity prevails over sovereign self-interests in specific situations needing the Security Council’s collective action.95

Collective responsibility can also be found when there are clear rules and principles of attribution for conduct of individual members to a collective entity, where those participating in the practice share the benefits of the collective decision-making.96 Kok-Chor Tan goes even further arguing that it is an obligation on the part of the international community to institutionalize the duty to protect, through cooperation and coordination.97 The internal organizational structure and decision-making procedures of an organization introduce a requisite capacity of making patterns of coordinated action on a continuous basis.98 Thus, for example, the UN’s capacity responsibility was presumably the basis upon which the European Court of Human Rights considered that the conduct of UNMIK was attributable to the UN by virtue of the fact that it was a subsidiary organ of the UN created under Chapter VII of the Charter.99 Yet, identifying collective responsibility based on the rules of attribution may well cause a potential tension with the notion of prospective responsibility discussed earlier. The internal organiza-

95 P. Daillier, “La ‘Responsabilité de protéger’, corollaire ou remise en cause de

la souveraineté?”, in: Société Française pour le Droit International, see note 41, 41 et seq. (43).

96 Miller, see note 74, 119-123; Cane, see note 67, 148-158; T. Erskine, “As-signing Responsibilities to Institutional Moral Agents: The Case of States and Quasi-States”, Ethics & International Affairs 15 (2001), 67 et seq. (71-72).

97 K.C. Tan, “The Duty to Protect”, in: Nardin/ Williams, see note 85, 84 et seq. (104).

98 Erskine recognizes the collectivities possessing those characteristics as “in-stitutional moral agents”, Erskine, see note 96, 71-72. The focus of this arti-cle, however, is whether those institutional agents are capable of discharg-ing collective responsibilities, not whether they can qualify as “moral agents”.

99 Behrami v. France and Saramati v. France, Germany and Norway, 2007, European Human Rights Reports 45 (2007), SE 10, paras 142-143. On the other hand, the attribution of the conduct of KFOR operating under NATO commands to the UN was found on the basis of a broad “ultimate authority and control” retained by the Security Council, which has been heavily criticized. See e.g. K.M. Larsen, “Attribution of Conduct in Peace Operations: The ‘Ultimate Authority and Control’ Test”, EJIL 19 (2008), 509 et seq.; A. Sari, “Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases”, Human Rights Law Review 8 (2008), 151 et seq.


tional structure and decision-making procedures not only indicate the existence of capacity responsibility. When paired with the purpose and competence of the institution, its legal power may well be limited under the doctrine of ultra vires, which has an implication for the allocation of liability responsibility for the failure to perform the prospective duty.

One may suggest that collective responsibility could descend to a member, or certain members, of the Security Council if the failure to protect populations from mass atrocities was due to those Council Member States. Yet, from the perspective of prospective responsibility, individual members’ responsibilities cannot dispense with the notion of collective responsibility because of the difficulty in assigning specific shares of responsibility for the prevention of or reaction to mass atroci-ties. Should the share of responsibility descend to a member by virtue of its “special relationship of some sort to the people needing the pro-tection”, or to a state that is most capable of carrying out the protection duty?100 Or should it be allocated to the five permanent members of the Security Council because of their privilege of holding a veto power? Or to a particular member who blocks the Security Council from taking required action?

Even in the context of retrospective liability responsibility for the failure to suppress mass atrocities, the cause of the failure is inherently structural in the sense that it resulted not so much from a decision of individual Member States, but from the decision-making process within the constraints of a more systemic institutional structure.101 One may consider that if a permanent member exercises a veto to block a resolu-tion, that particular state is responsible for the Security Council’s failure to take action. Yet the allocation of responsibility will not be complete without taking into account the fact that UN Member States have agreed to this decision-making rule that confers veto power upon per-manent members. UN Member States also have supported the Security Council as the responsible authority in taking action to prevent and suppress mass atrocities despite the possible exercise of the veto power. This institutional context reinforces the view that the Security Council’s responsibility should be understood in the collective sense, to the ex-tent, if any, that members of the international community entrust the

100 Tan, see note 97, 96, 107. 101 Cf. N.C. Crawford, “Individual and Collective Moral Responsibility for

Systemic Military Atrocity”, Journal of Political Philosophy 15 (2007), 187 et seq. (189-192).


Security Council with an additional duty to protect populations from mass atrocities.

V. Responsibility Practices of the UN Security Council

It is thus necessary to understand that there is no abstract meaning of responsibility that reveals the intrinsic nature of the concept itself. Cane observes that the language of responsibility “marks a variegated and heterogeneous set of practices and concepts which can only be fully understood by context-determinate analyses.”102 Based on this observa-tion, Cane proposes that “study of actual and contextually determinate responsibility practices can contribute to our understanding of respon-sibility generally.”103 Likewise, Nicola Lacey suggests that the concept of responsibility is inevitably shaped through social practices in the his-torical context, demonstrating this proposition by tracing the shift in the predominant philosophical approach to criminal responsibility in English criminal law from the mid-eighteenth to the late twentieth cen-tury.104 An important implication of her study is that responsibility practices are normative and constructive in their effect as they organize both our practices and our interpretation of the world in distinctive and contingent ways, which is of central relevance to political decisions about the design of social institutions generally.105

The legal nature of the Security Council’s responsibility can thus be ascertained through the examination of its own responsibility practices, which is consistent with the interpretive approach suggested earlier.106 From a theoretical point of view, this will allow an examination of the legal nature of the Security Council’s responsibility to be detached from the development of contemporary philosophical analysis of responsibil-ity, which is grounded in the notion of human personhood, as has emerged from Europe in the philosophy of the Enlightenment. The centrality of human personhood to the concept of responsibility is al-ready rejected in the course of developing the international law of state responsibility, favoring the objective determination of responsibility

102 Cane, see note 67, 25. 103 Ibid., 30. 104 N. Lacey, “Responsibility and Modernity in Criminal Law”, Journal of Po-

litical Philosophy 9 (2001), 249 et seq. 105 Ibid., 253. 106 See note 65 above and accompanying text.


without inquiring into human psychological elements such as motives and intention.107 Scott Veitch considers that different forms of responsi-bility practices are best seen as providing organizational capabilities, fulfilling distinctive and varied regulative visions and requirements set by the relevant social conditions and structures.108 It is hence concei-vable that ascertaining the form of responsibility practices of the Secu-rity Council, particularly since the emergence of the responsibility to protect concept, will also reveal the Security Council’s organizational capabilities in fulfilling the international responsibility to protect within the distinctive regulatory framework of the Charter.

In the following sections, the Security Council’s responsibility prac-tices are examined with a view to ascertaining the legal nature of the Se-curity Council’s prospective, remedial and collective responsibility. A particular focus of this examination is whether and to what extent re-cognition has emerged so that the Security Council must assume the in-ternational responsibility to protect, as part of, or distinct from, its pri-mary responsibility for the maintenance of international peace and se-curity as envisaged in the Charter.

To that end, the following sections will examine the Security Coun-cil’s response to mass atrocity crises since the emergence of the respon-sibility to protect concept. A particular attention is drawn to the mass atrocity crises in the Democratic Republic of the Congo, Myanmar, and Darfur, where the Security Council’s responsibility became a point of controversy during Council debates. These crises, particularly the situa-tion in Myanmar, are subject to different views as to whether they fall within the scope of the responsibility to protect and therefore warrant the Security Council’s response.109 Yet, the purpose of this inquiry is to gauge the nature and meaning of responsibility as understood by states in relation to the Security Council’s authority in dealing with actual or potential mass atrocities.

107 See generally, I. Brownlie, System of the Law of Nations: State Responsibi-

lity Part I, 1983, 38 et seq. 108 S. Veitch, Law and Irresponsibility: On the Legitimation of Human Suffer-

ing, 2007, 39-41. 109 The situations in Zimbabwe, Kenya, and Sri Lanka have also been de-

scribed as concerns falling within the ambit of the responsibility to protect concept, Evans, see note 10, 72-73. However, no discussion about the Secu-rity Council’s responsibility was made during Council debates and there-fore these situations are excluded from inquiry here.


1. The Democratic Republic of the Congo

The armed violence in and around the Democratic Republic of the Congo in the late 1990s stemmed from cross-border conflicts in the Great Lakes region of Africa, which escalated into a humanitarian crisis. Those conflicts were fuelled by several rebel groups, whose genus traced back to the aftermath of the 1994 Rwanda genocide and the col-lapse of the Zairian state.110 The conclusion of the Lusaka Ceasefire Agreement on 10 July 1999, between the Democratic Republic of the Congo and several surrounding countries, sought to end this conflict,111 expressing the request of the parties for the Security Council’s interven-tion.112 Despite its reluctance to intervene,113 the Security Council fi-nally authorized the deployment of MONUC (UN Organization Mis-sion in the Congo) on 30 November 1999,114 and later gave the mission amongst others a mandate to protect civilians.115 The cautious, phased deployment reflected a division of views as to the role of the Security Council, and a confused understanding about who was to bear which responsibility. On the one hand, African countries called for the Secu-rity Council’s engagement referring to the Security Council’s primary responsibility for the maintenance of international peace and security.116 Western countries, on the other hand, emphasized the primary respon-sibility of the parties themselves for taking action to implement the

110 For details of the historical background of the conflict, see, e.g., H.F. Weiss,

“The Democratic Republic of the Congo: A Story of Lost Opportunities to Prevent or Reduce Deadly Conflicts”, in: R.H. Cooper/ J.V. Kohler (eds), Responsibility to Protect: The Global Moral Compact for the 21st Century, 2009, 115 et seq.

111 Doc. S/1999/185/Annex of 23 July 1999. 112 Ibid., para. 11 (a). 113 SCOR 54th Year, 3987th Mtg., Doc S/PV.3987 and S/PV.3987 (Resumption

1) of 19 March 1999. 114 S/RES/1279 (1999) of 30 November 1999, paras 4-6. 115 S/RES/1291 (2000) of 24 February 2000, para. 8. 116 See, e.g., SCOR 54th Year, 3987th Mtg., Doc. S/PV.3987 (Resumption 1) of

19 March 1999, 2-3 (Sudan), 7 (Zambia), 15 (Kenya), 22 (Democratic Re-public of the Congo); SCOR 54th Year, 4083rd Mtg., Doc S/PV.4083 of 16 December 1999, 14 (Namibia), 18 (Gabon); SCOR 55th Year, 4092nd Mtg., Doc. S/PV.4092 of 24 January 2000, 6 (Zambia), 10 (Mozambique); SCOR 55th Year, 4092nd Mtg., Doc. S/PV.4092 (Resumption 1) of 24 January 2000, 2 (South Africa).


ceasefire agreement.117 Here, two different notions of responsibility were intertwined, leaving some delegates confused about the seemingly contradictory positions.118 Although at that stage the responsibility to protect was not yet articulated as a concept, the Secretary-General’s re-ports on Srebrenica and Rwanda in 1999 appear to have influenced this debate.119

The shift in focus from a responsibility for the maintenance of in-ternational peace and security to a responsibility to protect could be found in remarks that described the Security Council as a body acting on behalf of the international community and as having a collective re-sponsibility to address this conflict and the suffering of civilians in the Congo.120 However, MONUC has since then been embroiled in the re-peated failure to protect civilians from large-scale violence,121 prompt-ing the Security Council to re-emphasize the civilian protection man-date,122 albeit without necessarily clarifying later its relationship with

117 See, e.g., SCOR 54th Year, 4083rd Mtg., Doc S/PV.4083 of 16 December

1999, 16 (United Kingdom); SCOR 55th Year, 4092nd Mtg., Doc. S/PV.4092 of 24 January 2000, 4 (United States); SCOR 55th Year, 4092nd Mtg., Doc. S/PV.4092 (Resumption 1) of 24 January 2000, 4 (Belgium); SCOR 55th Year, 4092nd Mtg., Doc. S/PV.4092 (Resumption 2) of 26 Janu-ary 2000, 9 (Russia).

118 See, e.g., SCOR 54th Year, 4083rd Mtg., Doc. S/PV.4083 of 16 December 1999, 15 (Brazil).

119 See, e.g., SCOR 54th Year, 4083rd Mtg., Doc. S/PV.4083 of 16 December 1999, 10 (Canada); SCOR 55th Year, 4092nd Mtg., Doc. S/PV.4092 of 24 January 2000, 21-23 (Rwanda); SCOR 55th Year, 4092nd Mtg., Doc. S/PV.4092 (Resumption 1) of 24 January 2000, 9-12 (Canada).

120 SCOR 55th Year, 4092nd Mtg., Doc. S/PV.4092 of 24 January 2000, 8-9 (President Chiluba of Zambia), 25 (Secretary-General of the Organization of African Unity); SCOR 55th Year, 4092nd Mtg., Doc. S/PV.4092 (Re-sumption 1) of 24 January 2000, 11 (Canada); SCOR 55th Year, 4092nd Mtg., Doc. S/PV.4092 (Resumption 2) of 26 January 2000, 8 (Malaysia).

121 For details, see, e.g., V. Holt/ G. Taylor/ M. Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations: Success, Setbacks and Re-maining Challenges, 2009, 241 et seq.; J. Marks, “The Pitfalls of Action and Inaction: Civilian Protection in MONUC’s Peacekeeping Operations”, Af-rican Security Review 16 (2007), 67 et seq.; K. Månsson, “Use of Force and Civilian Protection: Peace Operations in the Congo”, International Peace-keeping 12 (2005), 503 et seq.

122 S/RES/1565 (2004) of 1 October 2004, paras 4 (b), 6; S/RES/1592 (2005) of 30 March 2005, para. 7; S/RES/1794 (2007) of 21 December 2007, paras 2, 5; S/RES/1856 (2008) of 22 December 2008, paras 2, 3 (a)-(e), 5-6.


the responsibility to protect concept,123 even after the adoption of the 2005 World Summit Outcome.

This raises the question as to how far the Security Council’s respon-sibility to protect extends. One view could be that the Security Council is considered to have fulfilled its responsibility once it takes action, for example, by deploying a peacekeeping mission with the mandate to protect civilians.124 Another view might require the Security Council to ensure that civilians are in fact protected from mass atrocities as part of its responsibility. The absence of reference to the responsibility to pro-tect concept since the deployment of MONUC until today appears to indicate that the former view might be the prevailing understanding among Council members.125

2. Myanmar

Since the military coup d’état in 1962 and 1988 the people of Myanmar have been subjected to widespread human rights violations by the mili-tary junta, particularly against political dissidents and ethnic minori-ties.126 However, it was not until September 2006 that the situation in Burma (renamed as Myanmar by the military junta) became a subject of discussion in the Security Council. By that time, the scale of repression and humanitarian crisis was well documented in reports from various sources

123 E.C. Luck, “Taking Stock and Looking Ahead – Implementing the Re-

sponsibility to Protect”, in: Winkler/ Rød-Larsen/ Mikulaschek, see note 4, 61 et seq. (67).

124 The Security Council also imposed an arms embargo (S/RES/1493 (2003) of 28 July 2003, paras 18, 20-22) and set up a committee to monitor the im-plementation of the sanctions measures (S/RES/1533 (2004) of 12 March 2004), which has also been relevant to the protection of civilians.

125 S/RES/1925 (2010) of 28 May 2010, listing the civilian protection mandate as the first priority at para. 12 (a).

126 For details of the conflicts in Myanmar, see, e.g., A. South, Ethnic Politics in Burma: States of Conflict, 2008; M. Smith, State of Strife: The Dynamics of Ethnic Conflict in Burma, 2007.


sources.127 Even then, there was significant disagreement over the inclu-sion of the situation in Myanmar on the Security Council’s agenda.128

The first argument that caused disagreement was that the issue in Myanmar was the internal affair of the state and that it did not consti-tute a threat to the peace that would have warranted Security Council’s action. China and the Non-Aligned Movement were particularly vocal about this point of threshold, alleging that large-scale human rights vio-lations and social issues such as the trafficking of people and narcotics were not sufficient to constitute a threat to the peace.129 These remarks were made despite the fact that transnational organized crimes were along with terrorism and weapons of mass destruction recognized as a global security threat in the Secretary-General’s High-Level Panel Re-port.130 Interestingly, the threshold issue was debated by reference to the traditional standard for Security Council action – a threat to the peace – rather than to the threshold for shifting the responsibility to protect from a sovereign state to the international community. Refer-ence was hardly made to the willingness or ability of the military re-gime to protect its population in the context of whether the Security Council should assume responsibility over the situation.131

The second and more fundamental point of disagreement among Council members concerned the boundaries of the Security Council’s competence. Qatar, South Africa, and the Democratic Republic of the Congo expressed the view that questions of human rights would not fit

127 See e.g., Human Rights Watch, “‘They Came and Destroyed Our Village

Again’: The Plight of Internally Displaced Persons in Karen State”, 9 June 2005, <http://www.hrw.org/sites/default/files/reports/burma0605.pdf>.

128 The situation in Myanmar came to a spotlight more widely in 2008 when the government refused to accept foreign aid after the devastation caused by Cyclone Nargis. This decision led to intense debate regarding the po-tential application of the responsibility to protect concept in order to jus-tify military intervention for the purpose of delivering humanitarian aid. However, the issue was not included on the Security Council’s agenda and therefore is not dealt with here. For a detailed analysis of the issue, see, e.g., R. Barber, “The Responsibility to Protect the Survivors of Natural Disas-ter: Cyclone Nargis, a Case Study”, Journal of Conflict & Security Law 14 (2009), 3 et seq.

129 SCOR 61st Year, 5526th Mtg., Doc. S/PV.5526 of 15 September 2006, 2 (China); SCOR 62nd Year, 5619th Mtg., Doc. S/PV.5619 of 12 January 2007, 4 (Indonesia), 8 (Congo).

130 High-Level Panel Report, see note 9, 23. 131 Cf. SCOR 62nd Year, 5753rd Mtg., Doc. S/PV.5753 of 5 October 2007, 10.


with the Charter mandate conferred upon the Security Council, but would be best left to the Human Rights Council.132 The United States was not explicit on this question of competence, though remarked rather clearly that the situation “does not pose a risk to peace and secu-rity beyond its borders.”133 On the contrary, the United Kingdom re-garded the situation as representing a threat to regional peace and secu-rity and “to the security of the Burmese people” and hence falling within the responsibilities of the Security Council.134 Here, the refer-ence to responsibility appears to have been made in the sense of a com-petence and capacity responsibility, with the emphasis that the Security Council’s responsibility would not be exclusive to but rather comple-mentary and supportive of other UN organs. Ghana and Panama also expressed a holistic view concerning the Security Council’s responsibil-ity as part of the international community’s efforts to protect the popu-lation of Myanmar from mass atrocities.135 This disagreement arguably indicates increasingly diverse views about the scope of the Security Council’s responsibility – the narrowest view being based on the strict reading of the Charter mandate, whereas the wider ones are more or less influenced by the incorporation of the responsibility to protect concept into the Security Council’s responsibility under the Charter.

3. Darfur

The conflict in Darfur, in the west of Sudan, stems from ethnic disputes over resources, typically between the region’s tribal farmers and Arab herders.136 The gradual expansion of the Sahara desert into areas previ-ously used by nomads aggravated the situation. The conflict escalated when the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM) forces began violently attacking government military installations in early 2003, aiming to compel the government to address 132 SCOR 61st Year, 5526th Mtg., Doc. S/PV.5526 of 15 September 2006, 3

(Qatar); SCOR 62nd Year, 5619th Mtg., Doc. S/PV.5619 of 12 January 2007, 3 (South Africa), 5-6 (Qatar), 8 (Congo).

133 SCOR 62nd Year, 5619th Mtg., Doc. S/PV.5619 of 12 January 2007, 6. 134 Ibid., 7. 135 Ibid., 8 (Ghana), 9 (Panama). 136 For a general overview of the violent history in Darfur, see, G. Prunier,

Darfur: A 21st Century Genocide, 3rd edition, 2008; J. Flint/ A. de Waal, Darfur: A Short History of a Long War, 2005; D.H. Johnson, The Root Causes of Sudan’s Civil Wars, 2003.


decades of political marginalization and underdevelopment of non-Arabs in Darfur. The government responded by not only deploying its armed forces but also by arming and supporting militias known as Jan-jaweed, which engaged in atrocious violence against citizens suspected of supporting the rebels.137

The first Security Council resolution in relation to Darfur was adopted on 11 June 2004. Council members saw the crisis in Sudan at that time from a more traditional dispute settlement perspective, urging the parties involved in the conflict to reach a peaceful settlement of the conflict.138 A notable exception is the remark made by the German delegate who explicitly linked a peaceful settlement of the conflict with “an end to the sweeping and widespread human rights violations in the conflict regions in the Sudan.”139 In line with this concern, para. 6 of the resolution called upon the parties involved “to use their influence to bring an immediate halt to the fighting in the Darfur region ... ”140

The failure of the Sudanese government to disarm the Janjaweed and protect the population of Darfur led the Security Council to adopt S/RES/1556 on 30 July 2004. Adopted with mandatory terms under Chapter VII of the Charter, the resolution imposed an arms embargo on the region and gave the Sudanese government 30 days to disarm the Janjaweed, whilst expressing its intention to consider further action un-der Article 41 of the Charter in the event of non-compliance.141 While recognizing that the Sudanese government had the primary responsibil-ity to protect its population, many states stressed the need for the inter-

137 For details of the event, see, e.g., G. Austin/ B. Koppelman, Darfur and

Genocide: Mechanisms for Rapid Response, An End to Impunity, 2004. The International Commission of Inquiry on Darfur established by S/RES/1564 (2004) of 18 September 2004 found that crimes against human-ity and war crimes had been committed in Darfur, but made a negative finding about genocide: Report of the International Commission of In-quiry on Darfur to the United Nations Secretary-General, 25 January 2005, 131-132. In contrast, the US Senate and House of Representatives passed a resolution on 22 July 2004 declaring that the mass atrocities in Sudan con-stituted genocide: US Congress Resolution 467, 108th Cong., 2nd Sess.

138 S/RES/1547 (2004) of 11 June 2004, paras 1-5. See also SCOR 59th Year, 4988th Mtg., Doc. S/PV.4988 of 11 June 2004, 3 (Algeria), 4 (Pakistan). This response is not surprising as the resolution was adopted prior to the 2005 World Summit.

139 SCOR 59th Year, 4988th Mtg., Doc. S/PV.4988 of 11 June 2004, 2. 140 S/RES/1547, see note 138, para. 6. 141 S/RES/1556 (20004) of 30 July 2004, paras 6-7.


national community’s intervention.142 France, for example, observed that “[g]iven the nature of this crisis, the international community can-not remain on the sidelines.”143 The Philippines more categorically ex-plained the context in which Resolution 1556 was adopted as follows:

“Sovereignty also entails the responsibility of a State to protect its people. If it is unable or unwilling to do so, the international com-munity has the responsibility to help that State achieve such capacity and such will and, in extreme necessity, to assume such responsibil-ity itself.”144 This discussion and the adoption of S/RES/1556 suggest that Coun-

cil members seem to have adopted an approach different from the one expressed previously, framing their statements with the language of the responsibility to protect.

Some members variably expressed their understanding of the role and responsibility of the Security Council, in adopting Resolution 1556 and the subsequent resolutions on Sudan.145 Romania and the Philip-pines, for example, spoke of the legal responsibility of the Security Council to respond to mass atrocities on behalf of the international community.146 The United Kingdom clearly distinguished the role of the Security Council from that of the international community regard-ing the adoption of Resolution 1556 as the Security Council’s own commitment to ensure the Sudanese government fulfilled its duty to protect its own citizens.147 Algeria considered the role of the Security Council, in assuming its responsibility under the Charter, to rather complement and support the efforts of the African Union, arguing that 142 With the exception of China, which abstained from the vote, arguing that

mandatory measures would not help in resolving the situation in Darfur and might even further complicate it. SCOR 59th Year, 5015th Mtg., Doc. S/PV.5015 of 30 July 2004, 3.

143 Ibid., 9. 144 Ibid., 10-11. 145 See, A.J. Bellamy/ P.D. Williams, “The UN Security Council and the Ques-

tion of Humanitarian Intervention in Darfur”, Journal of Military Ethics 5 (2006), 144 et seq. (149-154).

146 SCOR 59th Year, 5040th Mtg., Doc. S/PV.5040 of 18 September 2004, 12. 147 SCOR 59th Year, 5015th Mtg., Doc. S/PV.5015 of 30 July 2004, 5. Williams

and Bellamy explain western states’ reluctance to press for intervention as being politically motivated with consideration of strategic implications of intervention for their own national security. P.D. Williams/ A.J. Bellamy, “The Responsibility to Protect and the Crisis in Darfur”, Security Dialogue 36 (2005), 27 et seq.


Africans have a special duty and a primary responsibility when there is a conflict in Africa.148

S/RES/1590 of 24 March 2005 established the UN Mission in Sudan (UNMIS).149 However, UNMIS was deployed to the south of the country in support of the Comprehensive Peace Agreement. The situa-tion in Darfur was still left only with a small-sized African Union Mis-sion in Sudan (AMIS), deployed by the African Union, which by late 2005 was too “stretched to effectively implement its mandate.”150 Al-though the African Union subsequently increased the size of the con-tingent,151 the intensified violence led the African Union to request the deployment of a UN peacekeeping force, even after the conclusion of the Darfur Peace Agreement in May 2006 between the Sudanese gov-ernment and one of the main rebel groups.

When urged to intervene in Darfur, the Security Council’s responsi-bility to protect and what it entails was tested for the first time since the 2005 World Summit and the subsequent affirmation of the responsibil-ity to protect by the Security Council in the context of civilian protec-tion.152 In adopting S/RES/1706 of 31 August 2006 to expand the de-ployment of UNMIS to Darfur,153 the United Kingdom delegate re-marked that the adoption of this resolution showed the Security Coun-cil’s readiness to assume its responsibilities towards the people of Dar-fur, whilst emphasizing that UN peacekeepers were to act in support of the Sudanese government.154 Likewise, France, Argentina, and Den-mark spoke of the Security Council’s collective responsibility to protect or act,155 whereas Greece and Slovakia framed it only as a moral duty.156

148 SCOR 59th Year, 5015th Mtg., Doc. S/PV.5015 of 30 July 2004, 5-6. See

also, J. Allain, “The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq and the Emergence of the African Union”, Max Planck UNYB 8 (2004), 237 et seq.

149 S/RES/1590 (2005) of 24 March 2005. 150 Communique of the 28th Mtg. of the Peace and Security Council, AU Doc

PSC/PR/Comm. (XXVIII), 28 April 2005, para. 3. 151 For an assessment of the African Union’s contribution in Darfur, see P.D.

Williams, “Military Responses to Mass Killing: The African Union Mission in Sudan”, International Peacekeeping 13 (2006), 168 et seq.

152 S/RES/1674, see note 3. 153 S/RES/1706 (2006) of 31 August 2006. 154 SCOR 61st Year, 5519th Mtg., Doc S/PV.5519 of 31 August 2006, 3-4. 155 Ibid., 7 (France), 9 (Argentina), and 10 (Denmark). 156 Ibid., 8.


Victoria Holt and Glyn Taylor observe that “[t]his general sentiment of responsibility was understood as the reason for the rapid adoption of resolution 1706.”157 It is interesting to note that the reference to Chap-ter VII was made in respect of the protection of civilians by authorizing peacekeepers to use all necessary means, in the areas of deployment of its forces and as it deems within its capabilities “to protect civilians un-der threat of physical violence” and “in order to support early and ef-fective implementation of the Peace Agreement, to prevent attacks and threats against civilians.”158

The Sudanese government refused to give consent to and cooperate with the deployment of UNMIS in Darfur, alleging insufficient consul-tation and attention to its peace efforts prior to the adoption of the resolution.159 There was a general agreement that no peacekeeping op-eration should be imposed without the consent of the Sudanese gov-ernment,160 whilst some states reiterated the international community’s responsibility to protect populations from mass atrocities.161 The Suda-nese government’s suspicions and concerns regarding the deployment of a UN peacekeeping mission in Darfur were not dispelled until Sudan finally agreed to a UN/AU hybrid operation in Darfur (UNAMID) in 2007.162 UNAMID was mandated, inter alia, to support early and effec-tive implementation of the Peace Agreement, prevent the disruption of its implementation and armed attacks, and protect civilians without prejudice to the responsibility of the Sudanese government all under Chapter VII of the Charter.163 Since the decision to deploy UNAMID, little reference has been made to the Security Council’s responsibility to protect. This was the case despite the fact that the deployment of forces at the required level was significantly hampered because of insufficient provision of key resources by the international community, inadequate preparation on the part of the United Nations in building up the capa-city in the field, and the obstruction on the part of the Sudanese gov-

157 Holt/ Taylor/ Kelly, see note 121, 342. 158 S/RES/1706, see note 153, para. 12 (a). 159 SCOR 61st Year, 5520th Mtg., Doc. S/PV.5520 of 11 September 2006, 4-6. 160 Ibid., 10 (Congo), 12 (China), 13 (Tanzania and Russian Federation), 18

(Japan). 161 Ibid., 9 (United Kingdom), 14 (Slovakia), 15 (Argentina), 16-17 (France), 19

(Peru). 162 S/RES/1769 (2007) of 31 July 2007. 163 Ibid., para. 15 (a) (ii).


ernment.164 The focus among Council members appears to have shifted back to more traditional peacekeeping,165 whilst the situation in Darfur since 1 July 2002 was referred to the Prosecutor of the ICC.166

VI. Evolving Conception of the Security Council’s Responsibility

The analysis above seems to illustrate a gradual expansion amongst Council members of their conception of the Security Council’s respon-sibility. The Security Council’s responsibility to address physical vio-lence against civilians during an armed conflict in the early 2000s was referred to, by and large, in the traditional context of dispute settlement and the maintenance of international peace and security.167 Since 2004, however, Council members seem to have become more vocal about the Security Council’s responsibility to protect people and respond to mass atrocities on behalf of the international community.168 It seems as if this expanded conception of the Security Council’s responsibility has been influenced by the responsibility to protect concept and its development. Yet, the question arises as to what extent Council members, or UN Member States in general, have embraced the expansion of its responsi-bility beyond that for the maintenance of international peace and secu-rity, as a matter of its legal authority and power. In other words, has the Security Council fostered sufficient responsibility practices to re-characterize its institutional competence, role, and legal authority to ac-commodate the responsibility to protect as part of its institutional ac-tivities? The case studies above seem to illustrate three impediments to the establishment of sufficient responsibility practices required to dem-onstrate the Security Council’s legal responsibility to protect.

164 See Report of the Secretary-General on the Deployment of the African

Union-United Nations Hybrid Operation in Darfur, Doc. S/2008/400 of 17 June 2008, 9-10; Report of the Secretary-General on the Sudan, Doc. S/2007/653 of 5 November 2007, para. 32.

165 See, e.g., remarks made by the United Kingdom delegate: SCOR 62nd Year, 5784th Mtg., Doc. S/PV.5784 of 27 November 2007, 14; SCOR 63rd Year, 5922nd Mtg., Doc. S/PV.5922 of 24 June 2008, 10.

166 S/RES/1593 (2005) of 31 March 2005. 167 See notes 116, 138 above and accompanying text. 168 See notes 134, 143-148, 154-156 above and accompanying text.


First, there are competing threshold issues as the basis of the Secu-rity Council’s action. As outlined above the traditional understanding is that the Security Council cannot take action unless it determines that the situation constitutes a threat to the peace, a breach of the peace, or an act of aggression within the meaning of Article 39 of the Charter. The Security Council has an inherent power to make an initial determi-nation of its own institutional competence (la compétence de la compé-tence), which is presumed to have prima facie validity.169 The Security Council is prepared to take collective action in accordance with the re-sponsibility to protect concept when peaceful means are inadequate and national authorities are manifestly failing to protect their population from mass atrocities.170 Still, it is not clear whether the Security Council is expected to take action if it finds that national authorities are mani-festly failing to protect their population from mass atrocities even without making a finding of a threat to the peace. Nor is it certain whether the Security Council has the competence to determine that na-tional authorities are manifestly failing to protect their population from mass atrocities. One may argue that a situation could be easily recog-nized as a threat to the peace when national authorities are manifestly failing to protect their population from mass atrocities. The former Sec-retary-General Kofi Annan implicates this presumption by posing the question,

“as to genocide, ethnic cleansing and other such crimes against hu-manity, are they not also threats to international peace and security, against which humanity should be able to look to the Security Council for protection?”171 It is true that when many states stressed the need for the interna-

tional community’s intervention in Darfur in 2004, the Security Council adopted a resolution recognizing the situation as a threat to the peace. Yet, it was not only the humanitarian crisis and violence against civil-ians but also the cross-border effects of the armed conflict that led to

169 Certain Expenses of the United Nations, ICJ Reports 1962, 151 et seq.

(168); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, 16 et seq. (22, para. 20).

170 A/RES/60/1, see note 2. 171 In Larger Freedom, see note 9, para. 125. See also, D. Kuwali, “Old

Crimes, New Paradigms: Preventing Mass Atrocity Crimes”, in: R.I. Rot-berg (ed.), Mass Atrocity Crimes: Preventing Future Outrages, 2010, 25 et seq. (26).


this determination.172 Additionally, the debate among Council members over the issue in Myanmar solely concerned whether the situation con-stituted a threat to the peace without any consideration of the willing-ness or ability of the military regime to protect its population.173

Shifting the threshold basis for the Security Council’s collective ac-tion from a threat to the peace to the unwillingness or inability of na-tional authorities to protect their population involves an inevitable dif-ficulty in the determination of whether national authorities are mani-festly failing to protect their population. Does the Security Council have the authority to declare that a certain state is manifestly failing to protect its population as the basis for collective action? The basic prem-ise of the concept, that national authorities have the primary responsi-bility to protect their population and only when national authorities are manifestly failing to do so can the responsibility shift to the interna-tional community, appears to implicate the notion of complementarity. Unlike the principle of complementarity embedded in the Rome Statute of the ICC,174 however, the legal authority to determine the shift of re-sponsibility is not clearly vested with the Security Council. It is a highly sensitive issue to declare that national authorities are manifestly failing to protect their citizens, particularly when there is a functioning government in power.

Second, as ex ante remedial responsibility, it is difficult to measure the extent to which the Security Council has fulfilled its responsibility to protect. Is the Security Council required only to take action as it deems necessary and plausible within its capabilities and resources to protect populations from mass atrocities? Or is it considered to have failed if mass atrocity crimes are in fact committed? The failed attempt to set out guidelines for a military intervention by the Security Council, due to the strong refusal of China, Russia, and the United States during the 2005 World Summit,175 clearly indicates resistance to the idea of clear standards of conduct by reference to which the Security Council’s

172 S/RES/1556, see note 141. 173 See notes 129-131 and accompanying text. 174 Rome Statute of the International Criminal Court, UNTS Vol. 2187 No.

38544. See generally, M.M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice, 2008.

175 For details, see, Bellamy, see note 10, 83-85; N.J. Wheeler, “A Victory for Common Humanity? The Responsibility to Protect after the 2005 World Summit”, Journal of International Law and International Relations 2 (2005), 95 et seq. (99-101).


action and inaction to fulfill its responsibility to protect can be assessed. In the absence of clear standards of conduct, it is a matter of policy de-cision, not susceptible to legal assessment, as to what measure is neces-sary and effective to avert mass atrocities.

Third, it remains unresolved whether the Security Council’s failure to fulfill its responsibility to protect may entail legal consequences and, if it does, what those legal consequences might be. Conspicuously, the 2005 World Summit Outcome is silent on what should happen if the Se-curity Council is unable or unwilling to implement the responsibility to protect. While the international community, through the United Na-tions, maintains its position that it is prepared to take action on a case by case basis,176 no legal consequence would arise from arbitrary deci-sion-making. However, should sufficient responsibility practices be fos-tered, they may give rise to a legitimate expectation for the consistent implementation of the Security Council’s responsibility to protect. Thereafter, a failure to take action would have negative impacts on the legitimacy of its decisions.177

In a much wider context, any action or inaction, success or failure, by the international community will have an impact on the normative force and interpretation of the basic principles of international law such as the non-use of armed force and the prohibition of genocide.178 In the absence of an instruction from an international legal authority, those competing norms and principles could pull in potentially conflicting di-rections – for example, an unlawful use of force required to prevent genocide. A lack of attention to and understanding of this normative link would be fatal to the discussion of the responsibility to protect concept, as illustrated by the debate on humanitarian intervention, which underlines the indeterminacy of competing basic principles and the extent to which the international rule of law “constitutes a highly

176 A/RES/60/1, see note 2. 177 J. Quigley, “The United Nations Security Council: Promethean Protector

or Helpless Hostage?”, Tex. Int’l L. J. 35 (2000), 129 et seq. (167-170); Caron, see note 62, 559-561.

178 The idea of connecting the legal nature of responsibility to the normative force and interpretation of international law principles is more fully elabo-rated in Nasu, see note 29, 229-233; H. Nasu, “Responsibility to React? Lessons from the Security Council’s Response to the Southern Lebanon Crisis of 2006”, International Peacekeeping 14 (2007), 339 et seq. (344-346).


manipulable regime that lends itself to politicization.”179 Such a norma-tive link between the international legal authority to apply and interpret competing principles, and the normative force of those principles, un-derpins the significance of understanding the international community’s responsibility to protect as a legal concept and the potential role of the Security Council.

Still, there is a growing level of responsibility practices which en-compasses legal responsibility assumed by the Security Council acting in the capacity of an agent of the international community. The Security Council’s swift response to the atrocities against the civilian population in Libya of 26 February 2011, and the subsequent resolution of 17 March 2011 to establish and enforce a no-fly zone to protect civilians, are the latest testimony to the evolving process of fostering responsibil-ity practices.180 It remains to be seen whether the events in Libya in March 2011 become a critical step towards the legal conception of the Security Council’s responsibility to protect.181 The scope of the respon-sibility to protect is currently limited due to the fact that even though the Security Council relies pragmatically upon its own institutional standards for collective action under the Charter, its role in the interna-tional community to implement the responsibility to protect has been recognized separately from the internal rules and principles governing the UN structure. Moreover, the responsibility to protect may well compel the Security Council to take action and not to remain silent in the face of potential or actual mass atrocities, yet does not go further to provide what the Security Council is expected to do in order to fulfill its responsibility to protect. In light of all those factors, at the present stage, the Security Council can hardly be seen as having fostered suffi-cient responsibility practices to re-characterize its institutional compe-tence, role, and authority to accommodate the responsibility to protect as part of its institutional activities.

179 R.G. Teitel, “Humanity’s Law: Rule of Law for the New Global Politics”,

Cornell Int’l L. J. 35 (2002), 355 et seq. (387). 180 S/RES/1970 (2011) of 26 February 2011, preamble para. 9 recalling “the

Libyan authorities’ responsibility to protect its population”; S/RES/1973 (2011) of 17 March 2011, preamble para. 4 and paras 4 and 6.

181 See in this respect the language used throughout the Council debate SCOR 66th Year, 6491st Mtg., Doc. S/PV.6491 of 26 February 2011, 3 (United States), 5 (France), 7 (Brazil); SCOR 66th Year, 6498th Mtg., Doc. S/PV.6498 of 17 March 2011, 3 (Lebanon citing the resolution of the League of Arab States of 12 March 2011), 4 (United Kingdom), 7 (Colom-bia), 10 (South Africa).


VII. Conclusion

The responsibility to protect is a multifaceted and still evolving con-cept. The concept does not evolve in a vacuum without having influ-ence on the operation and development of international law, politics, and institutional practice. The Security Council is no exception, since in fact it has been portrayed as the “right authority” to exercise collective enforcement powers to implement the international community’s re-sponsibility to protect. This is despite the fact that it is a creation of post-World War II politics for the purpose of the maintenance of inter-national peace and security.

As discussed in Part III., the Security Council’s responsibility can be variably understood, and its normative significance may only be under-stood in the context of institutional practice. The Security Council’s re-sponsibility practices since the emergence of the responsibility to pro-tect concept evidence a limited scope of responsibility to be assumed by the Security Council, as an agent of the international community. How-ever, Council members have not clearly formed a shared view to articu-late the Security Council’s organizational capability to exercise the in-ternational responsibility to protect, nor have they sufficiently devel-oped a shared legitimate expectation that would guide the Security Council as to how it is expected to fulfill the responsibility to protect. The conception of the Security Council’s responsibility to protect is still incubating in the UN’s institutional framework.

The legal conception of the international community’s responsibility to protect is characterized by the prospective, remedial, and collective nature of responsibility. Because of this distinctive nature, the interna-tional community’s responsibility to protect in a legal sense should not be considered within the traditional framework of a legal liability re-gime under international law. It should rather be understood in terms of its impacts on the normative force and interpretation of competing in-ternational law principles and rules. Such an understanding of responsi-bility opens up the scope in which a legal conception of the Security Council’s responsibility to protect can be fostered through its own re-sponsibility practices. In light of the distinct conceptions of responsibil-ity that characterize the responsibility to protect, the following three points would need to be addressed to that end:

(1) Emphasis should be placed on the prospective nature of this re-sponsibility and on the creation of institutional mechanisms that ensure the Security Council conforms to the expectation held by Member States to take action consistently to protect populations from mass


atrocities. Despite the difficulty of illustrating any clear standards of conduct, the establishment of an independent monitoring body such as an ombudsman, for example, could strengthen public scrutiny and guide more responsible action by the Security Council through foster-ing inter-institutional dialogues.182 The problem of unfulfilled expecta-tions shared by UN Member States at large is inextricably linked to the absence of mechanisms for holding the Security Council accountable for its failure to play the remedial role.183

(2) The Security Council’s organizational capabilities to implement remedial responsibility should be realistically assessed and mobilized. This would mean that the scope of the Security Council’s protection ac-tivities should be restrictively envisaged.

(3) At the same time, the international community’s responsibility to protect should be institutionalized through greater cooperation and clearer coordination among different organs of the United Nations, e.g. a greater dialogue between the Security Council and ECOSOC to fa-cilitate early response to human rights violations,184 as well as a closer cooperation with regional organizations, as envisaged in the 2005 World Summit Outcome.185 Further, the creation of a new UN subsidiary body that specializes in protecting civilians during armed conflict, could be pursued without requiring a reform of the Security Council.186 The building of organizational capabilities among United Nations or-gans and international or regional institutions in a coordinated and co-operative manner will ensure that the international community imple-ments its responsibility to protect in its entirety.

182 For detail of the author’s argument, see H. Nasu, “Who Guards the Guard-

ian?: Towards Regulation of the UN Security Council’s Chapter VII Pow-ers through Dialogue”, in: K. Rubenstein/ J. Farrall (eds), Sanctions, Ac-countability and Governance in a Globalised World, 2009, 123 et seq.

183 Welsh/ Banda, see note 79, 219. 184 C. Breen, “The Necessity of a Role for the ECOSOC in the Maintenance

of International Peace and Security”, Journal of Conflict and Security Law 12 (2007), 261 et seq.

185 A/RES/60/1, see note 2, para. 139. 186 H. Nasu, “Operationalizing the ‘Responsibility to Protect’ and Conflict

Prevention: Dilemmas of Civilian Protection in Armed Conflict”, Journal of Conflict & Security Law 14 (2009), 209 et seq. (238-241). Cf. M. ul-Haq, “Global Governance for Human Security”, in: M. Tehranian (ed.), Worlds Apart: Human Security and Global Governance, 1999, 79 et seq. (88-94).

Human Rights Principles – Can They be Applied to Improve the Realization of Social Human Rights?

Hans M. Haugen



Preface I. The Term “Principles” in International Law and Legal Philosophy II. The Term “Principles” as Applied in National Constitutions III. Principles Applied in Corporate Conduct Guidelines IV. Specifying the Human Rights Principles V. Reviewing the Other Categorizations VI. State Conduct VII. Corporate Conduct VIII. Conclusion: Are there Inherent Dangers in Focusing on Human Rights

Principles?

Haugen, Human Rights Principles 421

Preface

Is increased reference to the term “principles” in the context of human rights a positive development or a threat to the effective enjoyment of human rights? In international environmental law, environmental prin-ciples have long had a central position.1 In international human rights law, on the other hand, there has been much less emphasis on such principles. Human rights principles have been applied so far primarily in the context of economic and social human rights,2 and have been found to represent a “constitutional dynamic”.3 This article though seeks to identify the underlying idea and purpose of human rights prin-ciples and aims, particularly, to identify whether human rights princi-ples can be a way to strengthen social human rights. Social human rights include the right to food, housing, water, and health care, as well as the protection of the family, while economic human rights include the right to property, work, favorable working conditions, and social security for those not able to work.4 A particular emphasis will be given to the right to food and the right to water, as these provide a most inter-esting context for analyzing public and corporate conduct relating to the regulation of and use of scarce resources. In addition, the article will seek to identify whether the stronger emphasis on human rights princi-ples – evidenced across the United Nations and intergovernmental or- 1 For a comprehensive analysis of environmental principles, see N. de Sade-

leer, Environmental Principles: From Political Slogans to Legal Rules, 2002. 2 E. Wiles, “Aspirational Principles or Enforceable Rights? The Future for

Socio-Economic Rights in National Law”, American University Interna-tional Law Review 22 (2006), 35 et seq., finding that socio-economic hu-man rights are adequately enforceable given the existence of well-functioning institutions, improved methodologies for courts’ analysis, im-proved access to justice and improved legal and administrative systems of protection.

3 G. van Bueren, “Including the Excluded: The Case for an Economic, Social and Cultural Human Rights Act”, Public Law 2002, 456 et seq. (457). For an analysis by the present author of human rights principles as applied to health care ethics, see H.M. Haugen, “Inclusive and Relevant Language: the Use of the Terms Autonomy, Dignity and Vulnerability in Different Con-texts”, Medicine, Health Care and Philosophy 13 (2010), 103 et seq.

4 A. Eide, “Economic, Social and Cultural Rights as Human Rights”, in: A. Eide/C. Krause/A. Rosas (eds), Economic, Social and Cultural Rights: A Textbook, 2nd edition 2001, 17-18.


ganizations – will have a positive impact on public and corporate policy. The same considerations could be applied to non-governmental organi-zations (NGOs),5 but the article will limit itself to state and corporate actors. The reason why corporate actors are relevant in this respect is because of the increased emphasis on their human rights responsibility.6 A central premise for the article is that the most important means for realizing human rights is the daily conduct of appropriate public poli-cies. This conduct is based on legislation which seeks to protect the most vulnerable and gives adequate procedural guarantees. The article will start with an overall clarification of the term “princi-ples” as it applies in the context of international law and legal philoso-phy, in some national constitutions and in guidelines on corporate con-duct. Second, the human rights principles will be presented, followed by a review of the most relevant categorizations made in treaties, reso-lutions and documents. Then, there will be an analysis of how these principles are to be applied in directing state and corporate conduct, re-

5 K. Fretheim, Rights and Riches: Exploring the Moral Discourse of Norwe-

gian Development Aid, 2008, finds that, based on interviews with employ-ees in three Norwegian NGOs and the Ministry of Foreign Affairs (MFA), human rights rhetoric is central in the strategy documents of these organi-zations, but the employees working in the field offices are unsure about how to interpret and apply human rights in their operational work. As a way to remedy this pattern – which surely does not only apply to Norway – the International Council on Human Rights Policy has launched a Forum on Human Rights Principles and NGO Accountability <www.ichrp.org/ en/forum>.

6 See UN Global Compact Principles 1 and 2 (Businesses should support and respect the protection of internationally proclaimed human rights; and should make sure that they are not complicit in human rights abuses. Fur-ther the “Protect, Respect and Remedy” Framework, originally outlined in Doc. A/HRC/8/5 of 7 April 2008 by the Special Representative of the United Nations Secretary-General on Human Rights and Transnational Corporations and other Business Enterprises, John Ruggie, and endorsed by the Human Rights Council in Doc. A/HRC/RES/8/7 of 18 June 2008. See also the 2000 version of the OECD Guidelines for Multinational En-terprises, where Guideline II. 2 reads: “Respect the human rights of those affected by their activities consistent with the host government’s interna-tional obligations and commitments”. In accordance with the Commen-tary, para. 2, the Guidelines apply “particularly concerning the interna-tional operations of these enterprises”, hence having an explicit extra-territorial dimension.


spectively. As this article seeks to explore a relatively new field of re-search, it is hoped that it will inspire more in-depth studies.

I. The Term “Principles” in International Law and Legal Philosophy

When analyzing “principles” within the framework of international law, the standard reference is Article 38 para. 1 lit. (c) of the Statute of the ICJ. This paragraph defines “the general principles of law recog-nized by civilized nations” among the sources of law that the ICJ should apply in order to decide disputes submitted to it. The “general principles of law” “enable[s] rules of law to exist which can fill gaps or weaknesses in the law …”7 “General principles of law” are recognized as a formal source of international law, relating to the interpretation of treaties by courts or other judicial bodies.

“Principles” can also have another function, which can be found in article 31 para. 3 lit. (c) of the Vienna Convention on the Law of Trea-ties. According to this, together with the context, “any relevant rules of international law applicable in the relations between the parties” have to be taken into account. The scope of this provision is still disputed.8 What is clear, however, is that the application of a treaty is to be gov-erned by the rules of international law in force at the time when the treaty is applied.9 “Principles” can be a part of the (evolving) rules of

7 R. Jennings/ A. Watts, Oppenheim’s International Law, 1992, 9th edition,

38. See also A. Cassese, International Criminal Law, 2003, 28. 8 E.g. the WTO Appellate Body has stated that the term “the parties” must

be understood as the “WTO Members”, and not only the parties to the dispute, see WTO, European Communities – Measures Affecting the Ap-proval and Marketing of Biotech Products, Reports of the Panel Doc. WT/DS291/R, Doc. WT/DS292/R, Doc. WT/DS293/R of 29 September 2006, para. 7.68; this position has been criticized by B. McGrady, “Frag-mentation of International Law or ‘Systemic Integration’ of Treaty Re-gimes: EC – Biotech Products and the Proper Interpretation of Article 31 (3) (c) of the Vienna Convention on the Law of Treaties”, JWT 42 (2008), 589 et seq.

9 Third Report on the Law of Treaties, in: Yearbook of the ILC 1964, Vol. II, 8 et seq. (article 56, paras 1 et seq.). The full wording of the paragraph is: “1. A treaty is to be interpreted in the light of the law in force at the time when the treaty was drawn up. 2. Subject to paragraph 1, the application of


international law. This is specified by de Sadeleer stating that, “If a rule consists in implementing a principle, the court may go back to that principle to shed new light on the merits of the case; if a rule takes the form of a derogation of a principle, the court should interpret it restric-tively.”10

Robert Alexy distinguishes between rules and principles11 by ex-plaining that “[r]ules are norms that, given the satisfaction of specific conditions, definitively command, forbid, permit, or empower. Thus they can be characterized as ‘definitive commands’”, while principles “are norms commanding that something must be realized to the highest degree that is actually and legally possible.”12 Another way of explain-ing the distinction is that one can specify the boundaries of rules, out-side which they do not apply, while one cannot specify the boundaries of principles. In a criticism of Alexy’s principle theory, it is nevertheless acknowledged that Alexy’s theory contributes to build a more compre-hensive theory of legal argumentation.13 The observation that principles can act as optimizing norms seems consistent with de Sadeleer, who finds that by emphasizing principles, the underlying values and the spirit of the law will be more central.14 On the other hand, he empha-sizes that courts only have recourse to principles when they need to make one interpretation prevail over another, that principles are “al-ways used in tandem with more precise rules ...”15 Hence, an increased emphasis on principles will not necessarily create legal uncertainty.

a treaty shall be governed by the rules of international law in force at the time when the treaty is applied.”

10 de Sadeleer, see note 1, 237. 11 The distinction between rules and principles was originally outlined by

Dworkin; R. Dworkin, Taking Rights Seriously, 1977; R. Dworkin, A Mat-ter of Principle, 1986.

12 R. Alexy, “Legal Reasoning and Rational Discourse”, Ratio Juris 5 (1992), 143 et seq. (145). He refers to the latter as “commands to optimalize”. See also R. Alexy, “Constitutional Rights, Balancing, and Rationality”, Ratio Juris 16 (2003), 131 et seq.; R. Alexy, A Theory of Constitutional Rights, 2002, and R. Alexy, “On the Structure of Legal Principles”, Ratio Juris 13 (2000), 294 et seq.

13 R. Poscher, “The Principle Theory: How Many Theories and What is Their Merit?”, in: M. Klatt (ed.), Institutionalizing Reason. Perspectives on the Legal Philosophy of Robert Alexy, 2011.

14 de Sadeleer, see note 1, 237. 15 Ibid., 274.


This article will analyze principles in a wider setting, by seeking to demonstrate that principles can also be included in the context of ensur-ing better compliance with treaties by public or corporate actors. The term “directing principles” has been introduced to describe the delib-erations of courts,16 but it can be applied more generally, as principles can guide the legislator, frame the discretionary power of administra-tions and influence courts. “Directing principles” are thus applicable both in the legal and in the political sphere. Some principles are com-mon for international human rights law as well as e.g. international en-vironmental law.17

II. The Term “Principles” as Applied in National Constitutions

An overview of how economic, social and cultural rights are recognized in national constitutions finds that there are three main approaches.18 First, these rights are recognized as justiciable rights. Second, some rights are recognized in a separate “Bill of Rights”, while third they are recognized as “Directive Principles of State Policy”.19 South Africa, which has a comprehensive “Bill of Rights” Chapter in the Constitu-tion, and India, which has a part in its Constitution termed “Directive Principles of State Policy” will be used as examples. These two coun-tries show that irrespective of the manner by which the social human

16 de Sadeleer, see note 1, 250, 263-303. Moreover, S. Fukuda-Parr, “Human

Rights and Human Development”, in: K. Basu/ R. Kanbur (eds), Argu-ments for a Better World: Essays in Honor of Amartya Sen: Volume II: So-ciety, Institutions, and Development, 2009, 96, finds that human rights principles “guide designs on institutional arrangements.”

17 Ibid., 275-289, emphasizing the procedural rights to information, participa-tion, and access to justice; see also J. Ebbesson, “The Notion of Public Par-ticipation in International Environmental Law”, Yearbook of International Environmental Law 8 (1997), 51 et seq.

18 M. Ssenyonjo, Economic, Social and Cultural Rights in International Law, 2009, 152 et seq.

19 E.g. the Indian Constitution. Although the Directive Principles are asserted to be “fundamental in the governance of the country,” they are not legally enforceable. Instead, they are guidelines for creating a social order charac-terized by social, economic, and political justice, liberty, equality, and fra-ternity as enunciated in the constitution’s preamble.


rights are included in the Constitution, these rights are nevertheless considered justiciable before the courts.

Article 27 para. 1 of the South African Constitution states that “Everyone has the right to have access to a. health care services, includ-ing reproductive health care, ... b. sufficient food and water; and c. so-cial security ...” Moreover, in accordance with para. 2, “The State must take reasonable legislative and other measures, within its available re-sources, to achieve the progressive realisation of each of these rights”. The terms “reasonable” and “available” both give the policy a certain latitude. Moreover, articles 36 and 37 identify the limitations that can be applied generally and during states of emergencies, respectively. The so-cial human rights are not listed among the non-derogable rights of arti-cle 37 para. 5 lit. (c). This is a different approach from that found in the ICESCR, where social human rights can be limited under certain cir-cumstances but not derogated from. Hence, the South African Consti-tution, while recognizing social human rights as such and not just as “principles”, is formulated in a manner through which the scope is somewhat more narrow.

One example of a clear distinction between “rights” and “princi-ples” is the Constitution of India. Part III deals with “Fundamental Rights”, in the realm of equality and freedom, but also includes cultural and educational rights. Part IV deals with “Directive Principles of State Policy”, which are specified in article 37 as not “enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws”. They include several provisions relating to an adequate standard of living and promotion of educational and economic interests of Scheduled Castes and Scheduled Tribes. The Indian Supreme Court, however, has interpreted the right to life to en-compass the right to food.20 Therefore, the separation between the “rights” and the “principles” is not as strict as it might appear. Never-theless, as the “principles” are not enforceable, but only “directive”, the term “principles” has a different connotation from the term “human rights”. Directive Principles do address standards of conduct. This use of the term “principle”, however, is not similar to the term “human rights principles” understood as specifying a minimum requirement of public conduct. To give further examples, now another realm will be re-viewed, which recently has seen a flourishing of the term “principles”, namely the realm of corporate conduct. 20 See note 59 below.


III. Principles Applied in Corporate Conduct Guidelines

Several examples can be given of the application of the term “princi-ples” in the context of corporate conduct. The four examples given are not intended to represent an exhaustive list.

First, the OECD Guidelines for Multinational Enterprises which are recommendations addressed to multinational enterprises. They pro-vide voluntary principles and standards for responsible business con-duct consistent with applicable laws. They aim to ensure that the opera-tions of these enterprises are in harmony with government policies, to strengthen the basis of mutual confidence between enterprises and the societies in which they operate, to help improve the foreign investment climate and to enhance the contribution to sustainable development made by multinational enterprises. The Guidelines are part of the OECD Declaration on International Investment and Multinational En-terprises. The other elements of it relate to national treatment, conflict-ing requirements on enterprises, and international investment incentives and disincentives.21 The Commentary on the OECD Guidelines for Multinational Enterprises states under Commentary on National Poli-cies “2. Obeying domestic law is the first obligation of business. The Guidelines are not a substitute for nor should they be considered to override local law and regulation. They represent supplementary prin-ciples and standards of behaviour of a non-legal character ...”22

Second, the lack of adequate legal and administrative remedies for alleged human rights-incompatible corporate conduct has been ad-dressed by the Special Representative of the United Nations Secretary-General on Human Rights and Transnational Corporations and other Business Enterprises, in his “Respect, Protect, Access to Remedy” framework.23 Subsequently, the Special Representative, in the context of remedies, specified that any “grievance mechanisms” must meet certain principles to be credible and effective;24 legitimacy (acting sufficiently independently); accessibility (in terms of language, costs and travel dis-tance); predictability (clear procedures, including monitoring of how decisions are implemented); equitability (parties are treated fairly); right-compatibility (decisions are in accordance with international hu- 21 <http://www.oecd.org/dataoecd/56/36/1922428.pdf>. 22 Ibid. 23 See note 6. 24 Doc. A/HRC/14/27 of 9 April 2010, para. 94; see also Doc. A/HRC/8/5,

see note 6, para. 92.


man rights standards); transparency (concerning both process and out-come); and dialogue and engagement. These principles are both relevant and appropriate, but they apply to only one aspect of public policy, namely the availability of adequate remedies.

Third, the UN Special Representative has issued Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect, and Remedy” Framework (Guiding Principles).25 Each of the three paragraphs introducing each element lists “Founda-tional Principles”. The term “must” is applied when addressing states, while the term “should” is applied when addressing corporations. When outlining the content of the corporate responsibility to respect human rights, it is specified that,

“The responsibility of business enterprises to respect human rights refers to internationally-recognized human rights – understood, at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the Interna-tional Labor Organization’s Declaration on Fundamental Principles and Rights at Work.”26

This use of the term “principles” when specifying the content is somewhat surprising, as the mentioned instruments explicitly apply the term “rights” and hardly apply the term “principles”.27 The Guiding Principles e.g. state that business enterprises should respect human rights, which means they should avoid infringing on the human rights of others and should address adverse human rights impacts that they may cause or contribute to. Business enterprises whose operations or operating contexts pose risks of severe human rights impacts should re-port formally on how they address them. In all instances, communica- 25 Doc. A/HRC/17/31 of 21 March 2011, Report of the Special Representa-

tive of the United Nations Secretary-General on Human Rights and Trans-national Corporations and other Business Enterprises, John Ruggie, Guid-ing Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework.

26 Ibid., principle 12. 27 Arts 2 and 3 lit. (b) of the ILO Declaration apply the phrase “principles

concerning fundamental rights ...”. As an example, in the ICCPR and ICESCR the term “principles” is used three times in each of them. ICCPR arts 15 para. 2 and 41 para. 1 lit. (c) refer to the “general principles of law” and “generally recognized principles of law” respectively; ICESCR article 11 para. 2 lit. (a) refers to “principles of nutrition” and article 13 para. 4 re-fers to the principles of article 13 para. 1, which will be elaborated in the context of the principle of empowerment below.


tions should “Provide information that is sufficient to evaluate the ade-quacy of an enterprise’s response to the particular human rights impact involved.”28 This application of the term “principles”, through which principles are understood only as operating at a meta-level, is an under-standing that could be challenged.

Fourth, the World Bank, FAO, IFAD and UNCTAD’s “Principles for Responsible Agricultural Investment that Respects Rights, Liveli-hoods and Resources”, adopted in 2010, make use of the term principles in the title and throughout the document, by specifying seven princi-ples:29 respecting existing rights to land; food security; transparency and accountability; consultation and participation; rule of law; social sus-tainability; and environmental sustainability. While several of the prin-ciples have a similar wording to the human rights principles, which will be explained in the section below, the document does not refer to hu-man rights once. As there has been much emphasis on corporations’ human rights responsibility, this must be said to be surprising. The fun-damental nature of human rights principles is that they derive from spe-cific human rights provisions and specify the minimum conduct when seeking to implement these human rights. Principles which are seem-ingly similar to human rights principles, but which are a mixture of corporate principles and good governance principles might serve some functions, but will not be adequate in order to protect the rights of vul-nerable communities which are faced with agricultural investment pro-jects.30

In summary, one can notice that the term “principles” is applied in corporate guidelines in a somewhat confusing manner, and cannot be considered as human rights principles. The term is applied both as an overarching one and also in the context of good governance and corpo-rate conduct. There is now a need to have a clearer understanding of ex-actly what comprises human rights principles.

28 See note 25, principle 21 lit. (b). 29 <http://siteresources.worldbank.org/INTARD/214574-1111138388661/22

453321/Principles_Extended.pdf>. 30 For the most critical comments to the content of the Principles, see Food

First Information and Action Network (FIAN) et al., Why We Oppose the Principles for Responsible Agricultural Investment (RAI), 2010; for a (con-ditional) refutation of this criticism, see H.M. Haugen, “Approaches to-wards valuing local and indigenous peoples’ use of ‘non-timber forest products’ in the context of land acquisition”, Law, Environment and De-velopment Journal 7 (2011), 17 et seq., (24, note 31).


IV. Specifying the Human Rights Principles

The identification of human rights principles will be based on standard sources of international law. Therefore, one has to start with the ordi-nary meaning to be given to the terms of a treaty in their context and in the light of its object and purpose according to article 31 para. 1 Vienna Convention on the Law of Treaties. Together with the context, any sub-sequent agreement and practice according to article 31 para. 3 lit. (a) and (b) shall be taken into account. The list that follows draws upon various other categorizations which will be reviewed in the following.

The first human rights principle, dignity, can be found in the pream-ble of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), containing a recognition that “these rights derive from the inherent dignity of the human person.”31 Non-discrimination is the second human rights principle,32 recognized by both the ICESCR and the ICCPR.33 In General Comment No. 3, the Committee on Eco-nomic, Social and Cultural Rights stated that ensuring enjoyment of human rights based on non-discrimination is a state obligation of “im-mediate effect.”34 The rule of law, including access to effective remedies, is the third human rights principle. This, for example, is enshrined in the ICESCR, in article 2 para. 1 by the wording “particularly the adop-

31 Preamble ICESCR and ICCPR, see also article 1 of the Universal Declara-

tion of Human Rights. 32 While non-discrimination must be considered to constitute a rule, the other

principles must be primarily understood according to Alexy as “norms commanding that something must be realized to the highest degree that is actually and legally possible” (id., “Legal Reasoning and Rational Dis-course”, see note 12, 145).

33 Article 2 para. 2 of the ICESCR reads: “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Article 3 reads: “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.” A similar wording can be found in article 2 para. 1 and article 3 ICCPR.

34 Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties Obligations (art. 2 para. 1), Doc. E/1991/23 of 14 December 1990, para. 1.


tion of legislative measures” in the context of “appropriate means”. Lack of appropriate legislation will result in less effective human rights realization. Without there being either any possible means through which a violation of one’s human rights can be effectively sanctioned or some form of restitution, compensation or satisfaction,35 the human rights guarantees are mere rhetoric.36

Accountability is the fourth human rights principle, applying to duty bearers, subjecting them to scrutiny and possible sanctions if they fail to comply with objective standards. As states have consented to be bound under international law to comply with the human rights treaties once ratified, they are duty bound to fulfill their obligations. These ob-ligations are formulated in more explicit terms in the ICCPR than in the ICESCR, as the former “undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant” and to “adopt such legislative or other measures as may be necessary to give effect to the rights recog-nized …”37 Under the latter the respective State Party “undertakes to take steps, individually and through international assistance and co-operation … to the maximum of its available resources … by all appro-priate means …”38 This different wording does not imply that the hu-man rights recognized are a less integral part of international law or that the obligations imposed are weaker. What the different wording implies is that the latter acknowledges states’ different resource bases, which is to be taken into account in determining whether or not a state has com-plied with its international obligations.

Transparency is the fifth human rights principle. This principle is more explicitly recognized in the most recent human rights treaties, most notably the Convention on the Rights of Persons with Disabilities 35 This list is taken from the Draft Articles on State Responsibility, arts 35

through 37; as found in ILC, Report on the Work of its Fifty-Third Session 23 April-1 June and 2 July-10 August 2001, Doc. A/56/10 of 2001, Chapter IV. Restitution is an obligation to – if possible – “re-establish the situa-tion”; compensation is some form of monetary compensation to be pro-vided “insofar as the damage is not made good by restitution”; and satisfac-tion could be “an acknowledgement of the breach, an expression of regret, a formal apology or any other appropriate modality.”

36 Note in this context that “access to remedy” is the third element in the Framework for Transnational Corporations and other Business Enter-prises, see note 6.

37 ICCPR arts 2 paras 1 and 2. 38 ICESCR article 2 para. 1.


(CRPD). Here article 4 para. 3 might serve as an example, stating that State Parties shall “closely consult with and actively involve” persons with disabilities in the “development and implementation of legislation and policies” to implement the Convention. Moreover, article 33 re-garding “National implementation and monitoring” and article 32 para. 1 lit. (a), “Ensuring that international cooperation, including interna-tional development programmes, is inclusive of and accessible to per-sons with disabilities.” All this is not possible without a minimum of transparency. Participation is the sixth human rights principle and is recognized in several treaty provisions, most frequently in the Conven-tion on the Elimination of All Forms of Discrimination against Women.39 Only effective participation guarantees that the realization of rights takes place through effective mobilization and involvement of all public and private institutions and all inhabitants. Empowerment being the seventh human rights principle. The core of empowerment is to strengthen peoples’ authority or power to do something. According to the Oxford Companion to Law, “Empowerment entails the process of enabling persons or groups to participate more fully as rights bearing entities within a society and state.”

These seven principles form the core of the requirements on the conduct of any policies, and can be termed “obligations of conduct”. This listing does not include the principle of proportionality,40 and other proposed human rights principles, as will be explained below.

39 CEDAW arts 7 lit. (b) (Political and Public Life); 8 (Representation); 10 lit.

(g) (Education); 13 lit. (c) (Economic and Social Benefits); 14 para. 2 lit. (a) (Development Planning); and 14 para. 2 lit. (f) (Community Activities), the two latter ones applying to women in rural areas.

40 The principle of proportionality, as defined by Alexy 2003, see note 12, 135, consists of three sub-principles: the principle of suitability, of neces-sity, and of proportionality in the narrow sense. The latter is specified as whether a measure “excessively burdens the individual compared with the benefits it aims to secure”; S. Tsakyrakis, “Proportionality: An Assault on Human Rights?” Journal of Constitutional Law 7 (2009), 474. As it primar-ily relates to judgments, the principle of proportionality must be under-stood to apply to a “narrow” sphere, and not to public conduct generally. On proportionality in the WTO, see note 61 below.


V. Reviewing the Other Categorizations

In the following, article 3 of the CRPD; the Attachment to the Report from the 2003 Second Interagency Workshop on Implementing a Hu-man Rights-based Approach in the Context of UN Reform;41 the 2008 Report on Indicators to the Twentieth Meeting of Chairpersons of the United Nations Human Rights Treaty Bodies;42 and the FAO categori-zation first made in a 2007 “Focus On the Right to Food” publication, will be reviewed.43 With the exception of the first, which specifies prin-ciples of the “present Convention”, the three others are formulated in a manner by which they must be understood as being generally applica-ble.

The CRPD is included as it is the first treaty that specifies interna-tional treaty human rights principles, and therefore is of interest. Two aspects of CRPD’s listing are worth mentioning. First, “equality” is mentioned twice.44 The term “equality” must be understood to be en-capsulated by the non-discrimination principle. Second, “accessibility” is listed. Whether or not accessibility should be considered a human rights principle is somewhat more complex. The Committee on Eco-nomic, Social and Cultural Rights has defined accessibility as a “core content” of the substantive human rights.45 Hence, in order for the right to food or water to be realized, appropriate accessibility (physical and economical) is crucial. While human rights principles were defined above as “requirements on the conduct of any policies” by this defini-tion, increased accessibility to relevant goods and resources should be the outcome of adequate human rights policies (“obligation of result”), but not mixed with the conduct of the policy per se. 41 United Nations Development Group (UNDG), Attachment 1: The Hu-

man Rights Based Approach to Development Cooperation: Towards a Common Understanding among UN Agencies, 2003, 2.

42 Doc. HRI/MC/2008/3 of 6 June 2008: Report on Indicators for Promoting and Monitoring the Implementation of Human Rights; Report to the Twen-tieth Meeting of Chairpersons of the Human Rights Treaty Bodies, 2008, para. 10.

43 FAO, Focus on the Right to Food: Right to Food and Indigenous Peoples, 2007, 2.

44 CRPD arts 3 lit. (e) (“Equality of opportunity”) and 3 lit. (g) (“Equality between men and women”).

45 For one of many examples, see Committee on Economic, Social and Cul-tural Rights, General Comment No. 12: The Right to Adequate Food (art. 11), Doc. E/C.12/1999/5 of 12 May 1999, para. 8.


The Second Interagency Workshop on Implementing a Human Rights-based Approach in the Context of UN Reform, held in 2003, adopted an understanding of human rights principles which has been generally approved.46 Human rights principles are identified as: univer-sality and inalienability; indivisibility; interdependence and inter-relatedness; equality and non-discrimination; participation and inclu-sion; accountability and rule of law. They are somewhat similar to the ones identified above, leaving out dignity, transparency and empower-ment. This listing includes, however, equality and inclusion, but it can be argued that these two fall within the scope of the human rights prin-ciples of non-discrimination and participation.

Still the ones listed under Section IV. of this article are, however, dif-ferent from those listed above. While acknowledging the importance of these, they just seem to describe the nature of human rights. The nature of human rights has been outlined in the Vienna Declaration and Pro-gramme of Action, which stated that “All human rights are universal, indivisible and interdependent and interrelated.”47 Hence, the nature of human rights determines how these rights are to be understood. The human rights principles, on the other hand, determine the requirements of the relevant processes that must take place to ensure the best realiza-tion of human rights (“obligation of conduct”). This distinction be-tween nature and principles cannot be applied deterministically, how-ever.48

46 OECD, DAC Action-Oriented Policy Paper on Human Rights and Devel-

opment, 2007, 13, note 2 states “UN Agencies have agreed on the following catalogue …”; see also A. Oshaug, “Monitoring the Human Right to Ade-quate Food at Country Level: Challenges and Needed Actions”, in: W. Barth Eide/ U. Kracht (eds), Food and Human Rights in Development, Vol. II, 2007, 433, and J. Kirkemann Boesen/ H.O. Sano, “The Implications and Value Added of a Human-Rights-Based Approach”, in: B.A. Andreassen/ S.P. Marks (eds), Development as a Human Right: Legal, Political and Eco-nomic Dimensions, 2nd edition, 2010, 58 et seq.

47 Doc. A/CONF.157/23 of 12 July 1993, Vienna Declaration and Programme of Action, para. 5.

48 Fukuda-Parr, see note 16, treats the interdependence and indivisibility of human rights – implying that the realization of one human right will de-pend on how other human rights are being enjoyed – as human rights prin-ciples, finding that these two aspects cannot be applied in order to avoid sequence and resource prioritization. Therefore, those concepts which can also be argued to belong to the nature of human rights can give some guid-


In the 2008 Report on Indicators to the Twentieth Meeting of Chairpersons of the United Nations Human Rights Treaty Bodies, the human rights principles are understood to be “cross-cutting” and ap-plying to the “process to implement and realize human rights”. As they are introduced with the term “for instance”, this clearly indicates that the human rights principles mentioned above cannot necessarily be un-derstood to be an exhaustive list. As participation is a human rights principle, it follows logically that such participation is inclusive or in-clusionary. Moreover, there is a strong relationship between participa-tion and empowerment, but as argued above, these are adequately un-derstood as distinct human rights principles. There are three instances where participation cannot be considered to lead to empowerment. First, if there is no substantive and actual involvement and participation takes place only through one formal consultation, with limited dia-logue, resembling forms of co-optation. Second, if participation is im-peded by lack of adequate translation, description and visualization, so that there are no real possibilities to understand the core of the issues at stake. Third, if there is an understanding that participation can ade-quately take place through certain persons said to represent others, without questioning the participating persons’ interests or degree of be-ing affected, and the potential tensions between those present and those not present.

The fourth categorization, developed by FAO, is identical to the one elaborated in the section above, and still seems to be relatively little known.49 Interestingly, the first time FAO presented this listing was in a publication on the right to food and indigenous peoples. There can be no doubt that the indigenous peoples’ relationship to their land implies that there must be high demands on the quality of any decision-making processes which will affect their access to their land and resources. Many indigenous peoples have not adequately been able to take part in decision-making processes, both nationally and locally, leaving them vulnerable to any outcomes of these processes. From reviewing interna-tional law, it is clear that there are few provisions which outline the

ance on the processes of human rights realization, which can be assessed by the lens of human rights principles.

49 One of the few examples of applying the Food and Agriculture Organiza-tion (FAO) list is A. Eide, The Right to Food and the Impact of Liquid Bio-fuels (Agrofuels), 2008, 28, who identifies the seven principles above, but adds another, namely “good governance”. Moreover, Ssenyonjo, see note 18, 147 lists “monitoring” as one of the principles.


content of such participation.50 Specific policy standards applicable to indigenous peoples have been adopted by the World Bank,51 and the IFC is in the process of developing a Performance Standard 7 – Indige-nous Peoples, with “special requirements” outlined in paras 14 through 20.52 The particular position of indigenous peoples in relation to their land and resources is emphasized in these policies and standards. These examples are illustrative of an overall tendency to provide for a more comprehensive participation by and empowerment of indigenous peo-ples.

This review has shown that the FAO categorization is the most comprehensive one, and should be applied to guide public conduct. While both the report from the Second Interagency Workshop, and the Report on Indicators to the Twentieth Meeting of Chairpersons of the United Nations Human Rights Treaty Bodies list “inclusion”, it is diffi-cult to distinguish substantively between “participation” and “inclu- 50 The most specific provision is ILO Convention No. 169 concerning In-

digenous and Tribal Peoples in Independent Countries stating in article 6 lit. (a) that consultations shall take place “through appropriate procedures, and in particular through their representative institutions …” It is not specified what is meant by “appropriate procedures”. The Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (CBD COP 6 Decision VI/24: Ac-cess and Benefit-Sharing as Related to Genetic Resources), use the weak term “should” when prior informed consent of indigenous and local com-munities is addressed; see arts 26 lit. (d) and 31; see also 16 lit. (b) (ii) and 16 lit. (d) (iii). All provisions referring to indigenous peoples’ consent in the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, Decision X/1, Annex, restrict their influence, by stating that the provisions shall be ap-plied “in accordance with”, “subject to” or “as required by” domestic legis-lation or domestic law.

51 The Operational Policy and Bank Procedure on Indigenous Peoples (OP/BP 4.10 of July 2005), specifying in paras 18, 20 that the “free, prior, and informed consultation process” should lead to “broad support” for any required relocation, and in the absence of such support, the “borrower will not carry out such relocation”. See also Operational Policy (OP/BP 4.12 of December 2001) on Involuntary Resettlement.

52 See also IFC’s Draft of Performance Standard 1 on Assessment and Man-agement of Social and Environmental Risks and Impacts; Draft of Per-formance Standard 5 on Land Acquisition and Involuntary Resettlement; Draft of Performance Standard 6 on Biodiversity Conservation and Sus-tainable Natural Resource Management; and Draft of Performance Stan-dard 8 on Cultural Heritage.


sion”. “Empowerment”, on the other hand, seems to be more distinc-tive. Empowerment is the result of many comprehensive processes, where education and transformation of power relations are crucial.

VI. State Conduct

State conduct will to a lesser or greater extent apply to almost any sphere of society. In line with the scope of this article, the examples will be on social human rights, particularly the right to food and water. As food and water are scarce resources, adequate public measures are es-sential to ensure adequate management, distribution and utilization of these resources. While the examples to illustrate the application of the seven human rights principles are from different sectors, they are all relevant for central areas of public conduct, seeking to show what states must consider and prioritize. The aim of this section is not to test by specific case studies whether a policy conduct that explicitly observes the human rights principles is markedly different from policies con-ducted irrespective of the human rights principles. Rather, this section seeks to identify relevant policy areas where the active observation and application of the human rights principles will make a difference.

Despite being the foundation for human rights, dignity does not al-ways appear too visible in justifying certain directions of public con-duct. A notable exception is the Vienna Declaration and Programme of Action, which “affirms that extreme poverty and social exclusion con-stitute a violation of human dignity …”53 As human dignity is inherent to all human beings simply by being human,54 a violation of this dignity must be considered as a challenge for humanity as a whole. Facing a situation where more than one billion persons who are living under ex-treme poverty are facing daily violations of their dignity must be under-stood as requiring bold action. Cash transfer programs to assist poor families in purchasing adequate food is one way to mitigate the condi-tions of poverty,55 but must be supplemented by other measures to en-hance the self-sufficiency of these families.

53 See note 47, para. 25. Poverty is also addressed in para. 14. 54 J. Donelly, Human Dignity and Human Rights, 2009, 10: “being human

makes one worthy or deserving of respect.” 55 For a comprehensive review of cash transfer programs, see the 2009 report

by the Independent Expert on the Question of Human Rights and Extreme Poverty, Doc. A/HRC/11/9 of 27 March 2009. While no resolution was


Turning to non-discrimination, this principle is absolutely central for the realization of economic and social human rights. Below, indirect discrimination will be assed – resulting from laws, policies or practices appearing neutral, but which have a disproportionate impact on the ex-ercise of human rights. Article 2 para. 2 of the ICESCR states that the state shall guarantee that the rights are exercised without discrimination of any kind. “Property” is listed as one of the prohibited grounds for discrimination. The General Comment which outlines the content of article 2 para. 2 states that “access to water services and protection from forced eviction, should not be made conditional on a person’s land ten-ure status, such as living in an informal settlement.”56 Even if General Comments are not legally binding, the specification that states are not permitted to give less priority to water delivery in informal settlements than in established residential areas must nevertheless be noted.

Rule of law is a comprehensive human rights principle. Addressing all relevant dimensions derived from this principle is simply not possi-ble. Still it will be briefly analyzed how courts might end up in cases where such rights have not been implemented in national law. The right to food is recognized in relatively few national legislations,57 with few explicit prohibitions,58 and with relatively few successful court cases,59

adopted specifically on this report, the Human Rights Council later in 2009 mandated further work on the Draft Guiding Principles on Extreme Pov-erty and Human Rights, see Doc. A/HRC/RES/12/19 of 2 October 2009.

56 Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2), Doc. E/C.12/GC/20 of 2 July 2009, para. 25, referring to Gen-eral Comment No. 15: The Right to Water (arts 11 and 12), Doc. E/C.12/2002/11 of 20 January 2003, para. 16 lit. (c); and General Comment No. 4: The Right to Adequate Housing (art. 11 para. 1), Doc. E/1992/23 of 13 December 1991, para. 8 lit. (a).

57 While there are fewer than 30 countries which have provisions in their leg-islation on the right to food, FAO has developed a database consisting of strategies and laws adopted in 73 countries to create an adequate environ-ment for the realization of the right to food.

58 But see D. Marcus, “Famine Crimes in International Law”, AJIL 97 (2003), 245 et seq., building broad evidence that international criminal law crimi-nalizes government action that creates famine. While General Comment No. 12, see note 45, para. 19, identifies six distinct “violations” of the right to food, it cannot be presumed that these are generally recognized.

59 For an exception, see Supreme Court of India, People’s Union for Civil Liberties v. Union of India and others: Written Petition [Civil] No. 196 of 2001, Judgment of 2 May 2003 in which the right to food was understood


even if the right to be free from hunger according to article 11 para. 2 ICESCR is termed “fundamental”. Hence, there might be instances where the rule of law implies that corporate interests are more strongly emphasized than the human rights interests of persons and communi-ties. Rule of law is, however, not only about what the courts do, but also concerns national parliaments and governments, and the right to food could become more influential on e.g. patent legislation and en-forcement, if governments consider explicitly whether the realization of the right to food is likely to be affected by the exercise of patent rights.60 This is about ensuring proportionality61 or weighing of inter-ests.62

The accountability principle is generally applicable, but becomes even more relevant where the service delivery is partly done by com-mercial actors. These actors must operate within the legal framework set out. Hence, the state maintains the overall accountability for the overall level of services or goods provided, but the specific provider is not relieved from accountability. As stated in General Comment No. 15 of the Committee on Economic, Social and Cultural Rights “The hu-man right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, reduce the risk of water-related disease and provide for consumption, cooking, personal and domestic hygienic require-ments”.63 Moreover, the World Water Council states that the World Water Forum “is not a place for private firms to exploit water as a com-modity but, to the contrary, to discuss and find common solutions

as an integral element of the right to life, which is protected by article 21 of the Indian Constitution.

60 For a comprehensive analysis, see H.M. Haugen, The Right to Food and the TRIPS Agreement – With a Particular Emphasis on Developing Coun-tries’ Measures for Food Production and Distribution, 2007.

61 On WTO proportionality, see P. van den Bossche, “Looking for Propor-tionality in WTO Law”, Legal Issues of Economic Integration 35 (2008), 283 et seq.; see also M. Andenæs/ S. Zleptnig, “Proportionality: WTO Law in Comparative Perspective”, Tex. L. Rev. 42 (2007), 371 et seq.

62 See note 40; see also de Sadeleer, see note 1, 289 et seq. 63 General Comment No. 15, see note 56, para. 2; see also para. 44 lit. (b) ibid.

Relevant World Water Council material includes C. Dubreuil, The Right to Water: from Concept to Implementation, World Water Council 2006 and id., Synthesis on the Right to Water, 4th World Water Forum, Mexico, 2006. See also in this respect A/RES/64/292 of 28 July 2010.


…”64 These “solutions” must observe one of the core contents of the right to water, namely (economic) accessibility.

Transparency is crucial for allowing well-informed participation. Negotiations and signing of economic agreements or agreements on the transfer of or (long-term) lease of land are in many countries taking place without adequate transparency. The increased emphasis on par-ticipatory processes and enhanced transparency will be mutually rein-forcing and will lead to a more effective collection and management of public resources and therefore improved human rights realization. Fi-nally, empowerment is the result of a comprehensive and long-term ef-fort in many policy spheres. The improved nutrition of children might serve as an example. In line with article 11 para. 2 lit. (a) ICESCR among other measures State Parties shall disseminate “knowledge of the principles of nutrition …” When experiencing that more children sur-vive, families will have reduced incentives to have as many children as possible, as an extra guarantee. When the birth rate falls, there will be less pressure on the school and health system. This will benefit the overall welfare of the states.

As the above examples illustrate, by emphasizing human rights prin-ciples across the various policy areas, state conduct will improve and lead to more effective human rights protection. Further case studies could identify which changes in policy conduct could be identified as a result of a more careful observation and application of human rights principles. This will also apply to courts. Both human rights and human rights principles have to be taken into account.

VII. Corporate Conduct

This section will not elaborate in detail on the human rights responsi-bilities of corporate actors,65 but rather identify what determines the re-

64 World Water Council, 5th World Water Forum: Frequently Asked Ques-

tions, 2009, FAQ 14. 65 The central studies on corporations and human rights are O. De Schutter

(ed.), Transnational Corporations and Human Rights, 2006; A. Clapham, Human Rights Obligations of Non-State Actors, 2006, 195; A. McBeth, International Economic Actors and Human Rights, 2010, 71 et seq. and 243 et seq.; see also K. Weilert, “Taming the Untamable? Transnational Corporations in United Nations Law and Practice”, Max Planck UNYB 14 (2010), 445 et seq.


sponsibility of corporate actors, and how far this responsibility extends, since human rights principles should also be observed by corporate ac-tors as part of their overall human rights responsibilities. The analysis will primarily focus on the duty to respect human rights, identifying also how due diligence is to be exercised when relating to sub-contractors and suppliers.

The original mandate of the Special Representative of the United Nations Secretary-General on Human Rights and Transnational Cor-porations and other Business Enterprises was to do research and clarify the “sphere of influence” concept.66 At the end of his first term, the Special Representative found, however, that while this concept “remains a useful metaphor for companies to think broadly about their human rights responsibilities and opportunities beyond the workplace, it is of limited utility in clarifying the specific parameters of their responsibil-ity to respect human rights”.67 Rather, he found that in line with the re-sponsibility to respect, companies must “exercise due diligence to iden-tify, prevent and address adverse human rights impacts related to their activities”.68 He observed that the scope of due diligence to meet the corporate responsibility to respect human rights is not a fixed sphere, nor is it based on influence. Rather, it depends on the potential and ac-tual human rights impacts resulting from a company’s business activi-ties and the relationships connected to those activities.69

Emphasizing due diligence as crucial in the context of respecting human rights, actually implies a wider understanding of what respect-ing human rights entails, being traditionally understood as non-interference. Hence, “[t]he duty to respect as formulated ... , incorpo-rating the obligation of due diligence, therefore in some respects resem-bles the duty to protect human rights.”70 Moreover, enhanced due dili-gence must be exercised in states with weak government institutions. The UN Special Representative stated that the “incidence of corporate-related human rights abuse is higher in countries with weak governance

66 Doc. E/CN.4/RES/2005/69 of 20 April 2005, para. 1 lit. (c). 67 Doc. A/HRC/8/16 of 15 May 2008, para. 18. 68 Ibid., para. 17. 69 Ibid., para. 25. 70 McBeth, see note 65, 270; Weilert, see note 65, 503, finding that the Special

Representative insists on a comprehensive corporate responsibility to re-spect; see also Doc. A/HRC/11/13 of 22 April 2009, paras 59-60; Doc. A/HRC/8/5of 7 April 2008, paras 56-64.


institutions”.71 On a more general basis, “Governments currently lack adequate policies and regulatory arrangements for fully managing the complex business and human rights agenda”.72

The OECD Guidelines under Part II. General Policies state that “Enterprises should … 2. Respect the human rights of those affected by their activities consistent with the host government’s international obli-gations and commitments”. This does not fully capture the situation de-scribed by the Special Representative. By emphasizing consistency with the host government’s international obligations and commitments, cor-porate actors are only bound in the human rights sector by the respec-tive Conventions signed.73 The Commentaries to the OECD Guide-lines under Part III. also state that obeying domestic law is the first ob-ligation of business.74 It is obvious that there are states with weaker and inadequate laws, and enterprises tend to exploit such situations when conducting their operations. The Special Representative requires the corporate actors therefore to consider the impact of their activities and this should be done irrespective of whether the host state has consented to take upon itself more demanding human rights obligations or not, or whether it has adequate laws and institutions in place.

Probably one of the most dramatic impacts of corporate conduct is the relocation of indigenous peoples. Here the already mentioned World Bank Policy states that in the absence of broad support, the actor borrowing World Bank funds “will not carry out such relocation …”75 and, applying only to IFC projects, it is stated that unless based on in-formed participation in negotiations with a successful outcome, a pro-ject involving relocation “will not proceed …”76 It has to be born in mind though while the ILO has recognized the principle of free, prior 71 J.G. Ruggie, Consultation on Operationalizing the Framework for Business

and Human Rights presented by the Special Representative of the United Nations Secretary-General on Human Rights and Transnational Corpora-tions and other Business Enterprises, 5-6 October 2009, Opening Remarks, 3.

72 Ibid., 2. 73 The international human rights treaties signed vary from country to coun-

try quite heavily, cf. e.g. the status of Norway with that of Singapore and Malaysia, see OHCHR, Status of Ratification of Human Rights Instru-ments, <www.2.ohchr.org/english/bodies/treaty/docs/HRChart.xls>.

74 OECD Guidelines, see note 6, 39 (Commentary 2). 75 World Bank, see note 51, para. 20. 76 IFC, see note 52, para. 17. Note that this applies to “land subject to tradi-

tional ownership under customary use”.


and informed consent, the World Bank Group has not explicitly en-dorsed that principle.77 Also those activities conducted by suppliers and subcontractors of corporate actors have to be in compliance with hu-man rights standards.78 This due diligence responsibility must be under-stood to be absolute. 79

VIII. Conclusion: Are there Inherent Dangers in Focusing on Human Rights Principles?

This article has applied a broad approach to studying human rights re-alization, based on the understanding that most important for ensuring enjoyment of human rights is the quality of policy formulation and im-plementation, including the content of laws and profile of budgets. As human rights principles establish minimum standards of conduct, more careful observation and application of human rights principles can con-tribute to enhancing the quality of both public and corporate conduct.

Human rights principles do not stand alone, but become effective when linked to and applied together with substantive human rights, emphasizing the process for their effective realization. Hence, there is no conflict between a stronger focus on human rights principles, focus-ing on policy formulation and implementation, and the focus on how to enforce substantive human rights before national and international courts.

Non-discrimination is the most frequently used human rights prin-ciple in the judicial realm. If allegations of violations of substantive hu-man rights are presented before a court, the weight of the evidence will

77 According to J. Cariño/ M. Colchester, “From Dams to Development Jus-

tice: Progress with ‘Free, Prior and Informed Consent’ Since the World Commission on Dams”, Water Alternatives 3 (2010), 425 et seq. (426); R. Goodland, “Free, Prior and Informed Consent and the World Bank Group”, Sustainable Development Law & Policy 4 (2004), 66 et seq.

78 Special Representative of the United Nations Secretary-General on Human Rights and Transnational Corporations and other Business Enterprises Draft Guiding Principles for the Implementation of the United Nations “Protect, Respect and Remedy” Framework of 22 November 2010, Draft Guideline 15 (c).

79 For an analysis of most of the Special Representative’s reports, concluding that his mandate “was and still is very helpful on the complex issue of TNCs and human rights”, see Weilert, see note 65, 503.


be stronger if it can be documented that the conduct in question has also been discriminatory. Moreover, if it can be proven that a decision-making process has been conducted without the required participation from the affected communities, this will substantively strengthen the complainants’ arguments before the court.

Any promotion of human rights principles should emphasize that these are derived from ordinary sources of law, primarily human rights treaties. The most important role of human rights principles is the em-phasis on obligation of conduct, guiding legislators, administrations and courts. This article has found that there is a strong basis for applying human rights principles next to human rights, as a more careful obser-vation and application of these principles can contribute to enhance the quality of both public and corporate conduct.

The Human Right to Water and Sanitation

Adele J. Kirschner

“The water is not good in this pond. We collect it because we have no alterna-tive. All the animals drink from the pond as well as the community. Because of the water we are also getting different diseases.”

Zenebech Jemel, Chobare Meno, Ethiopia (cited in Human Development Report 2006) “The conditions here are terrible. There is sewage everywhere. It pollutes our water … Our children suffer all the time from diarrhoea and other diseases be-cause it is so filthy.”

May Akinyi, Kibera, Nairobi, Kenya (ibid.)



I. Introduction 1. Water and Sanitation Crisis 2. Approach

II. Genesis III. Legal Framework

1. Legal Basis a. International Agreements b. Regional Agreements

aa. Africa bb. Americas cc. Europe

c. Customary International Law d. National Constitutions and Legislations

2. The Status of the RTWS 3. Content and Corresponding State Duties

a. Content aa. The Right to Water bb. The Right to Sanitation

b. Corresponding State Duties aa. Respect bb. Protect cc. Fulfill

4. Accountability and Implementation a. Enforceability on an International Level b. Enforceability on a National Level

IV. Implications of the RTWS 1. Privatization and the RTWS 2. Transboundary Waters and the RTWS

V. Conclusion

Kirschner, The Human Right to Water and Sanitation 447

I. Introduction

Living in Western Europe we tend to take it for granted that we have access to safe water and hygienic sanitary facilities wherever and when-ever we might need them.1 Likewise the issue of a human right to water and sanitation (RTWS) might appear kind of remote. Yet in other parts of the world where people are forced to travel long distances for water, especially clean water and have no choice other than to relieve them-selves in the open,2 a RTWS can prove to be a valuable tool to help im-prove their situation. This article offers a comprehensive overview of the RTWS. Following a short introduction and preliminary remarks re-garding the chosen approach, in Part II. the genesis of the debate on a RTWS shall be outlined before then examining under Part III. the legal framework and under Part IV. implications of this right.

1. Water and Sanitation Crisis

Unsafe water and inadequate sanitation cost millions of lives every year.3 The crisis claims in fact more lives than violence and war.4 In No-vember 1980 the UN General Assembly expressed its concern “that a large part of the world’s population does not have reasonable access to safe … water … and that an even larger part is without adequate sanita- 1 Cf. C. Albuquerque, “Sanitation as a Human Right”, in: H. Smets (ed.),

L’accès à L’assainissement, un Droit Fondamental – The Right to Sanitation in National Laws, 2010, 15 et seq. (15).

2 According to a report issued by WHO and UNICEF more than a quarter of the population in several Sub-Saharan African states take longer than 30 minutes to make one water collection trip and 1.1 billion people still defe-cate in the open, WHO and UNICEF, Progress on Sanitation and Drinking Water 2010 Update, 2010, 22, 28, available at <http://www.who.int>.

3 Children are especially vulnerable. According to the WHO and UNICEF diarrhoea is the second largest cause of death among children under five. The death toll is higher than the death toll from AIDS, malaria and measles combined, cf. WHO Fact Sheet No. 330 “Diarrhoeal Disease” of August 2009, available at <www.who.int>; UNICEF/WHO, Diarrhoea: Why Children are Still Dying and What Can be Done, 2009, 5 et seq.

4 UNDP, Human Development Report 2006, Beyond Scarcity: Power, Pov-erty and the Global Water Crisis, 2006, 1, available at <http://hdr.undp. org>.


tion facilities.”5 Almost 20 years later, in July 2010 the UN General As-sembly issued a new resolution in which it again expressed its deep con-cern that “approximately 884 million people lack access to safe … water and that more than 2.6 billion do not have access to basic sanitation.”6 Reading this is more than alarming and even harder to believe. Cer-tainly one aspect of this development is owed to continuing population increase and rapid urbanization, but there is no doubt that this devel-opment constitutes one of the major failures of governments and the in-ternational community in recent history.7

2. Approach

Here the right to drinking water (RTW) and the right to sanitation (RTS) are regarded as two distinct (but also complementary) compo-nents of the Right to Water and Sanitation (RTWS). As can already be inferred from the title of the article, it treats the right to water and sani-tation as one single right. Recent calls for treating the RTS as a distinct right are mainly based on the argument that sanitation issues reach far beyond the linkage to water.8 Whereas this cannot be completely denied and there are indeed essential differences between both rights, a total separation between the RTS and the RTW is not advisable,9 as it neither does reflect the current trend in international practice, nor is it rational. Both rights are closely related normatively and by matter-of-fact. As will be shown later, they are grounded on the same legal basis.10 More-

5 A/RES/35/18 of 10 November 1980. 6 A/RES/64/292 of 28 July 2010. 7 See also J. Scanlon, “Water as a Human Right?”, in: A. Postiglione (ed.),

The Role of the Judiciary in the Implementation and Enforcement of Envi-ronmental Law, 2008, 183 et seq. (184).

8 See A. Khalfan/ T. Kiefer, The Human Right to Water and Sanitation: Le-gal Basis, Practical Rationale and Definition, available at <http://www. cohre.org>, 6. Moreover, the CESCR recently acknowledged in its “State-ment on the Right to Sanitation” that sanitation has distinct features that call for a separate treatment from water in some respects, cf. CESCR, Statement on the Right to Sanitation, 45th Sess., 19 November 2010, Doc. E/C.12/2010/1, para. 7.

9 G. Payen/ T. Van Waeyenberge, “The Need to Define the Right to Sanita-tion in Order to Promote its Implementation”, in: Smets, see note 1, 57 et seq. (68).

10 Cf. Doc. E/C.12/2010/1, see note 8. See also under III. 1. below.


over from a more practical perspective it is not possible to provide clean and safe water without finding solutions for waste water treatment and the disposal of excreta. In other words, sanitation aspects always have a direct impact on water and its quality.11 Unfortunately both compo-nents have not (yet) received the same amount of attention and sanita-tion has for long been a largely neglected topic.12 Instead of only high-lighting this disparity, the present article seeks to take a more balanced approach. It should be noted, however, that this question must not be confused with the question of whether the RTWS is to be regarded as an independent right on its own. The question of the status has so far not been entirely answered and there is still some confusion on the is-sue.13 As will be explained later the RTWS is regarded as holding a sort of unique status since it is considered as an independent right which has, however, developed from other rights it is closely related to.14

II. Genesis

Water, not to mention sanitation, was, for a long time, at best a side is-sue on the international agenda, let alone the international debate about human rights. International human rights documents such as the Uni-versal Declaration of Human Rights of 1948 as well as the two Cove-nants of 196615 do not explicitly refer to the RTW or the RTS. It was not until the 1970s that the international community even started to re-alize that it needed to address water resources problems and related is-sues.16 More precisely the issue first came to the fore in 1977 at the UN

11 Payen/ Van Waeyenberge, see note 9, 68. 12 Doc. E/C.12/2010/1, see note 8, para. 1. 13 See Annual Report of the United Nations High Commissioner for Human

Rights and Reports of the Office of the United Nations High Commis-sioner for Human Rights and the Secretary-General, Doc. A/HRC/6/3 of 16 August 2007, 21.

14 See under III. 2. below. This is also argued by A. Cahill, “The Human Right to Water – A Right of Unique Status: The Legal Status and Norma-tive Content of the Right to Water”, The International Journal of Human Rights 9 (2005), 389 et seq.

15 International Covenant on Civil and Political Rights (ICCPR), UNTS Vol. 999, 171; International Covenant on Economic, Social and Cultural Rights (ICESCR), UNTS Vol. 993, 3.

16 S.M.A. Salman/ S. McInerney-Lankford, The Human Right to Water: Le-gal and Policy Dimensions, 2004, 7.


Conference on Water in Mar del Plata, Argentina. The Conference was devoted to discussing emerging water resources problems, “which would help the world to avoid a water crisis of global dimensions.” Par-ticipating states claimed in their final Declaration, the Mar del Plata Ac-tion Plan, that “all peoples … have the right to have access to drinking water in quantities and of a quality equal to their basic needs.”17

Next to frequently being considered as a milestone in the history of water development and management, this was also the first time that the issue of a right to water was brought to the international agenda.18 An-other outcome of the conference was the recommendation to proclaim the period 1981-1992 as the International Drinking Water Supply and Sanitation Decade.19 The idea was to draw international attention to the fact that a large part of the world’s population did not have access to safe water and adequate sanitation facilities, as well as to mobilize gov-ernments to take action and respond to this situation.20

Unfortunately at the time many countries were faced with a rapid population growth and urbanization which made it very difficult for them to maintain their efforts.21 In sum, little progress was achieved and actions proved insufficient so that states eventually failed to meet their goals.22 It must, however, be acknowledged that without the proc-lamation of the Decade progress in this area would probably have been even less.23

17 UN Water Conference “Mar del Plata Action Plan” (14-25 March 1977)

Doc. E/CONF.70/29. Formulated as a collective and not an individual right.

18 A.K. Biswas, “From Mar del Plata to Kyoto: an Analysis of Global Water Policy Dialogues”, Global Environmental Change 14 (2004), 81 et seq. (82); Salman/ McInerney-Lankford, see note 16, 9.

19 See Report of the United Nations Water Conference, Mar del Plata, see note 17, UN Publications Sales No. E.77.II.A.12 and Corrigendum, Chap-ter 1, para. 15.

20 Cf. A/RES/35/18, see note 5, preamble. 21 Report of the Secretary-General on Achievements of the International

Drinking Water Supply and Sanitation Decade, Doc. A/45/327 of 13 July 1990, paras 13 et seq.

22 O. Lohse, Das Recht auf Wasser als Verpflichtung für Staaten und nicht-staatliche Akteure: Art. 11 Abs. 1, Art. 12 Internationaler Pakt über wirtschaftliche, soziale und kulturelle Rechte, 2005, 28.

23 Biswas, see note 18, 2.


Following the Mar del Plata Conference it took another 15 years until the international community convened to take up the issue again at the International Conference on Water and the Environment which took place in 1992 in Dublin, Ireland. The conference adopted the so-called Dublin Statement where it reads in Guiding Principle No. 4 that “it is vital to recognize first the basic right of all human beings to have access to clean water and sanitation at an affordable price.”24 By includ-ing the wording “affordable price” the statement proclaims that the right to water does not imply that water should be provided for free.25 This has to be read in the context of considering water as an economic good, which pervades the Dublin Statement and has been heavily criti-cized by NGOs.26

The Dublin Statement was commended to the partakers of the UN Conference on Environment and Development, held in Rio de Janeiro four months later (Rio Summit). Chapter 18 of Agenda 21, on fresh wa-ter resources, adopted at the Rio Summit, however, failed to address the issue of a right to access fresh water.27 The same is true for the Rio Dec-laration on Environment and Development which does not even con-tain a reference to the resource.28 Two years later at the International Conference on Population and Development in Cairo participating states restated their commitment to the RTWS by claiming that indi-viduals “have the right to an adequate standard of living … including adequate food, clothing, housing, water and sanitation.”29 This time, without a supplement regarding “affordability”.

24 International Conference on Water and the Environment, Dublin State-

ment on Water and Sustainable Development of 31 January 1992, Principle No. 4.

25 Salman/ McInerney-Lankford, see note 16, 9, who also note that the Dub-lin Principles do not yet explain the concept of “affordability”.

26 B. Rudolf, “Menschenrecht Wasser – Herleitung, Inhalt, Bedeutung und Probleme”, in: B. Rudolf (ed.), Menschenrecht Wasser?, 2007, 15 et seq. (17); cf. International Conference on Water and the Environment, see note 24.

27 UN Conference on Environment and Development Agenda 21 of 3-14 June 1992, Doc. A/CONF.151/26/Rev. 1 Vol. I, 9.

28 UN Conference on Environment and Development “Rio Declaration on Environment and Development” of 14 June 1992, Doc. A/CONF. 151/26/Rev. 1 Vol. I, 3.

29 Report of the International Conference on Population and Development, 5-13 September 1994, Doc. A/CONF.171/13/Rev. 1 (hereafter: Cairo Dec-laration), Principle 2. Emphasis added.


In 1999, the UN General Assembly reaffirmed the right to clean wa-ter in its resolution on the right to development.30 The significance of this resolution though is considered to be fairly low, since it was adopted mostly by developing countries under abstention and even some dissenting votes by industrialized countries.31 It has been specu-lated that the reason behind this reluctance is most likely due to their refusal to recognize a right to development, and not necessarily to wa-ter.32 Unfortunately this nevertheless ushered in a new era of indecision and the issue of a RTWS was not revived at subsequent international conferences relating to water and development.

Neither at the Johannesburg Summit on Sustainable Development (2002)33 nor at the World Water Forum in Kyoto (2003)34 and Mexico City (2006)35 did states reaffirm the RTW or RTS.36 Overall, the human rights perspective played only a small role in all these conferences and for quite some time this did not change. The issue of a RTW on the in-ternational political agenda was significantly boosted by the UN Committee on Economic Social and Cultural Rights (CESCR) and its General Comment No. 15 in 2002.37 The General Comment stated that the “human right to water is indispensable” and provided guidelines for the interpretation of the RTW under arts 11 and 12 of the Covenant.

30 A/RES/54/175 of 17 December 1999, para. 12 (a). 31 Rudolf, see note 26, 17; see also: General Assembly Official Records 54th

Sess., 83rd Plenary Mtg, Doc. A/54/PV/83, 24. 32 Rudolf, see note 26, 17 et seq. 33 Report of the World Summit on Sustainable Development of 26 August – 4

September 2002, Doc. A/CONF.199/20. 34 3rd World Water Forum, Ministerial Declaration of 23 March 2003, re-

printed in: Environmental Policy and Law 33 (2003), 172 et seq. 35 4th World Water Forum Ministerial Declaration of 22 March 2006, avail-

able at <www.worldwaterforum4.org.mx/home/%5Cfiles%5CDeclaracio nes%5CMinisterialDeclaration.pdf>.

36 It should be noted that at the 2002 Johannesburg World Summit on Sus-tainable Development, states amended Millennium Development Goal Seven (ensure environmental sustainability) by extending the commitment to “halve, by 2015, the proportion of the population without sustainable access to safe drinking water and basic sanitation” (Target 7 c), cf. World Summit on Sustainable Development Report, see note 33, para. 25. Whereas this might underscore the importance of the issue, it is no recogni-tion of a RTWS.

37 CESCR General Comment No. 15: The Right to Water (arts 11 and 12), Doc. E/C.12/2002/11 of 20 January 2003.


Unfortunately except for an occasional reference to the need for sanita-tion to ensure water quality,38 access to sanitation was not covered and adequately dealt with.

It was under the auspices of the United Nations that the debate about a RTWS then gradually accelerated. In 2005 the Sub-Commission on the Promotion and Protection of Human Rights adopted Guidelines on the Realization of the Right to Drinking Water and Sanitation stat-ing therein that the RTWS “is unquestionably a human right.”39 The Guidelines were based on a 2004 report of the Special Rapporteur Mr. El-Hadji Guisé on the “relationship between the enjoyment of eco-nomic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation.”40 The Guidelines were intended to provide assistance on how to implement the RTWS and do so by highlighting the main and most urgent components. With regard to the RTW they adopted the definition provided by the CESCR in General Comment No. 15,41 whereas contrary to the General Com-ment with regard to the RTS they offer a definition. The RTS is seen as the right of everyone “to have access to adequate and safe sanitation that is conducive to the protection of public health and the environ-ment.”42

Similarly in 2007 the Office of the United Nations High Commis-sioner for Human Rights conducted a study upon a request of the Hu-man Rights Committee (HRC) on the scope and content of the obliga-tions related to the access to safe drinking water and sanitation.43 In her conclusion the High Commissioner44 notes that she “believes that it is now time to consider access to safe drinking water and sanitation as a human right” and that states should dedicate their attention to the reali-zation of this right since “this issue is currently being neglected.”45 Fur-thermore, the study also stresses the “need for further elaboration of

38 General Comment No. 15, see note 37, paras 1, 29, 37 (i). 39 Doc. E/CN.4/Sub.2/2005/25 of 11 July 2005, preamble. 40 Final Report of the Special Rapporteur Guissé, Doc.

E/CN.4/Sub.2/2004/20 of 14 July 2004. 41 See under III. 3.a. aa. below. 42 Doc. E/CN.4/Sub.2/2005/25, see note 39, 1.2. 43 Doc. A/HRC/6/3, see note 13. 44 Louise Arbour, who was UN High Commissioner from 2004-2008. 45 Doc. A/HRC/6/3, see note 13, paras 66, 69.


certain aspects of human rights obligations attached to access to safe drinking water and sanitation.”46

This was closely followed by a resolution of the HRC on Human Rights and Access to Safe Drinking Water and Sanitation,47 expressly taking up the High Commissioner’s point regarding the need to further clarify the human rights obligations related to the RTWS.48 This resolu-tion marks the beginning of the so-called Geneva Process,49 comprising the appointment of an Independent Expert “on the issue of human rights obligations related to access to safe drinking water and sanita-tion” whose tasks shall inter alia be to prepare a study to further clarify the content of human rights obligations.50 Six months later the HRC appointed the first Independent Expert on the Right to Water and Sani-tation (Ms. Catarina de Albuquerque),51 whose mandate was only re-cently renewed in March 2011 for another three years.52 Also the UN General Assembly declared the year 2008 as an International Year of Sanitation,53 to raise awareness and highlight the issue on the interna-tional agenda. Across the globe this inspired quite a few deliberations and conferences finally according the subject more attention and calling for higher levels of investment in sanitation.54

It is against this background that the UN General Assembly adopted Resolution 64/292 of 28 July 2010 expressly declaring the RTWS as a human right.55 For the first time the General Assembly de- 46 Ibid., para. 68. 47 Resolution 7/22 Human Rights and Access to Safe Drinking Water and

Sanitation of 28 March 2008, Doc. A/HRC/7/22. 48 Ibid., paras 1, 2. 49 L. Furch, “Menschenrecht auf Wasser - und Sanitärversorgung: UN Reso-

lutionen als Schlüssel zum Paradies?”, European Journal of Transnational Studies 2 (2010), 26 et seq. (33).

50 Doc. A/HRC/7/22, see note 47, para. 2. 51 See Report of the Human Rights Council of its Ninth Session of 2 Decem-

ber 2008, Doc. A/HRC/9/28, Annex IV. 52 Doc. A/HRC/16/L.4 of 18 March 2011, para. 4. 53 A/RES/61/192 of 20 December 2006. 54 See in particular: “Message from Beppu” adopted at the first Asia-Pacific

Water Summit of 3-4 December 2007, Beppu (Japan); other selected Con-ferences on the issue: Third South Asian Conference on Sanitation (SA-COSAN III) of 16-21 November 2008, New Delhi, India; Second African Conference of Sanitation and Hygiene (AfricaSan) of February 2008, Dur-ban, South Africa.

55 A/RES/64/292, see note 6.


bated the issue of water and sanitation. The HRC at its 50th session re-affirmed its earlier commitment and underscored the existence of a RTWS in a new resolution.56 Finally in November 2010 the CESCR is-sued a Statement on the Right to Sanitation57 confirming that “the right to sanitation is an essential component of the right to an adequate stan-dard of living” and “is fundamental for human survival and for living a life in dignity.”58 Unfortunately the statement only affirms the right but takes no steps as to further defining its content and scope.59

III. Legal Framework

The following section provides an overview of the legal framework of the RTWS. Apart from the legal sources on which the right is based (1.), this includes the question of its status in international law (2.) and an outline of the substantive content and duties it imposes (3.), as well as finally its enforcement (4.).

1. Legal Basis

a. International Agreements

Unfortunately the RTWS has so far not been explicitly recognized. Sev-eral international (human rights) agreements, however, stipulate specific obligations with regard to access to water and sanitation. For instance, the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)60 obliges State Parties to take all appropriate measures to ensure that women living in rural areas can “enjoy ade-quate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.”61 Not-withstanding the restricted scope of article 14, applying only to women

56 Doc. A/HRC/RES/15/9 of 30 September 2010. 57 Doc. E/C.12/2010/1, see note 8, para. 7. 58 Ibid. 59 H. Smets, “Le droit de l’homme à l’eau et à l’assainissement est finalement

reconnu”, Revue Juridique de L’Environnement 1 (2011), 79 et seq., (85). 60 Convention on the Elimination of All Forms of Discrimination against

Women (CEDAW), UNTS Vol. 1249, 13. 61 Article 14 para. 2 (h) CEDAW, see note 60. Emphasis added.


living in rural areas, it is a noteworthy development with regard to the advancement of a RTWS62 as CEDAW makes an explicit reference to water supply and sanitation. This differentiation not only very well il-lustrates the change in perception with regard to water and sanitation, as mentioned earlier, but also underlines the individual importance of access to adequate sanitation alongside water.63

The Convention on the Rights of the Child (CRC)64 in article 24 (2)(c) stipulates the requirement “to combat disease and malnutrition, …, through, inter alia, … the provision of … clean drinking water.”65 The supply of clean water is regarded as an essential aspect for the full implementation of the highest attainable standard of health. Whereas this is certainly true, it is far from being comprehensive since it only re-lates to a certain aspect of water, namely its quality.66 Moreover, sanita-tion is only referred to as an issue of health education under article 24 (2)(e). A clear reference to access to sanitation is missing.

The Convention on the Rights of Persons with Disabilities (CRPD)67 came into force in 2008. The Convention makes explicit ref-erence to access to clean water in its article 28 (2) by stating, that State Parties shall take appropriate steps “(a) to ensure equal access by per-sons with disabilities to clean water services ...”.68 A separate reference to sanitation is missing.

Next to the Human Rights treaties the Geneva Conventions of 1949 and the Additional Protocols of 1977 underline the vital importance of water and sanitation for health and survival, by obliging State Parties to fulfill the respective obligations. According to the Third Geneva Con-vention relative to the Treatment of Prisoners of War, State Parties shall provide prisoners of war with sufficient access to water and sanitary fa-

62 Lohse, see note 22, 55. This gets clear when comparing it to previous hu-

man rights treaties/ documents stipulating the right to an adequate standard of living. See, for example, article 25 para. 1 Universal Declaration of Hu-man Rights and article 11 ICESCR.

63 Lohse, see note 22, 56. 64 Convention on the Rights of the Child (CRC), UNTS Vol. 1577, 3. 65 Emphasis added. 66 Cahill, see note 14, 391. 67 Convention on the Rights of Persons with Disabilities (CRPD), GAOR

61st Sess. Suppl. 49 Vol. 1, 65. 68 Emphasis added.


cilities.69 Similar obligations can also be found in the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.70 Moreover, both additional Protocols declare drinking water in-stallations to be objects indispensable for the survival of the civilian population, which needs to be protected in times of conflict.71

Next to the explicit references there also exist a number of implicit references. The most prominent example is the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The CESCR, when adopting General Comment No. 15, stated that article 11 (1) specifies a number of rights “emanating from, and indis-pensable for, the realization of the right to an adequate standard of liv-ing.” The RTW “clearly falls within the category of guarantees essential for securing an adequate standard of living” and is also “inextricably re-lated to the right to the highest attainable standard of health” enshrined in article 12 (1).72 The Committee also mentioned access to sanitation in para. 37 (i) of General Comment No. 15, as part of the core obligations pertaining to the right to water. Although General Comments are not binding, they are regarded as an authoritative interpretation of the Covenant.73 The General Comment has received wide acceptance74 and

69 Arts 20, 26, 29, 46 Geneva Convention III (Geneva Convention relative to

the Treatment of Prisoners of War), UNTS Vol. 75, 135. 70 Arts 85, 89, 127 Geneva Convention IV (Geneva Convention relative to the

Protection of Civilian Persons in Time of War), UNTS Vol. 75, 287. 71 Article 54 Additional Protocol I (Protocol Additional to the Geneva Con-

ventions of 12 August 1949, and relating to the Protection of Victims of In-ternational Armed Conflicts (Protocol I), UNTS Vol. 125, 3); article 14 Additional Protocol II (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), UNTS Vol. 125, 609).

72 General Comment No. 15, see note 37, para. 3. 73 M. Craven, The International Covenant on Social, Economic and Cultural

Rights. A Perspective on its Development, 1995, 91. 74 This is at least indicated by the fact that, with the exception of Canada (cf.

Concluding Observations CESCR Canada, Docs E/C.12/CAN/CO/4, E/C.12/CAN/CO/5 of 22 May 2006, paras 30, 64), no State Party voiced an objection to the CESCR interpretation of article 11 and article 12 of the ICESCR; M. Langford, “Ambition that Overleaps itself? A Response to Stephen Tully’s Critique on the General Comment on the Right to Water”, NQHR 24 (2006), 473 et seq. (475). Moreover, this is underscored by the fact that all states which have ratified the ICESCR have also stated earlier in the Cairo Declaration, (see above note 29), that the right to an adequate


it is interesting to note that the General Assembly, when adopting the above mentioned resolution, made explicit reference to General Com-ment No. 15.75 According to article 11 (1) of the Covenant, State Parties “recognize the right of everyone to an adequate standard of living …, including adequate food, clothing and housing ....”.76 The CESCR states, that by using the expression “including” article 11 (1) indicates that the right to an adequate standard of living is not necessarily limited to the catalogue of rights enlisted therein. It goes on by stating, that “the right to water clearly falls within the category of guarantees essen-tial for securing an adequate standard of living, particularly since it is one of the most fundamental conditions of survival.”77

Even though it can hardly be denied that access to water, just as to food, is quintessential for an adequate standard of living, this interpreta-tion has been criticized.78 Not only do critics consider it as an attempt to revise article 11 of the Covenant by reading new rights into the pro-vision,79 but they also fear that this deconstruction leaves room for speculation about other characteristics being essential for an adequate standard of living, possibly heralding other possible rights like the ac-cess to electricity or even the internet.80

The claim of exceeding its authority is largely based on the argument that the drafters of the Covenant discarded the inclusion of a right to water.81 The object and purpose of article 11 ICESCR though is to se-cure the provision and maintenance of a standard of living that is ade-

standard of living includes water and sanitation, Khalfan/ Kiefer, see note 8, 2 et seq.

75 A/RES/64/292, see note 6, para. 3 preamble. 76 Article 11 ICESCR. Emphasis added. 77 General Comment No. 15, see note 37, para. 3. 78 See for example M.J. Dennis/ D.P. Stewart, “Justiciability of Economic, So-

cial and Cultural Rights: Should there be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?”, AJIL 98 (2004), 462 et seq. (493 et seq.); S. Tully, “A Human Right to Access Water? A Critique of General Comment No. 15”, NQHR 23 (2005), 35 et seq. (35-63).

79 According to Tully, it is “the responsibility of governments to pursue the article 29 amendment procedure if the Covenant is adjudged (by them) to be inadequate” rather than leaving the issue to the Committees for exten-sive interpretation, Tully, see note 78, 37.

80 On the Human Right to Electricity see Tully, see note 78. 81 Craven, see note 73, 25.


quate for human well-being.82 This must consequently include a mini-mum of basic needs for the individual.83 While food, clothing, and housing are certainly essential components of this right they do not suf-fice. A living without access to safe water (and sanitation) cannot possi-bly be considered an adequate standard.84

Moreover, treaty interpretation requires the adjustment of treaty provisions to today’s circumstances. Societies and circumstances change, whereas access to water might not have been an issue in 1966 it had certainly come to the fore by 2002. Just because the drafters did not expressly include water it does not mean that they wanted to exclude it. Finally with regard to the charge that the CESCR’s reading of article 11 would open the door to a flood of new rights, it must be said that this ignores the underlying aspect of the CESCR’s reasoning, attributing a special status to the fundamental need for water.85 It is simply not com-parable to electricity or internet access.86

The second legal basis which the General Comment cites is article 12 of the Covenant, the right to the highest attainable standard of health.87 As the CESCR has already stated in its General Comment No. 14 on the Right to Health, access “to safe and potable water and adequate sanitation” is fundamental for realizing the highest attainable standard of health.88 According to the CESCR the Right to Water is “inextrica-bly related to the right to the highest attainable standard of health”89 and “environmental hygiene, as an aspect of the right to health under article 12, paragraph 2 (b) ... encompasses taking steps ... to prevent

82 Cf. C.M. Peter, “Promotion of Standard of Living”, in: R. Wolfrum (ed.),

Max Planck Encyclopedia of Public International Law, 2011, paras 4, 6. 83 Craven, see note 73, 305. 84 Khalfan/ Kiefer, see note 8, 2. 85 Langford, see note 74, 437. The special status is clearly expressed through

para. 3 of General Comment No. 15, “The right to water clearly falls within the category of guarantees essential for securing an adequate stan-dard of living, particularly since it is one of the most fundamental condi-tions for survival.”

86 Langford, see note 74, 437. 87 Article 12 ICESCR states that “[t]he State Parties to the present Conven-

tion recognize the right of everyone to the enjoyment of the highest attain-able standard of physical and mental health.”

88 CESCR General Comment No. 14, The Right to the Highest Attainable Standard of Health, Doc. E/C.12/2000/4 of 11 August 2000, para. 11.

89 General Comment No. 15, see note 37, para. 3.


threats to health from unsafe and toxic water conditions.”90 The CESCR failed to include a clear reference regarding the relationship be-tween clean water and sanitation. However, the reference to article 12 ICESCR at least shows that the CESCR recognizes the link and has kept this issue in mind.91

Finally, the General Comment also refers to the right to life and human dignity. Although these rights are not part of the family of eco-nomic and social rights they are considered as a point of reference.92 A life in human dignity clearly encompasses access to basic human needs such as water and sanitation. Evidently without water there can be no life. However, an issue of contention is whether the right to life shall be interpreted narrowly, thus only protecting against arbitrary deprivation of life, or broadly, so that it functions as a guarantee against death from such causes as lack of water e.g.93 By its very nature, the right to life is first and foremost a civil right, securing the freedom of the individual.94 Accordingly, it is argued that a state does not need to provide for ap-propriate means of subsistence to adhere to its obligation stemming from article 6 of the ICCPR.95 Thus the acceptance of death from such causes as lack of water would under this interpretation not be regarded as a violation of the human right to life.96

Conversely in its interpretation of article 6 the HRC stressed the fact that the right to life has been too often narrowly interpreted and requires states to adopt positive measures for its protection.97 It goes on by stating that, besides providing protection against the arbitrary depri- 90 General Comment No. 15, see note 37, para. 8. See also General Comment

No. 14, see note 88, para. 12. 91 E. Riedel, “The Human Right to Water and General Comment No. 15”, in:

E. Riedel/ P. Rothen (eds), The Human Right to Water, 2006, 19 et seq. (27).

92 Rudolf, see note 26, 25. 93 S.C. McCaffrey, “The Human Right to Water”, in: E. Brown-Weiss/ L.

Boisson de Chazournes/ N. Bernasconi-Ostewalder (eds), Fresh Water and International Economic Law, 2005, 94 et seq. (97).

94 M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commen-tary, 2005, article 6 reference note 3.

95 Y. Dinstein, “The Right to Life, Physical Integrity, and Liberty”, in: L. Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights, 1981, 114 et seq. (115).

96 Dinstein, see note 95, who refers to the toleration of malnutrition. 97 HRC General Comment No. 6, The Right to Life (Article 6), Doc.

HRI/GEN/1/Rev.9 (Vol. I) of 30 April 1982, paras 1, 5.


vation of life, states shall also provide protection from other threats to human life such as malnutrition and epidemics.98 This interpretation suggests that states need to ensure that every human being has access to appropriate means of subsistence.99 Accordingly, this would encompass the RTWS since the lack of water is just as severe a threat to human life as malnutrition. Nevertheless it is most questionable whether this goes as far as creating a right to sustenance under the right to life.100 It is, however, clear that since without water there is no life, the right to life should include the protection against arbitrary and intentional denial of access to water.101

b. Regional Agreements

At the regional level there are a series of references to access to water and sanitation. They are of interest as they can provide support for a broad acceptance and common understanding of a RTWS.

aa. Africa

In the African region, two human rights instruments explicitly refer to water and its access. Similar to the CRC, States Parties to the African Charter on the Rights and Welfare of the Child (1990)102 shall take measures to ensure the provision of safe drinking water in order to im-plement the right to health.103 Also, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (2003)104 con-tains the explicit obligation to provide women with clean drinking wa-

98 Ibid., para. 5. 99 Cf. S.C. McCaffrey, “A Human Right to Water: Domestic and Interna-

tional Implications”, Geo. Int’l Envtl. L. Rev. 5 (1992), 1 et seq. (10 et seq.). 100 McCaffrey, see note 99, 11. 101 J. Scanlon/ A. Cassar/ N. Nemes, “Water as a Human Right?”, IUCN En-

vironmental Policy and Law Paper No. 51, 2004, 4. 102 African Charter on the Rights and Welfare of the Child, OAU Doc.

CAB/LEG/24.9/49 (1990). 103 Article 14 African Charter, see note 102. Unfortunately it also lacks a refer-

ence to sanitation. 104 Protocol to the African Charter on Human and Peoples’ Rights on the

Rights of Women in Africa (Maputo Protocol), OAU Doc. CAB/LEG/66.6 reprinted in: African Human Rights Journal 1 (2001), 53 et seq.


ter.105 Moreover, although a regional instrument concerning environ-mental protection rather than human rights law, the so-called Maputo Convention,106 a revised version of the African Convention on the Conservation of Nature and Natural Resources from 1968 (Algiers Agreement),107 stipulates in its article VII that State Parties “shall en-deavor to guarantee for their populations a sufficient and continuous supply of suitable water.”108 Noteworthy in this respect is the Senegal River Charter,109 a vanguard agreement at least in the setting of trans-boundary fresh water resources, which was signed in 2002 by Maurita-nia, Mali and Senegal, since it explicitly refers to the right to water as a fundamental human right.110 Finally in 2008 the nine riparian states of the river Niger signed the so-called Charter on the Waters of the Niger Basin111 which not only repeatedly refers to the right to water, but also obliges states to act accordingly and pay special attention to basic hu-man needs.112

bb. Americas

Article 11 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights

105 See article 15 (a) Protocol to the African Charter on Human and Peoples’

Rights, see note 104. 106 Revised African Convention on the Conservation of Nature and Natural

Resources of 2003, available at <http://www.au.int> (Maputo Convention), not yet entered into force.

107 African Convention on the Conservation of Nature and Natural Resources (with Annexed List of Protected Species), UNTS Vol. 1001, 3. The African Convention was the first Convention dedicated to the conservation of the environment and natural resources on the African continent cf. IUCN En-vironmental Policy and Law Paper No. 56: An Introduction to the African Convention on the Conservation of Nature and Natural Resources, 2004, ix.

108 Article VII (2) Maputo Convention, see note 106. 109 Charte des Eaux du Fleuve Sénégal (2002), available at

<http://www.ecolex.org/server2.php/libcat/docs/TRE/Multilateral/Other/mul71173.pdf>, Senegal River Charter.

110 See article 4 of the Senegal River Charter, see note 109. 111 La Charte de L’eau du Basin Niger, signed 30 April 2008, Niger River

Charter, available at <http://www.abn.ne/index.php/fre/Vision-Partagee/ Etudes-majeures/Charte-de-l-eau>.

112 See preamble and arts 1, 4, 15, Charte de l’Eau Niger Bassin, see note 111.


(Protocol of San Salvador 1988)113 provides that “everyone shall have the right to live in a healthy environment and to have access to basic public services.”114 It can hardly be contended that basic public services should not include access to water and sanitation. This understanding is also supported by a report from the Inter-American Commission on Human Rights, delivered in 1997 on the human rights situation in Bra-zil. It criticized that there existed an inequality in the access to basic public services, as roughly 20 per cent of the population had no access to potable water and roughly 26 per cent lacked access to sanitary ser-vices.115

cc. Europe

Under the auspices of the United Nations, Member States of the Eco-nomic Commission for Europe signed the so-called Protocol on Water and Health116 to the Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes (1992) in 1999.117 Even though the Protocol is not a human rights instrument, its aim is to pro-vide access to drinking water and sanitation for everyone.118 It contains no explicit reference with regard to a RTWS, nevertheless it can still be read as a tool for the implementation and practical enhancement of the RTWS.119

113 Additional Protocol to the American Convention on Human Rights in the

Area of Economic, Social and Cultural Rights (Protocol of San Salvador), ILM 28 (1989), 156 et seq.

114 Article 11 Additional Protocol to the American Convention, see note 113. 115 Inter-American Commission on Human Rights, Report on the Human

Rights Situation in Brazil, Doc. OEA/Ser.L/V/II.97, Doc. 29 Rev.1 of 29 September 1997, Chapter II.

116 UNECE Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, ILM 38 (2005), 1708 et seq.

117 UNECE Convention on the Protection and Use of Transboundary Water-courses and International Lakes, UNTS Vol. 1936, 269. In context with the RTWS see A. Tanzi, “Reducing the Gap between International Water Law and Human Rights Law: The UNECE Protocol on Water and Health”, In-ternational Community Law Review 12 (2010), 267 et seq.

118 Article 6 (1) UNECE Protocol on Water and Health to the 1992 Conven-tion on the Protection and Use of Transboundary Watercourses and Inter-national Lakes, see note 116.

119 Tanzi, see note 117, 283.


c. Customary International Law

Rules of customary international law are a source of general interna-tional law binding upon states.120 There is a growing international con-sensus in support of the RTWS which can be observed in the recent boost regarding the issuance of international legal documents, treaties and declarations,121 alongside the increasing incorporation of the RTWS into national laws.122 In particular, A/RES/64/292, which was adopted by a majority of 122 Member States, with no votes against, marks a new era in this respect.123 As stated above, this was the first time that the UN General Assembly held an entire debate on the issue of a human right to water, declaring as its outcome the access to clean water and sanitation as a human right. It might be concluded though that the RTWS has passed the age of an “emerging right.”124 Nevertheless one should not forget that the resolution was adopted with 41 abstentions, including countries like Austria, the Czech Republic, Denmark, Greece, Ireland, Sweden, Turkey and the United Kingdom as well as e.g. Can-ada, Japan and the United States.125

120 As defined by Article 38 (1)(b) of the ICJ Statute, listing the sources of in-

ternational law, customary international law is “evidence of a general prac-tice accepted as law”.

121 Cf. Council of Europe Parliamentary Assembly Resolution 1809 (2011): “Water - a Source of Conflict” adopted by the Assembly on 15 April 2011 (18th sitting); HRC Doc. A/HRC/RES/15/9, see note 56; Doc. E/C.12/2010/1, see note 8; A/RES/64/292, see note 6; Doc. A/HRC/7/22, see note 47; Doc. A/HRC/6/3, see note 13.

122 Cf. most recently article 43 (1) (b) and (d) of the new Constitution of Kenya of 28 August 2010. See also under III.1.d. below.

123 Although not legally binding it has a great political impact, which signals the importance of this issue to Member States.

124 On an “emerging” right to water see M. Craven, “Some Thoughts on the Emergent Right to Water”, in: Riedel/ Rothen, see note 91, 37 et seq. ; Sal-man/ McInerney-Lankford, see note 16, 85 et seq.; Rudolf, see note 26, 35.

125 Cf. General Assembly Press Release, GA/10967 of 28 July 2010. Several of the abstaining countries explained their decision with the fear that the reso-lution might be undermining the ongoing Geneva Process (see in particular Turkey and the United States). In this regard the US Representative stated that “[i]t [the resolution] described the right to water and sanitation in a way not reflected in existing international law since there was no ‘right to water and sanitation’ in an international legal sense, as described by the resolution” (Explanation of Vote on Resolution A/64/L.63/Rev.1 of 28 July 2010. Conversely Ms. Catarina de Albuquerque expressly welcomed the


Moreover, the RTWS is largely still ill-defined and there is much stronger support for the RTW than the RTS. This is for the most part due to the lack of clarity regarding the obligations related to the latter, posing a problem to its practical utilization and implementation.126 However, even if one considers this as sufficient opinio juris, the exis-tence of a respective state practice is still highly questionable.127 With regard to the RTWS state practice would need to manifest itself in a “uniform” manner so as to “show a general recognition that a rule of law or legal obligation is involved.”128 Although it would go beyond the scope of this article to fully analyze this issue, already the study of various reports examining the implementation of the RTWS shows that even though a legal framework exists, the RTWS is not applied and im-plemented consistently,129 due to multiple reasons ranging from lack of resources to the plain absence of political will.130 Moreover, existing state practice with regard to access to water and sanitation is so far not perceived as evidence that states respect the core obligations of the RTWS independently from the obligations imposed by the Cove-nant.131 It has to be concluded that the RTWS has not yet fully been en-shrined in customary international law.

resolution stating that “the right to water and sanitation, is contained in ex-isting human rights treaties and is therefore legally binding”, OHCHR Press Release of 1 October 2010.

126 Payen/ Van Waeyenberge, see note 9, 59. On the issue of defining sanita-tion in human rights terms: COHRE/ WaterAid/ SDC/ UN-HABITAT, Sanitation: A Human Rights Imperative, 2008. Moreover, sanitation is one of the most off-track targets of the Millennium Development Goals (MDG), Doc. E/C.12/2010/1, see note 8, para. 3. At the current rates of progress the MDG target for sanitation in sub-Saharan Africa will not be met until 2076, COHRE/ WaterAid/ SDC/ UN-HABITAT, Sanitation: A Human Rights Imperative, 2008, 1.

127 Rudolf, see note 26, 35. 128 North Sea Continental Shelf case, ICJ Reports 1969, 3 et seq. (para. 74). 129 C. Dubreuil, “The Right to Water: from Concept to Implementation”,

World Water Council 2006, 7; B. Björklund/ J. Sjödin (eds), “The Human Right to Water and Sanitation: Securing Access to Water for Basic Needs”, Swedish Water House Policy Brief No. 8, 2010, 7 et seq.

130 Dubreuil, see note 129, 7. 131 Rudolf, see note 26, 34.


d. National Constitutions and Legislations

When examining national law one will quickly observe a clear trend towards recognition of the RTWS. Several national legal systems have developed legislation that recognizes and protects the RTWS.132 In part, states have also enshrined the RTWS in their constitutions. This is par-ticularly true for developing countries with constitutions of a more re-cent date. Noteworthy are inter alia the new Kenyan Constitution of 2010 which explicitly includes the right to “clean and safe water in ade-quate quantities” and the right to a “reasonable standard of sanitation”, article 43 (1) (d), (b) in its bill of rights, and the South African Constitu-tion of 1996 where article 27 (1) (b) reads as follows: “everyone has the right to have access to … sufficient … water.”

In South America, both the new Bolivian and the Uruguayan Con-stitution stipulate that access to drinking water and sanitation is a hu-man right.133 Apart from these few selected examples, various other constitutions also include direct or indirect references with regard to the RTWS or at least impose obligations to ensure the access to water and/or sanitation.134

When it comes to implementing the RTWS, South Africa is one of the pioneers.135 With article 27 (1) (b) of the Constitution as a point of departure, it has in the meantime established a comprehensive legal framework to implement the RTWS. This compromises inter alia the so-called Water Services Act (1997)136 and National Water Act (1998).137

132 For a comprehensive overview see: COHRE, Legal Resources for the Right

to Water and Sanitation, International and National Standards, 2nd edition 2008.

133 Article 20 Constitution of Bolivia 2009; article 47 Constitution of the Re-public of Uruguay. It is noteworthy that the RTW was inserted in the Uru-guayan Constitution after a successful referendum in 2004, Constitución de la República Oriental del Uruguay (adopted 27 November 1966, entered into force February 1967) reprinted in: G.H. Flanz (ed.) Constitutions of the Countries of the World, Vol. 19, Suppl. 98-3, 1–121 as amended 31 Oc-tober 2004.

134 Cf. inter alia Constitutions of Ecuador, Ethiopia, Gambia, Uganda, Vene-zuela and Zambia.

135 On the RTW in South Africa see C. Human, “The Human Right to Water in Africa: The South African Example”, in: Riedel/ Rothen, see note 91, 83 et seq.

136 Republic of South Africa, Water Services Act, Act No. 108 of 1997, Gov-ernment Gazette No. 18522, Vol. 390, 1997.


Whereas the latter governs integrated water resource management, the former was drafted to regulate the provision of water services through-out the country and its first and main objective is to give effect to the constitutional guarantee and to ensure that everybody has access to ba-sic water supply and sanitation services.138 In 2002 South Africa adopted the Free Basic Water Implementation Strategy devising a free minimum amount of 6,000 liters of safe water per household per month.139 Likewise it also adopted a Free Basic Sanitation Implementa-tion Strategy in 2009, with the express aim to guide water service au-thorities in providing all citizens with free basic sanitation by 2014.140

2. The Status of the RTWS

After having examined the legal basis and sources of the RTWS, the is-sue of its status within human rights law remains.141 The RTWS is fre-quently referred to not as an independent right on its own which can be claimed as such, but as a right which can solely be claimed in connec-tion with other human rights, especially the right to health and the right to an adequate standard of living.142 One may wonder if it makes a dif-

137 Republic of South Africa, National Water Act, Act No. 36 of 1998, Gov-

ernment Gazette No. 19182, Vol. 398, 1998. 138 Cf. Human, see note 135, 84 et seq. 139 Republic of South Africa, Department of Water Affairs and Forestry, Free

Basic Water Implementation Strategy, version 2 of August 2002, available at <http://fbs.dplg.gov.za/fbs/site/docs/DocumentLibrary/FBW/FBWImple mentStrategyAug2002.pdf?PHPSESSID=4ff7407c9b0a1e8b99ae70b097632 b94>.

140 Republic of South Africa, Department of Water Affairs and Forestry, Free Basic Sanitation Implementation Strategy, final version of 1 October 2008, available at <http://www.dwaf.gov.za/dir_ws/waterpolicy/vdFileLoad/file. asp?ID=556>. According to the Strategy the provision of basic sanitation requires access to basic sanitation services which are defined as “the provi-sion of a basic sanitation facility which is easily accessible to members of the household, has the necessary operational support for safe removal of human waste and wastewater from the premises where this is appropriate and necessary, and the communication of good sanitation, hygiene and re-lated practices”.

141 This question was noted as an issue requiring further elaboration in the OHCHR Report, Doc. A/HRC/6/3, see note 13, 21.

142 See for example HRC Doc. A/HRC/RES/15/9, see note 56, para. 3; water has also been seen as part of the right to food, both as “liquid food”, cf. J.


ference whether one considers it as an independent right or not. But the problem with treating the RTWS as a right derived from other rights is that this can, in certain circumstances, limit the scope of afforded pro-tection. With a derivative right, protection would only be granted for certain aspects of the RTWS, in particular those which are related to the right it is derived from (e.g. the right to an adequate standard of living). A comprehensive protection covering all issues related to the RTWS could thus not be provided. Access to water may, for example, be dis-criminatory without in any way affecting the individual’s health.143 It is, however, not only the scope of protection that is limited but also the difference regarding state obligations related to this right, and hence, the different methods used to enforce it.144

Unfortunately recent developments concerning the RTWS, such as the recognition of the RTWS by the UN General Assembly and the HRC, have not made things clearer. Whereas the General Assembly resolution explicitly recognizes the RTWS as “a human right that is es-sential for the full enjoyment of life and all human rights”, the HRC has taken up the wording of General Comment No. 15, stating that the RTWS “is derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of … health, as well as the right to life and human dignity.”145 Although it cannot be denied that the issuance of these documents provides in itself strong support for the recognition of an independent right, they are still not explicit.

Apart from providing greater legal certainty there are several other reasons that warrant a treatment of the RTWS as a distinct right. First of all, water and sanitation are undoubtedly primary vital needs. They should not be subordinated under the rights to health, housing or an adequate standard of living, but be given the “prominence and visibility

Ziegler, UN Special Rapporteur on the Right to Food, Day of General Dis-cussion on Draft General Comment on the Right to Water, CESCR 29th Sess. of 22 November 2002 and as a necessity for food. On the right to food in general see S. Skogly, “Right to Adequate Food: National Imple-mentation and Extraterritorial Obligations”, Max Planck UNYB 11 (2007), 339 et seq.

143 Cahill, see note 14, 395. 144 I.J. Alvarez, “The Right to Water as a Human Right”, in: R. Picolotti/ J.D.

Taillant (eds), Linking Human Rights and the Environment, 2003, 71 et seq. (72).

145 Doc. A/HRC/RES/15/9, see note 56, para. 3.


of a distinct right.”146 Secondly, as explained in the previous section, ef-fective implementation of the RTWS on a national level is extremely important. If the RTWS is, however, connected to other rights protect-ing, for example, adequate housing and health, this can cause problems that might again impede implementation. In practice, authorities being responsible for the implementation of rights related to health and hous-ing will generally be different from those being responsible for water and sanitation. This could lead to an overlap of responsibilities or, even worse, incapacity on the part of the authorities to handle the issue.147

In sum, although it is warranted to lift the RTWS “from the shadow of other related human rights”, the obligations it imposes on states still raise some questions. For the time being one can only concur with Ca-hill that the RTWS holds a “unique status” in a situation somewhere be-tween a derivative and independent right.148

3. Content and Corresponding State Duties

The RTWS is an entitlement held by all people,149 but what does it en-tail? How much water are individuals entitled to? What quality does water need to have? What responsibilities does the RTWS entail for states? These and other questions shall be explored in the following sec-tion while taking a closer look at the content and obligations imposed by the RTWS.

General Comment No. 15 and the Guidelines of the Sub-Commission both closely define and develop the content and scope of the RTWS. Taken together they are the primary basis for the RTWS es-tablishing criteria that states need to meet in order to properly fulfill the right. Whereas the Sub-Commission Guidelines are consistent with General Comment No. 15 with regard to the RTW, they include more details on the RTS when it comes to the normative content and scope, so that they complement each other in a way.

146 Khalfan/ Kiefer, see note 8, 6. 147 Ibid. 148 Cahill, see note 14, 395. 149 COHRE/AAAS/SDC/UN-HABITAT, Manual on the Right to Water and

Sanitation, 2007, 11.


a. Content

Since the components of the RTWS are unequally developed, it is hard to distinguish the content at large. For this reason the content of RTW and the RTS shall be, in each case, examined separately.

aa. The Right to Water

The core message which General Comment No. 15 provides is that, “the human right to water entitles everyone to sufficient, safe, accept-able, physically accessible and affordable water for personal and domes-tic uses.”150 As mentioned earlier, the CESCR derives the right to water from the right to an adequate standard of living, article 11 (1) of the Covenant, and the right to the highest attainable standard of health, ar-ticle 12 (1). The right to water is clearly essential for securing an ade-quate standard of living “including adequate food, clothing and hous-ing” and likewise without clean water none of these rights can be prop-erly realized.151 The CESCR relies on three factors that need to be achieved in order to realize the right to water, namely availability, qual-ity and access.152

Availability requires water supplies to be sufficient and continuous for personal and domestic uses.153 Regarding the quantity of water re-quired, the CESCR refers to the WHO guidelines for drinking water quality that were designed to guide governments to develop national standards for safe water quality.154 According to the WHO basic (minimum) access requires at least 20 liters of water per person per day. Optimal access would, however, be at least 100 liters.155

Providing access to sufficient amounts of water is largely futile if the water is of poor quality. States are thus required to develop procedures and standards to ensure drinking-water safety.156 Good quality drinking

150 Cf. General Comment No. 15, see note 37, para. 2. 151 Ibid., para. 3. 152 Ibid., para. 12. 153 Ibid. 154 Ibid. 155 WHO Guidelines for Drinking-Water Quality, 3rd edition, Vol. I, 2008, 91.

The average daily water consumption in Europe is more than 200 liters – in the United States more than 400 liters, UNDP, Human Development Re-port 2006, see note 4, 5, 34.

156 WHO Guidelines, see note 155, xvi.


water requires water to be safe i.e. “free from micro-organisms, chemi-cal substances and radiological hazards that constitute a threat to a per-son’s health.”157 Water should be of an “acceptable colour, odour and taste”158 and water and water facilities need to be accessible to every-one.

According to the CESCR accessibility has several dimensions: water and water facilities must be physically and economically accessible and must be granted without discrimination.159 In particular, physical acces-sibility requires water and water facilities to be within safe physical reach i.e. “within, or in the immediate vicinity, of each household, edu-cational institution and workplace.”160 It should be noted that women and children are especially vulnerable in this regard. When, for example, a school lacks access to drinking water children may be prevented from attending classes. Also the burden of collecting water often rests upon women who run the risk of being attacked if required to travel long dis-tances alone to reach a water source.161 Water and water services must be affordable, in order to be economically accessible.162 Accordingly states are under an obligation to ensure that individuals are not denied access to water because they cannot afford related costs and charges. Besides, as already stated, accessibility requires access without discrimi-nation. This requires states to ensure that all people especially “the most vulnerable or marginalized sections of the population” are granted ac-cess to water “in law and in fact”.163 No person may be denied access to water on grounds of inter alia “race, colour, sex, age, language, religion, political or other opinion, national or social origin.”164

Finally the CESCR refers to “information accessibility”, meaning that everyone shall be granted “the right to seek, receive and impart in-formation concerning water issues.”165

157 General Comment No. 15, see note 37, para. 12 (b). Emphasis in original. 158 Ibid., article 12 (b). 159 Ibid., para. 12 (c). 160 Ibid., para. 12 (c)(i). 161 Riedel, see note 91, 19 et seq. (29). 162 General Comment No. 15, see note 37, para. 12 (c)(ii). 163 Ibid., para. 12 (c)(iii). 164 Ibid., para. 13. 165 Ibid., para. 12 (c)(iv).


bb. The Right to Sanitation

The sanitation component of the RTWS has received considerably less attention than the water component. Despite the fact that the issue of sanitation was discussed by the CESCR in the course of its delibera-tions regarding General Comment No. 15, it lacks precise and detailed references in this respect.166 The CESCR’s approach was explained by the fact that sanitation was too large an issue to be comprehensively in-cluded without overloading the General Comment and that it would be very difficult to keep the General Comment practical and as simple as possible.167 It is thus not surprising that a lot more uncertainties exist regarding its content.168 This imbalance was also highlighted by the High Commissioner in her report, when she stressed that the normative content of the RTS required further elaboration.169 In 2008 the HRC is-sued Resolution 7/22 and in 2009 Ms Catarina de Albuquerque submit-ted a report to the HRC offering a definition along with obligations that arise from the RTS.170 Next to the report of the Special Rappor-teur,171 in which she draws on the rights and obligations contained in General Comment No. 15 with regard to RTW and argues that these provisions apply equally for the RTS, this is the most recent and com-prehensive document addressing the RTS.

In accordance with the Sub-Commission Guidelines and the inde-pendent experts report, sanitation must be safe, physically accessible, affordable and culturally acceptable.172 Corresponding to General Comment No. 15 this comprises the aspects of availability, quality and

166 Cahill, see note 14, 402. Both paras 29 and 37 (i) of General Comment No.

15, see note 37, refer to “access to adequate sanitation” as a prerequisite for protecting the quality of water resources (cf. para. 29) as well as a method to prevent and control water related diseases (cf. para. 37 (i)).

167 E. Riedel/ J. Moss, Day of General Discussion on the Draft General Com-ment on the Right to Water, CESCR 29th Sess. of 22 November 2002, cited by Cahill, see note 14, 402 et seq.

168 Payen/ Van Waeyenberge, see note 9, 67. 169 Doc. A/HRC/6/3, see note 13, paras 19, 49. 170 According to Ms. Albuquerque sanitation is frequently defined as “a sys-

tem for the collection, transport, treatment and disposal or reuse of human excreta and associated hygiene”, Doc. A/HRC/12/24 of 1 July 2009, para. 63.

171 Doc. E/CN.4/Sub.2/2004/20, see note 40. 172 “In many cultures, to be acceptable, construction of toilets will need to en-

sure privacy”, Doc. A/HRC/12/24, see note 170, para. 80.


accessibility. This means that sanitation facilities must not only be suffi-ciently available in terms of quantity,173 but also of a sufficient and cul-turally acceptable quality, i.e. hygienically and technically safe to use.174 In this respect it is crucial for ensuring sustainability and continued ac-cess that sanitation facilities are cleaned and maintained regularly.175 Regarding the aspect of accessibility, it requires physical access to sani-tation facilities in a location where physical security can be guaran-teed.176 Again this is especially crucial for women since sanitation facili-ties in far away and unsafe locations are a major source of insecurity for women.177 Furthermore, accessibility must be reliable, meaning access night and day.178 As has been outlined in General Comment No. 15 and the Sub-Commission Guidelines with regard to access to water, sanita-tion facilities must also be “supplied at a price that everyone can af-ford”179 and services should be accessible without discrimination.180 Fi-nally, reference is also made to participatory rights entailing the enti-tlement to “seek, receive and impart information” regarding sanitation issues.181

b. Corresponding State Duties

After having determined the content of the RTWS the question of cor-responding duties arises: what steps are states obliged to take in order to fulfill their duties?

173 The Independent Expert Ms. Albuquerque highlights that this also requires

states to ensure that waiting times are not unreasonably long, ibid., para. 70.

174 Cf. Doc. E/CN.4/Sub.2/2004/20, see note 40, para. 49 and Doc. A/HRC/12/24, see note 170, paras 72, 73.

175 Doc. A/HRC/12/24, see note 170, para. 72. 176 This means that sanitation facilities should be within the vicinity of the

household, educational institution, work place or health institution, Doc. E/CN.4/Sub.2/2004/20, see note 40, para. 49.

177 Cf. Doc. E/CN.4/Sub.2/2004/20, see note 40, para. 50. 178 Doc. A/HRC/12/24, see note 170, para. 75. 179 Doc. E/CN.4/Sub.2/2005/25, see note 39, para. 1.3 (d); cf. General Com-

ment No. 15, see note 37, para. 12 (c)(ii). A price is considered affordable if it does not limit people’s capacity to acquire other basic goods and services, Doc. A/HRC/12/24, see note 170, para. 77.

180 Cf. Doc.E/CN.4/Sub.2/2004/20, see note 40, para. 46. 181 Cf. ibid., para. 46. Doc. E/CN.4/Sub.2./2005/25, see note 39, paras 1.3 (d),

8.


The obligations related to the realization of a right largely depend on how a right is categorized.182 International human rights law has de-veloped different categories of rights. Basically it differentiates between civil and political (or liberty rights) and economic, social and cultural rights (or welfare rights).183 The RTWS is generally categorized as a welfare right since its primary legal basis is (still) regarded to be ICESCR. States are required to fulfill economic, social and cultural rights (mostly)184 in a progressive rather than an immediate manner.185 This is laid down in article 2 ICESCR which stipulates that State Parties shall take steps to progressively achieve the full realization of the rights, using their maximum available resources.186 According to the CESCR this entails three types of obligations (on State Parties), namely the ob-ligations to respect, protect and fulfill.187 Hence the CESCR also notes in General Comment No. 15 that the RTW imposes this type of obliga-tion on States Parties.188 On the same line Ms Albuquerque stated in her report that “states are obliged to respect, protect and fulfil human rights as they relate to sanitation.”189

182 Cf. A. Hardberger, “Life, Liberty, and the Pursuit of Water: Evaluating

Water as a Human Right and the Duties and Obligations it Creates”, Northwestern Journal of International Human Rights Law 4 (2005), 331 et seq. (353).

183 Cf. S. Moller Okin, “Liberty and Welfare: Some Issues in Human Rights Theory”, in: J.R. Pennock/ J.W. Chapman (eds), Human Rights Nomos XXIII, 1981, 230 et seq. (237).

184 It should be noted that according to the CESCR some economic, social and cultural rights contain certain elements which can and thus are to be ful-filled immediately, cf. E. Riedel, “International Covenant on Economic, Social and Cultural Rights (1966)”, Max Planck Encyclopedia of Public In-ternational Law, see note 82, para. 7. See also: CESCR General Comment No. 3: The Nature of States Parties Obligations (Art. 2, Para. 1, of the Covenant), Docs E/1991/23, E/C.12/1990/8 of 14 December 1990 Annex III, paras 1, 5.

185 CESCR General Comment No. 3, see note 184, para. 9. With regard to the RTWS this would imply that a state is not necessarily violating the right if it cannot provide its entire population with sufficient access to water and sanitary facilities, as long as it is making every effort in order to realize the right (cf. Tanzi, see note 117, 278) “to the maximum of its available re-sources”, article 2 (1) ICESCR.

186 Cf. article 2 ICESCR; General Comment No. 3, see note 184. 187 Riedel, see note 184, para. 15. 188 General Comment No. 15, see note 37, para. 20. 189 Doc. A/HRC/12/24, see note 170, para. 64.


aa. Respect

The obligation to respect requires states to refrain from any direct or indirect interference with the enjoyment of the RTWS.190 In particular this entails refraining inter alia from measures that limit or deny (equal) access to adequate water/sanitation or water/sanitation services and in-frastructure.191

bb. Protect

Regarding the obligation to protect, states are required to ensure that corporations, groups or individuals do not in any way interfere with the right to water. This requires the development of effective legislative measures to particularly avert the danger that non-state actors, such as private enterprises, might deprive people of their access to water.192 With regard to sanitation, governments must equally establish an effec-tive regulatory framework to prevent any negative impacts on sanita-tion services through private service providers.193 Concomitantly states must also ensure compliance with this framework through, for example, the introduction of penalties for non-compliance.194

cc. Fulfill

The duty to fulfill requires states to take measures that provide indi-viduals with the opportunity to obtain satisfaction of those needs which cannot be secured by their own personal efforts.195 More specifically the obligation to fulfill is made up of three constituent parts: the obliga-tion to facilitate, the obligation to promote and the obligation to pro-vide.196 With regard to the RTWS this means, that states are obliged to (1) “take positive measures to assist individuals and communities to en- 190 Cf. respectively for the RTW General Comment No. 15, see note 37, para.

21. 191 Cf. General Comment No. 15, see note 37, para. 21; Doc. A/HRC/12/24,

see note 170, para. 64. 192 General Comment No. 15, see note 37, paras 23, 24. 193 Doc. A/HRC/12/24, see note 170, para. 64. 194 General Comment No. 15, see note 37, para. 24. 195 A. Eide, “Economic, Social and Cultural Rights as Human Rights”, in: A.

Eide/ C. Krause/ A. Rosas (eds), Economic, Social and Cultural Rights, 2nd edition, 2001, 24 et seq.

196 General Comment No. 15, see note 37, para. 25.


joy the right”; (2) “to take steps to ensure that there is appropriate edu-cation concerning the hygienic use of water, protection of water sources and methods to minimize water wastage”; (3) to make sure that the RTWS is realized in cases where individuals or groups are unable to en-joy the RTWS by the means at their disposal and for reasons beyond their control.197 Accordingly, in cases where individuals/groups can for example not afford service provision, a state would be required to adopt measures to alleviate the problem. Such measures could include the in-stallation of low cost service technologies, provision of income supple-ments or even free water.198

4. Accountability and Implementation

The true value of a human right lies in its effective implementation.199 Apart from a comprehensive regulatory framework, this requires the establishment of accountability mechanisms especially including means of judicial or quasi-judicial implementation. Thus having had a look at the development, scope, content and the legal basis of the RTWS, the following section will turn to more practical questions: in particular, can individuals hold their states accountable for violations of the RTWS? Can the RTWS be subject to litigation and is there an effective complaints procedure? These are crucial questions for ensuring that states respect their obligations with regard to the RTWS and that rec-ognition is not just plain rhetoric. More precisely, right-holders should be authorized to make special claims if the right is threatened or de-nied.200

Apart from individual complaints procedures available for victims of human rights violations, there are also other means to monitor state compliance with the RTWS. The following section shall give a short overview of the judicial and quasi-judicial methods as well as other oversight mechanisms existing on a national and international level that could help ensure the effective implementation of the RTWS.

197 Ibid. 198 Ibid., para. 27. 199 Cf. P. Gleick, “Implementing the Human Right to Water”, in: Riedel/

Rothen, see note 91, 143 et seq. (146). 200 Cf. J. Donnelly, Universal Human Rights in Theory and Practice, 1989, 1.


a. Enforceability on an International Level

The ICESCR draws upon a reporting system in order to monitor the implementation of the rights.201 State Parties are obliged to submit pe-riodic reports for consideration.202 The CESCR then drafts and adopts a set of Concluding Observations in which it lays out the principal sub-jects of concern and any recommendations it might have in this re-spect.203 The reporting system is often criticized for its non-binding na-ture and total reliance on cooperation of State Parties as well as its in-ability to respond to specific individual claims.204 So far the ICESCR lacks an individual or inter-state complaint mechanism.205 Apart from issuing Concluding Observations the CESCR can resort to General Comments,206 by offering an authoritative interpretation of the Cove-nant rights, thereby contributing to a better understanding of treaty ob-ligations. These Comments not only render the reporting procedure more effective but also concomitantly add to a better implementation of the Covenant.207 In relation to compliance with the RTWS, it is General Comment No. 15 which marks the yardstick against which state actions must be measured. Since its adoption the CESCR has continually re-minded State Parties of their treaty obligations pressing them to live up to these commitments.208 Again this does not directly help the individ-ual suffering from a violation of the RTWS.209

201 Article 16 (1) ICESCR. 202 Article 16 (2) ICESCR. 203 M. Craven, “The International Covenant on Economic, Social and Cultural

Rights”, in: R. Hanski/ M. Suksi (eds), An Introduction to the International Protection of Human Rights, 1997, 99 et seq. (112); CESCR, Report of the Eighth and Ninth Session, Doc. E/1994/23, para. 35.

204 Cf. Craven, see note 203, 112 et seq. 205 It should, however, be noted that in December 2008 the General Assembly

adopted an Optional Protocol to the Covenant establishing an individual and inter-state complaints mechanism, see A/RES/63/117 of 10 December 2008. The protocol was opened for signature in 2009. It is not yet in force since it still lacks the sufficient number of ten ratifications according to ar-ticle 18 (1) of the Optional Protocol.

206 Cf. CESCR, Rules of Procedure of the Committee on Economic Social and Cultural Rights, Doc. E/C.12/1990/4/Rev. 1 of 1 September 1993, Rule 65.

207 Riedel, see note 91, 19 et seq. (35 et seq.). 208 OHCHR, “The Right to Water”, Human Rights Fact Sheet No. 35, 2010,

44, available at <http://www.ohchr.org/Documents/Publications/Fact


b. Enforceability on a National Level

A precondition for bringing individual claims before national courts is that states have incorporated the RTWS into their national legislation. As noted above, the RTWS is enshrined in the laws of quite a few coun-tries and even several constitutions. Different analysis of case law on the subject shows that the RTWS is in many instances quite effectively en-forced.210 Court cases protecting the RTWS can be observed worldwide throughout different legal systems.211 These cases address a broad range of aspects relating to the RTWS ranging from service disconnection over tariff structures and questions of accountability to pollution activi-ties.212 Nevertheless the amount of cases also demonstrates that the is-sue is complex and there are still a lot of practical problems opposed to effective national implementation. These are caused inter alia by uncer-tainty due to a lack of proper definition of the scope of the right or de-termination of the authority responsible to oversee implementation. Frequently the implementation is also impeded by insufficient alloca-

Sheet35en.pdf>; Annual Reports of the CESCR available at <http:// tb.ohchr.org/default.aspx?ConvType=18&docType=36>.

209 It can, however, help to underscore their claim, as is demonstrated by the following example from Kathmandu (Nepal): according to WaterAid, a community of slum dwellers who had heard about General Comment No. 15 approached the Nepal Water Supply Cooperation with a copy of the General Comment lobbying for their right. Their campaign proved suc-cessful and resulted in the installation of six water standpipes for their in-formal settlement, D. Morley, “The Right to Water: a Step in the Right Di-rection”, in: Riedel/ Rothen, see note 91, 181 et seq. (183); see also: Du-breuil, see note 129, 26.

210 For an overview and analysis of South African, Argentine and Indian case law see, for example, I. Winkler, “Judicial Enforcement of the Human Right to Water – Case Law from South Africa, Argentina and India”, Law, Social Justice and Development Journal 1 (2008), stating that the case in these three countries could be used as orientation for courts in other coun-tries.

211 Winkler, see note 210, 2. 212 See e.g. on the issue of tariff structures: Lindiwe Mazibuko and others v.

City of Johannesburg and others, Case CCT 39/09 [2009] ZACC 28, Con-stitutional Court of South Africa, 8 October 2009, reprinted in Buffalo Criminal Law Review 3 (2010), 239 et seq.; or on accountability with re-gard to pollution caused through open sewers: Muncipal Council Ratlam v. Vardichand and others, AIR 1980 DC 16222194 – discussed in Dubreuil, see note 129.


tion of adequate human and financial resources.213 Regarding the latter, the Supreme Court of India, for instance, ordered a municipal council to construct drainpipes to address a sanitation problem which was caused by open sewers, thereby overruling the municipal council’s ob-jection based on lack of finances.214 A prominent and frequently cited case which was lately decided by the Constitutional Court in South Af-rica, the so-called Mazibuko et al. v. City of Johannesburg case is also noteworthy.215 Unlike the High Court in first instance as well as the Supreme Court of Appeal, which both considered the amount of free basic water provided per household as insufficient and demanded that it be raised to a specified amount,216 the Constitutional Court judges held that the policy was not in conflict with Section 27 of the Constitution and that it was moreover not for a court to “specify what quantity of water is sufficient water within the meaning of section 27 of the Consti-tution” and that this decision should rather be left to the executive.217 In this regard the Court highlighted the fact that the RTW is to be real-

213 Dubreuil, see note 129, 24. 214 Muncipal Council Ratlam v. Vardichand and others, see note 212. 215 Lindiwe Mazibuko and others v. City of Johannesburg and others, see note

212. In 2006 the residents of Phiri, a community in Soweto, brought a claim before the South Gauteng High Court challenging Johannesburg’s Free Ba-sic Water policy. In particular, they challenged the allegedly insufficient amount of 6,000 liters of free water provided monthly for all households in Johannesburg, as well as the installation of pre-paid water meters, auto-matically cutting off the water supply when the limit was reached. The ap-plicants based their claim on Section 27 of the Constitution and succeeded. The Court declared the city’s Free Basic Water policy to be unreasonable and ruled that it should instead provide 50 liters of free basic water daily. It also declared the installation of pre-paid water meters to be unlawful, since it did, for example, not consider the number of persons living in each household (cf. Media Summary of the Constitutional Court of South Af-rica on the Case of Lindiwe Mazibuko and others v. City of Johannesburg and others, see note 212, available at <http://www.saflii.org>; Mazibuko v. City of Johannesburg High Court of South Africa Witwatersrand Local Division (30 April 2008) (2008) ZAGPHC 106, available at <http:// www.saflii.org>).

216 See Lindiwe Mazibuko and others v. City of Johannesburg and others (South Gauteng High Court 06/13865), see note 212; Lindiwe Mazibuko and others v. City of Johannesburg and others (Supreme Court of Appeal 498/08) [2009] ZASCA 20 (25 March 2009), available at <http://www. saflii.org>.

217 Lindiwe Mazibuko, see note 212, emphasis added, paras 159, 161.


ized progressively and this necessarily implies that it takes time to be fully realized and cannot be put into action immediately.218 Despite this “negative” outcome for the applicants the judgment nevertheless mobi-lized a strong movement campaigning for effective realization of water rights in South Africa.219 Moreover, as the Court states itself, the entire litigation has led the city of Johannesburg to thoroughly review and re-vise its water policies with regard to ensuring progressive achievement of the right of access to sufficient water.220

Finally, it must be acknowledged that the success of judicial mecha-nisms is largely dependent on the level of governance, adherence to the rule of law and institutional capacity of each country.221 In a country used to corruption, inefficient judiciaries and poor governance, the in-corporation of the RTWS into national legislation is often no more than lip-service. A functional judicial system is, however, not the only solu-tion. Even where the RTWS is successfully protected it still requires strengthening at national level since many individuals are often unaware of their rights.222 As already stressed above, awareness raising, access to information and education are important tools that must not be forgot-ten on the road to the effective implementation of the RTWS.223

Apart from judicial or quasi judicial enforcement mechanisms there are also other ways to compel a state to explain its actions and how it is moving towards the realization of the RTWS.224 Such complementary mechanisms include inter alia political instruments such as monitoring and advocacy by independent actors or the development of national policies. In particular, monitoring through benchmark setting or impact assessments by civil society organizations is a promising alternative to-wards pressuring governments to live up to their obligations. Moreover, the development of national water and sanitation policies linked to ac-

218 Ibid., para. 50. 219 E.g. the Coalition Against Water Privatization (CAWP) which closely fol-

lowed and reported on the Mazibuko proceedings, is still strongly cam-paigning for effective implementation of the RTWS in South Africa, see under <http://apf.org.za/spip.php?rubrique41>.

220 Lindiwe Mazibuko, see note 212, paras 40, 95, 97, 168. 221 Björklund/ Sjödin, see note 129, 12. 222 Dubreuil, see note 129, 40 et seq. 223 Ibid. 224 Cf. OHCHR, see note 208, 38.


tion plans helps to monitor the progress of implementation on a na-tional as well as an international level.225

IV. Implications of the RTWS

Before concluding, the following section will briefly explore the impli-cations of a RTWS. This includes the RTWS’s influence on the highly contentious issue of (1) privatizing226 public utilities and (2) on inter-state relations with regard to sharing freshwater resources.

1. Privatization and the RTWS

The primary responsibility pertaining to the provision of water and sewerage networks lies with the state. Nevertheless each country is gen-erally free to choose its form of service provision.227 The last two dec-ades have witnessed an increase in private sector participation with re-gard to the operation of public utilities.228 In particular, the privatiza-tion of water and sewerage services as well as networks is a very con-tentious issue that has caused and still causes quite some social unrest in many countries.229 Privatization is deemed to entail price rises due to

225 Ibid., 39. 226 Privatization entails the partial or total dissolution of state ownership, W.

Vandenhole/ T. Wielders, “Water as a Human Right – Water as an Essential Service: Does it Matter?”, NQHR 26 (2008), 391 et seq. (408 et seq.).

227 On the different forms of service provision see, for example: Report of the Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation, Doc. A/HRC/15/31 of 29 June 2010, para. 4.

228 S. Alam/ P. Mukhopadhaya/ D. Randle, “The General Agreement on Trade in Services (GATS), Water, and Human Rights from the Perspective of De-veloping Countries”, NILR 58 (2011), 43 et seq. (52).

229 A prominent and frequently cited example is the so-called Cochabamba-Case from Bolivia, where the Bolivian government granted a forty-year concession for water and waste-water services to a private company. The company inter alia significantly raised the rates for water which large parts of the population were already struggling with. This was followed by strong and widespread protests from the civil society eventually forcing the Bolivian government to cancel the contract, see E.J. Woodhouse, “The ‘Guerra del Agua’ and the Cochabamba Concession: Social Risk and For-


the introduction of cost recovery measures (through user fees) and the removal of subsidies.230 Moreover, it is feared that in consequence large parts of the population will be faced with disconnections because they can no longer afford the market rate for service provision.231 Albeit this danger has several reasons,232 it can be counteracted by introducing mechanisms such as inter alia public income supplements or sliding tar-iff scales, according to which users are charged with respect to their in-come.233 But what role does the RTWS now have to play in this regard, does it support or oppose privatization?

Human rights are generally neutral with regard to political and eco-nomic systems.234 Accordingly they do not predicate a particular form of service provision.235 This approach is also reflected by international declarations and legal material pertaining to the RTWS, all taking a quite neutral stance when it comes to the question of privatization. However, they emphasize the fact that governments cannot rid them-selves of their human rights obligations,236 in this case of the obligations related to the RTWS. Thus when governments decide to place water and sanitation services into the hands of private actors they must ensure

eign Direct Investment in Public Infrastructure”, Stanford J. Int’l L. 29 (2003), 295 et seq.

230 Vandenhole/ Wielders, see note 226, 409. 231 See M. Kothari, “Obstacles to Making Water a Human Right”, in: Riedel/

Rothen, see note 91, 150 et seq. Similar concerns have also been expressed by the CESCR in its considerations of state reports, cf. CESCR, Conclud-ing Observations: Morocco, Doc. E/C.12/MAR/CO/3 of 4 September 2006, para. 26; CESCR, Concluding Observations: Benin, Doc. E/C.12/1/Add.78 of 5 June 2002, para. 22.

232 Specifically, the connection of impoverished (remote) areas without suffi-cient existing infrastructure to the water and sewerage network is a cost-intensive measure that could quickly deter private investors from this un-dertaking, cf. E.B. Bluemel, “The Implications of Formulating a Human Right to Water”, Ecology Law Quarterly 31 (2004), 957 et seq. (964).

233 Cf. McCaffrey, see note 93, 106 et seq.; H. Smets, “Economics of Water Services and the Right to Water”, in: Brown-Weiss et al., see note 93, 173 et seq. (179), who gives the example of Chile and Belgium where the prices are held low through subsidies (Chile) and cross-subsidies (Belgium).

234 CESCR, General Comment No. 3, see note 186, para. 8. 235 Doc. A/HRC/6/3, see note 13, para. 52. 236 Cf. General Comment No. 15, see note 37, para. 23; Doc. A/HRC/6/3, see

note 13, para. 52; Doc. A/HRC/15/31, see note 227, para. 18.


that the RTWS is safeguarded.237 This has also been underscored by the CESCR in its General Comment No. 15 where it reads that the “failure to effectively regulate and control water services providers” is qualified as a violation of the RTW[S].238

Generally what happens with regard to state obligations is a shift in emphasis from the obligation to fulfill towards the obligation to pro-tect.239 Where the provision of public utilities is operated or controlled by private actors, states are required to establish an effective regulatory system, “which includes independent monitoring, genuine public par-ticipation and imposition of penalties for non-compliance”.240 In es-sence, privatization and the RTWS are reconcilable and there is at least no formal contradiction between them.241 On the contrary, General Comment No. 15 as well as the Guissé’s and Albuquerque’s Reports openly address the issue of privatization.242 What seems to be clear is that service provision needs to be measured against the obligations set out by the RTWS and that it is because of the RTWS that a state must ensure that its population has access to basic water and sanitation facili-ties.

2. Transboundary Waters and the RTWS

Generally speaking human rights have no extraterritorial impact and can only be invoked by individuals in respect of the conduct of their own government.243 Nevertheless, although it might seem odd at first glance, the developments regarding the RTWS have to a certain extent 237 Cf. McCaffrey, see note 93, 104. 238 CESCR, General Comment No. 15, see note 37, para. 44 (b)(ii). General

Comment No. 15 only refers to violations of the RTW. The RTS can, how-ever, be infringed on equal grounds.

239 Vandenhole/ Wielders, see note 226, 410. 240 General Comment No. 15, see note 37, para. 24. 241 J. Budds/ G. McGranahan, “Are the Debates on Water Privatization Miss-

ing the Point? Experiences from Africa, Asia and Latin America”, Envi-ronment & Urbanization 15 (2003), 87 et seq. (95).

242 General Comment No. 15, see note 37, para. 24; Final Report of the Special Rapporteur Guissé, Doc. E/CN.4/Sub.2/2004/20, see note 40, para. 57; Doc. A/HRC/15/31, see note 227, paras 6 et seq.

243 McCaffrey, see note 99, 19. On this issue in general see: N. Wenzel, “Hu-man Rights, Treaties, Extraterritorial Application and Effects”, Max Planck Encyclopedia of Public International Law, see note 82.


influenced inter-state relations specifically with regard to the sharing of transboundary freshwater resources. International water law provides for a safeguard against neglecting the vital importance of water for hu-mans when states negotiate a water sharing agreement.244 For instance, the 1997 U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses245 calls upon states, when reconciling a conflict between different uses, to give “special regard … to the re-quirements of vital human needs.”246 Even though the rules governing this particular field of law have not been devised as individual rights, but relate to obligations of governments, they do express the basic idea behind the RTWS, that is, in making allocation decisions states should pay attention to vital human needs.247 In fact one can perceive a new tendency in younger international (sharing) agreements to even explic-itly refer to the RTWS. As mentioned earlier in this article,248 the river charters of the Senegal and Niger rivers249 are particularly noteworthy in this respect since they both incorporate the RTW into the respective sharing agreement. Similarly the UNECE Protocol on Water and Health to the 1992 Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes has the declared aim of providing access to drinking water and sanitation for everyone.250

244 McCaffrey, see note 93, 100 et seq. On the issue of international water law

in general see id., The Law of International Watercourses, 2007. 245 Convention on the Law of the Non-Navigational Uses of International

Watercourses, not yet entered into force, reprinted in ILM 36 (1997), 700 et seq. The Convention was based on a draft prepared by the ILC (cf. ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses and Commentaries Thereto, 1994, GAOR 49th Sess., Suppl. 10, 195 et seq.) and is a framework agreement which was adopted by A/RES/51/229 of 21 May 1997. It has so far not entered into force but large parts of its provisions seem to reflect customary law in the field of the law of international watercourses, S.C. McCaffrey, “International Water-courses”, Max Planck Encyclopedia of Public International Law, see note 82, para. 10.

246 Watercourse Convention, see note 245, article 10 (2). 247 McCaffrey, see note 93, 100 et seq. 248 See III. 1. b. aa. above. 249 Charte des Eaux du Fleuve Sénégal, Senegal River Charter, see note 109; La

Charte de L’eau du Basin Niger, Niger River Charter, see note 111. 250 UNECE Protocol on Water and Health to the 1992 Convention on the

Protection and Use of Transboundary Watercourses and International Lakes, reprinted in: ILM 38 (1999), 1708, article 6 (1).


Moreover, under the title “international obligations” the CESCR has also taken up this issue in its General Comment No. 15 in which it instructs states to “ensure that the right to water is given due attention in international agreements ...”.251 Furthermore, it calls on states “to re-frain from actions that interfere, directly or indirectly, with the enjoy-ment of the right to water in other countries …” and that “[a]ny activi-ties taken within the State party’s jurisdiction should not deprive an-other country of the ability to realize the right to water for persons in its jurisdiction.”252

In sum, being a human right, the RTWS cannot be invoked between co-riparians. Thus it does not give one state (or respectively the indi-viduals of that state) the right to claim a sufficient quality and quantity of water from another state. Nevertheless, the RTWS is making its way into modern international water law, thereby increasing its impact on inter-state relations.

V. Conclusion

The RTWS is clearly guaranteed under international human rights law. It is primarily rooted in the ICESCR but also finds support in various other international (legal) documents, as shown above.253

A new development, however, is the increasing attention that has lately been accorded to this issue, alongside the new frequency with which it is being addressed.254 While the RTWS was barely an issue un-til the breakthrough of General Comment No. 15 in 2002, it has man-aged to hold something of a place on national and international agendas ever since.

Yet a new impulse was recently provided by A/RES/64/929 which was closely followed by HRC Resolution 15/9 of 6 October 2010.255 For the time being one can only speculate about the impact of these 251 CESCR, General Comment No. 15, see note 37, para. 35. 252 Id., see note 37, para. 31. 253 As already stated by Rudolf, see note 26, 42. 254 See e.g. International Year of Sanitation, see note 50; Doc. A/HRC/15/31,

see note 227; Doc. A/RES/64/292, see note 6; Doc. A/HRC/RES/15/9, see note 56; Doc. E/C.12/2010/1, see note 8; Doc. A/HRC/16/L.4, see note 52; Council of Europe, Parliamentary Assembly Resolution on Water, Resolu-tion 1809 of 15 April 2011.

255 Dubreil, see note 129.


resolutions. In the light of HRC Resolution 16/L.4 of 18 March 2011,256 which renewed Ms. Albuquerque’s mandate as an independent expert,257 it would certainly go too far to assume that these resolutions should have marked the end of a process regarding the RTWS on UN level.258 Whether they will conversely speed up implementation efforts can at present not be foreseen. With regard to the 884 million people lacking access to drinking water and 2,6 billion lacking access to sanita-tion this can, however, only be hoped. The renewal of Ms. Albuquer-que’s mandate is welcomed since there are still a lot of unanswered questions surrounding the RTWS which impede its effective implemen-tation.

First and foremost, the imbalance between the two components of the RTWS (RTW and RTS) needs to be adjusted. Even if the parameters of a RTS can for a great part be determined in analogy to General Comment No. 15 and recourse to the Sub-Commission Guidelines, they have so far not been clearly enough defined. There is no document comparable to General Comment No. 15 which exists for the RTS. Al-though the CESCR issued a Statement on the Right to Sanitation in November 2010259 this is far from being comprehensive and certainly does not have the same authoritative weight as a General Comment. Also the question of the status of the RTWS remains unclear – can the RTWS be regarded as a right on its own? Closely related to this ques-tion is the debate spurred especially by NGOs some years ago about a human rights Convention codifying the RTWS.260 Specifically, a bind-ing treaty would provide the RTWS with a clear and firm legal basis.

Next to deciding the question of status, such a Convention would also underscore that states are genuinely committed towards imple-menting the RTWS. Nevertheless, this campaign needs to be treated 256 Doc. A/HRC/16/L.4, see note 52. 257 Ibid., para. 4. 258 See, for instance, Furch, see note 49, 45. 259 Doc. E/C.12/2010/1, see note 8. 260 See for example: Blue Planet Project, “The Right to Water: The Campaign

for a United Nations Treaty”, available at <www.blueplanetproject.net>; Friends of the Right to Water, “Key Principles for an International Treaty on the Right to Water”, 2005, available at <www.blueplanetproject.net>; Alliance Sud, “Why we need an International Water Convention”, 2004, available at <http://www.alliancesud.ch>; Green Cross International, “Fundamental Principles for a Framework Convention on the Right to Water”, 2005, available at the Peace Palace Library under <www.ppl.nl/ bibliographies/water/files/4648.pdf>.


with caution.261 The drafting of a human rights treaty has never been easy and its outcome is often not what was initially envisaged.262 States are often very reluctant when it comes to legally binding obligations and a treaty could in the end be less precise than General Comment No. 15.263 Whatever will happen, the implementation of the RTWS has to be expedited and strengthened. It is an undeniable fact that “the violation of the human right to clean water and sanitation is destroying human potential on an epic scale.”264 States should thus stop merely expressing their concern when faced with the alarming figures and instead take ac-tion. In this respect General Assembly Resolution 64/292 certainly marks a historic step in the right direction, which needs further action.

261 Cf. Riedel, see note 91, 33-35; Rudolf, see note 26, 42. 262 Id., see note 91, 33-35. 263 Rudolf, see note 26, 42. 264 UNDP, Human Development Report 2006, see note 4, 1 et seq. (27).

The Internal Dispute Resolution Regime of the United Nations

Has the Creation of the United Nations Dispute Tribunal and United Nations Appeals Tribunal Remedied the Flaws of the United Nations Administrative Tribunal?

Rishi Gulati 1



Preface I. The Pre-Reform Internal Dispute Resolution Mechanism: Its

Weakness and its Legacy 1. Introduction 2. The Pre-Reform System: The Initial Stage of a Dispute

a. Disciplinary Cases b. Non-Disciplinary Cases

aa. Requirement of an Administrative Decision bb. Initial Steps in Contesting an Administrative Decision

c. Problems with the Initial Remedial Methods of Formal Re-view in the Pre-Reform Regime

3. The United Nations Administrative Tribunal – UNAT a. Outline of the UNAT Regime

aa. A Brief History bb. Jurisdiction and Receivability cc. Appointment of Judges dd. Other Provisions Relevant to Due Process Issues ee. Remedies at UNAT

b. Analysis of the UNAT Regime aa. Right to Appeal bb. The Issue of Oral Hearings cc. Access to Legal Representation dd. Independence of the Judicial Institution

c. UNAT’s Legacy 4. Conclusion

II. The New System of Internal Dispute Resolution at the United Nations 1. Introduction 2. The Introduction of the New System 3. The Formal Regime of Internal Justice

a. Disciplinary Matters: Does the New Regime Remedy the Flaws of the Old System?

b. Non-Disciplinary Matters aa. Management Evaluation bb. Non-Disciplinary Matters: Does the New Regime

Remedy the Flaws of the Old System? 4. The New Judicial Institutions at the United Nations

a. UNDT’s Statute b. The Appeals Tribunal’s Statute

5. Some Observations on the Statutes of UNDT and the Appeals Tribunal a. Access to the New Tribunals

Gulati, The Internal Dispute Resolution Regime of the United Nations 491

b. Judicial Experience c. Some Due Process Issues

aa. Oral Proceedings bb. Legal Representation

6. Some Final Remarks on the New System of Internal Justice 7. The Informal Dispute Resolution System

a. The Pre-Reform Informal Dispute Resolution System b. The Post-Reform Informal Dispute Resolution System

III. Conclusion

Preface

As the United Nations enjoys jurisdictional immunities in national courts and thus cannot be sued domestically, it has set up an internal justice system to resolve disputes including those that involve discipli-nary action.2 Until recently, the UN’s internal justice system has been

1 I thank Prof. Niels Blokker and Assistant Prof. Philippa Webb for their in-

valuable comments on the drafts of this paper which has been adapted from the author’s Master Thesis. Of course, all errors are mine.

2 For the legal basis of the establishment of UNAT, see the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, ICJ Reports 1954, 47 et seq. (57), the immunities of International Organi-zations lie in the justification that they need to be “protected from undue interference in their own affairs by states. Such protection is afforded by granting them privileges and immunities. In other words … the raison d’être of privileges and immunities of international organizations is their functional necessity: their existence is necessary for the independent exer-cise of its functions by an international organization”, see H.G. Schermers/ N.M. Blokker, International Institutional Law, 2003, section 324; see also generally, J.L. Kunz, Privileges and Immunities of International Organiza-tions, AJIL 41 (1947), 828 et seq.; for an excellent analysis of UN immuni-ties see A.J. Miller, “The Privileges and Immunities of the United Nations”, International Organizations Law Review 6 (2009), 7 et seq.; see also A. Reinisch, The Immunity of International Organizations and the Jurisdic-tion of their Administrative Tribunals, Institute for International Law and Justice, Working Paper 2007/11 (Global Administrative Law Series), 3, where the author observes: “more and more national courts are equally looking at the availability and adequacy of alternative dispute settlement mechanisms. Some of them have even concluded that the non-availability of legal protection through an administrative tribunal or the inadequacy of


subject to severe criticism, and pursuant to A/RES/59/283 of 13 April 2005 titled Administration of Justice at the United Nations, the Secre-tary-General established the Redesign Panel on the United Nations Sys-tem of Administration of Justice (Redesign Panel), which was charged with redesigning the system of the administration of justice at the United Nations. It was created to address the gravity of the issues that arose out of the immense challenges posed by the management of inter-nal disputes.

The Redesign Panel found that the system of internal justice was unprofessional, lacked independence, was ineffective, did not accord staff members their due process rights, and the staff had little or no con-fidence in it.3 As the United Nations is the body charged with the pro-tection of the global order, it is ironic that its internal justice system was found to be in manifest violation of the rights of its own employees. Af-ter years of effort towards reform, a new system of the administration of justice became operational on 1 July 2009.

Judging the success of an internal justice system when it is in its in-fancy is perhaps unfair. However, it is an apt opportunity to make some initial observations about its workings. The primary purpose in doing so is to determine whether or not the new system of internal justice remedies the flaws of the old regime that was subject to severe condem-nation. In order to do this it is critical to understand how the former regime operated, and why it was criticized. Consequently, it is neces-sary to devote close attention to the working of the old regime before discussing the new one.4

Part I. of this article therefore will analyze the old system, which is also referred to as the pre-reform system. The discussion not only will consider the weaknesses of the now abolished United Nations Adminis-trative Tribunal (UNAT), but engage in an analysis of the dispute reso-

the level of protection afforded by internal mechanisms justify a with-drawal of immunity in order to avoid a denial of justice.”

3 Established by A/RES/59/283 of 13 April 2005, paras 47 et seq. See further Report of the Redesign Panel on the United Nations System of Admini-stration of Justice, Doc. A/61/205 of 28 July 2006, para. 5. See in this re-spect also the article by A. Reinisch/ C. Knahr, “From the United Nations Administrative Tribunal to the United Nations Appeals Tribunal – Reform of the Administration of Justice System within the United Nations”, Max Planck UNYB 12 (2008), 447 et seq.

4 In this respect the paper departs from the above mentioned one by Rei-nisch/ Knahr. The focus there was different.


lution process from the very inception of a dispute in order to conduct a holistic analysis.

Part II. will mirror the path taken in Part I., but in relation to the new dispute resolution machinery. The analysis will include a brief con-sideration of the new tribunals that have been established, the United Nations Dispute Tribunal (UNDT) and the appellate instance the United Nations Appeals Tribunal (Appeals Tribunal). A brief discussion is devoted to specific areas in which the new system can be improved further. The main focus of the article will be the formal process of dis-pute resolution. However, informal dispute resolution will also be briefly discussed.

I. The Pre-Reform Internal Dispute Resolution Mechanism: Its Weakness and its Legacy

1. Introduction

Prior to the establishment of international administrative tribunals, in-ternal disputes of international organizations (IOs) were usually finally settled by the administrative decision of an executive organ with or without an appeal to the legislative or deliberative organ.5 As will be shown, even in the present model of dispute resolution, the first reme-dial step is generally taken by an executive organ. In the UN context, UNAT was at the top of the pyramid of this formal system, and it is es-sential to briefly look at the internal formal recourse procedures from the very beginning before honing in on the functioning of UNAT to provide context to the kinds of cases, and the circumstances in which that tribunal could exercise its jurisdiction.

5 C.F. Amerasinghe, Principles of the Institutional Law of International Or-

ganizations, 2005, 2nd revised edition, 489. See generally id., The Law of the International Civil Service, Vol. 1, 1994, 2nd revised edition, 26 et seq.


2. The Pre-Reform System: The Initial Stage of a Dispute

a. Disciplinary Cases

Pursuant to old Staff Regulation 10.(2)6 the Secretary-General was em-powered to impose disciplinary measures, such as demotion or termina-tion of employment7 on staff members whose conduct was found to be unsatisfactory.8 Under old Staff Rule 110.(1) unsatisfactory conduct in-cluded failure by a staff member to comply with his or her obligations under the Charter of the United Nations, the Staff Regulations and Staff Rules or other relevant administrative issuances, or to “observe the standards of conduct expected of an international civil servant.”9 Ex-amples of unsatisfactory conduct include unlawful acts (e.g. theft, fraud, possession or sale of illegal substances, smuggling) on or off UN prem-ises; misrepresentation; and misuse of UN equipment etc.10

As regards the stages of disciplinary proceedings, following an in-vestigation, if the facts appeared to indicate that misconduct had oc-curred, the matter was referred to the now abolished Joint Disciplinary Committees (JDCs) for advice which was non-binding in character.11 Under old Staff Rule 110.(5), standing JDCs were established at Head-quarters, and further, comparable standing committees could be estab-lished at other prescribed United Nations Offices. The Secretary-General could also establish ad hoc JDCs at various duty stations for a particular case.

Pursuant to old Staff Rule 110.(6), JDCs comprised inter alia, mem-bers appointed by the Secretary-General and there was no requirement 6 Staff Regulation 10.1(a) now enshrines the corresponding Staff Regulation

currently in effect (some old rules and new rules are similar, so whenever the author refers to an old rule that can be found in the new rules, but which has a different number, the term “corresponding provision” is used). The old Staff Regulations of the United Nations (Staff Rules – 100 Series) are contained in Doc. ST/SGB/2002/1 of 1 January 2002; the current Staff Regulations and Provisional Staff Rules can be found in Doc. ST/SGB/2009/7 of 16 June 2009.

7 Old Staff Rule 110.3; for the corresponding provision currently in force, see Provisional Staff Rule 10.2.

8 Old Staff Regulation 10.2 empowered the Secretary-General to summarily dismiss for “serious misconduct”.

9 For the corresponding provision, see Provisional Staff Rule 10.1(a). 10 Administrative Instruction Doc. ST/AI/371 of 2 August 1991, para. 2. 11 Old Staff Rule 110.4(b); see also Old Staff Rule 110.7.


as to any legal qualifications for these members. Under old Staff Rule 110.(7)(b), proceedings before them were normally limited to the origi-nal written presentation of the case, together with statements and rebut-tals, which could be made orally or in writing. If a JDC considered that it required the testimony of the staff member concerned or of other witnesses, “at its sole discretion”, it could obtain such testimony by written deposition or by personal appearance before it.12 Old Staff Rule 110.(4) enshrined a due process requirement in relation to disciplinary proceedings, and it stated that no disciplinary proceedings may be insti-tuted against a staff member unless he/she has been notified, in writing, of the allegations against him/her, and of the right to seek the assistance of counsel for his/her defense at his/her own expense, and has been given a reasonable opportunity to respond to those allegations. Admin-istrative Instruction Doc. ST/AI/371 of 2 August 1991 described the stages of a disciplinary proceeding. Respecting the due process re-quirement, it stated inter alia,

“The proceedings of the Joint Disciplinary Committee and its rules of procedures shall be consistent with due process, the fundamental requirements of which are that the staff member concerned has the right to know the allegations against him or her; the right to see or hear the evidence against him or her; the right to rebut the allega-tions and the right to present countervailing evidence and any miti-gating factors. If the Committee decides to hear oral testimony, both parties and counsel should be invited to be present.”13 The final decision was taken by or on behalf of the Secretary-

General following the non-binding advice of the JDC.14 A staff member could appeal the Secretary-General’s decision respecting disciplinary measures to UNAT.15 While the regime attempted to enshrine certain due process standards, it lacked certain key features necessary to com- 12 Old Staff Rule 110.7(b). 13 There existed a due process requirement that included informing the con-

cerned staff member about his/her right to a counsel if a case was to be pursued. See, Report of the Secretary-General: Practice of the Secretary-General in Disciplinary Matters and Possible Criminal Behavior of 1 July 2008 to 30 June 2009, Doc. A/64/150, para. 9.

14 Administrative Instruction Doc. ST/AI/371 of 2 August 1991, para. 22. 15 Article XI of the Old Staff Regulations that required the Secretary-General

to create an appeal mechanism, and pursuant to Old Staff Regulation 11.2, there existed a right of appeal to UNAT arising out of non-observance of the terms of appointment of a staff member, including relevant Regulations and Rules.


ply with a staff member’s procedural rights. The absence of certain due process safeguards was widely prevalent in the old system.

b. Non-Disciplinary Cases

aa. Requirement of an Administrative Decision

The Secretary-General was required to “establish administrative ma-chinery with staff participation to advise him or her in case of any ap-peal by staff members against an administrative decision alleging the non-observance of their terms of appointment.”16 Thus, before a staff member could contest an adverse decision via the machinery set-up by the Secretary-General, it was necessary that the relevant decision be classified as an “administrative decision.” According to UNAT in An-dronov,

“an ‘administrative decision’ is a unilateral decision taken by the administration in a precise individual case (individual administrative act), which produces direct legal consequences to the legal order … Administrative decisions are therefore characterized by the fact that they are taken by the Administration, they are unilateral and of in-dividual application, and they carry direct legal consequences. They are not necessarily written, as otherwise the legal protection of the employees would risk being weakened in instances where the Ad-ministration takes decisions without resorting to written formali-ties.”17 This view seemed to have changed as in Luvai,18 while the appli-

cant’s case was rejected, the Judge, in relation to the meaning of an ad-ministrative decision stated,

“Much as I agree that an administrative decision is one done unilat-erally by the Administration, I am not compelled by the reasoning that for a decision or an act to be defined as an administrative deci-sion, it must be of individual application. Where the act of the Ad-ministration complained of affects an individual even though not ex-

16 Old Staff Regulation 11.1. 17 Andronov, UNAT No. 1157 (2004) of 30 January 2004, para. V. 18 Luvai v. Secretary-General of the United Nations, UNDT Judgment No.

UNDT/2009/074 of 16 November 2009.


clusively, it is my view that the individual has locus standi and can bring an action.”19 Similarly, in Teferra,20 the Judge endorsed the above, and stated, “given the nature of the decisions taken by the Administration, there cannot be a precise and limited definition of such a decision. What is or is not an administrative decision must be decided on a case by case basis and taking into account the specific context of the surrounding circumstances when such decisions were taken.”21 With due respect to the above reasoning, an “administrative deci-

sion” can and should have a precise meaning to ensure legal certainty in the definition of terms. Legal principles do not operate in a vacuum, and neither will the definition of an “administrative decision”. In the context of administrative decisions, the manner in which a particular definition is applied in the specific circumstances of a case will eventu-ally determine whether or not a particular decision has individual appli-cation or not. The Andronov reasoning does not exclude the possibility of a decision having individual and communal application simultane-ously. As long as the decision has an individual application, the decision is likely to constitute an “administrative decision”. Thus, there was no real need to express dissatisfaction with Andronov as it appears to en-shrine the definition of an “administrative decision” which seems to be consistent with the reasoning of other tribunals on the issue.22 Several cases at the newly established UNDT have, however, endorsed An-dronov,23 and recently, the also newly established Appeals Tribunal ap- 19 Ibid., para. 36. 20 Teferra v. Secretary-General of the United Nations, UNDT Judgment No.

UNDT/2009/090 of 17 December 2009. 21 Ibid., para. 9. 22 See e.g. re Horsman and Ors v. Eurocontrol Agency, ILOAT No. 1203 of

15 July 1992, para. 2, here it was stated: “a decision is any act by the defen-dant organisation that has an effect on an official’s rights and obligations”; an administrative decision is a decision by the administration concerning a staff member’s terms of appointment, including all pertinent regulations and rules, which must be communicated to the staff member in writing and which must apply personally to him or her, thus causing imminent and ac-tual effects on the staff member’s terms of appointment. See Doc. JIU/REP/2000/1, Administration of Justice at the United Nations, para. 42.

23 See for example Hocking, Jarvis, McIntyre, UNDT Judgment No. UNDT/2009/077 of 20 November 2009, Planas, UNDT Judgment No. UNDT/2009/086 of 10 December 2009, see also cases cited in the second


pears to have endorsed Andronov as well.24 The above is a critical issue as it bears direct relevance to receivability. Future jurisprudence is likely to further clarify the extent to which, if any, the newly established UNDT and Appeals Tribunal depart from the definition of an “admin-istrative decision” as expounded in Andronov.25

bb. Initial Steps in Contesting an Administrative Decision

The first step in the contestation of an administrative decision involved lodging a request for an administrative review by writing a note ad-dressed to the Secretary-General setting out the reasons why the deci-sion was wrong, and the decision-maker could provide comments if he/she chose to maintain the decision.26 If a collaborative resolution or settlement between the concerned staff member and the administration did not resolve the dispute, or the concerned staff member did not re-ceive a response within the specified time-limit, the staff member was entitled to file an appeal at a Joint Appeals Board (JAB).27 Old Staff Rule 111.(1) dealt with the JAB. JABs were established in New York, Geneva, Vienna, Nairobi and could be established at designated duty stations as well. A JAB comprised inter alia, members appointed by the Secretary-General, and there was no requirement that JAB members possess legal qualifications. A staff member could “arrange to have his or her appeal presented to the [JAB] panel on his or her behalf by an-other serving or retired staff member.”28 The JAB, at its discretion, was empowered to invite the official who took the contested decision to ex-

activity report of the Office of Administration of Justice, 1 July 2009 – 30 June 2010, 77, <http://www.un.org/en/oaj/unjs/resource.shtml#Activity Reports>.

24 Tabari v. Commissioner General of the UN Relief and Works Agency for Palestine Refugees, UN Appeals Tribunal-030 of 30 March 2010, 18.

25 The UN Appeals Tribunal did not address the issue of receivability and stated: “Because in this case the result is the same either way, we save for another day the question of whether the original application was receiv-able. We neither affirm nor reverse UNDT’s finding on that issue. But we caution that someone who did not even apply for a position has a heavy burden to contest the result of the process.” See also Luvai v. Secretary-General of the United Nations, UN Appeals Tribunal-014 of 30 March 2010.

26 Information Circular Doc. ST/IC/2004/4 of 23 January 2004, para. 22. 27 Old Staff Rule 111.2(a)(ii) and (d). 28 Old Staff Rule 11.2(i).


plain it at a hearing, and the JAB considered the case and made non-binding recommendations to the Secretary-General.29 Allegedly, as a matter of practice, unanimous recommendations were normally ac-cepted, unless there was a compelling reason in law or policy not to do so.30 The concerned staff member could appeal the final decision to UNAT,31 and the tribunal’s judgment on the case was final.32

c. Problems with the Initial Remedial Methods of Formal Review in the Pre-Reform Regime

As will be discussed later on in detail, the initial steps to seek review have now been completely transformed. For example, in disciplinary matters, the Secretary-General may impose a sanction without any ad-vice. The concerned staff member may appeal the decision directly to the newly established UNDT.33 In relation to the administrative review, now, a staff member is required to seek a management evaluation as a first step. Both the JABs as well as the JDCs have been abolished.34 Given the complete overhaul of the old system only the most funda-mental problems with the initial steps that were required in seeking re-view will be noted here.

The critical problem with the pre-reform system related to the ab-sence of due process safeguards in relation to many aspects of that re-gime. The rule of law, in the context of administrative law, gives rise to a set of due process principles which include the right to be heard by or make representations to an impartial adjudicator; the right to appeal; and the right to a reasoned decision.35 The old system was deficient in providing the above-mentioned due process guarantees. A major diffi-culty with the initial stages of review related to the character of the ad-visory bodies, namely, the JDCs and the JABs. As has been shown, nei-ther of those bodies was empowered to take binding decisions. Those

29 Old Staff Rule 111.2(p). 30 Information Circular, see note 26, para. 23. 31 Old Staff Regulation 11.2. 32 Information Circular, see note 26, para. 24. 33 Secretary-General’s Bulletin Doc. ST/SGB/2009/11 of 24 June 2009, Tran-

sitional Measures related to the Introduction of the New System of Ad-ministration of Justice, para. 3.

34 Ibid., para. 2. 35 C. Harlow, “Global Administrative Law: The Quest for Principles and

Values”, EJIL 17 (2006), 190 et seq.


bodies could only make recommendations and consequently could not determine the rights or obligations of the persons concerned.36 As a re-sult, the old UNAT regime was rendered as a one-tier justice system with no right to appeal. But the right to an appeal constitutes a funda-mental aspect of due process.37

Furthermore, the members of the JABs and the JDCs were ap-pointed by the Secretary-General who was often a respondent in the proceedings as an embodiment of the United Nations. Due to the fact that the JABs and JDCs were composed of staff members acting in an advisory capacity to the Secretary-General, and were volunteers who performed that role in addition to their other responsibilities,38they cannot be said to be objectively independent. It is a fundamental right that a person has access to an impartial court or tribunal to seek the protection of his/her fundamental rights.39 The JABs and JDCs objec-tively did not constitute an impartial and competent tribunal and this

36 It was considered contrary to the Charter to render JDCs and JABs rec-

ommendations binding as pursuant to the terms of Article 97 of the UN Charter. Further, as early as 1994, there were suggestions that the JABs should be transformed into a semi-judicial body with arbitrators as mem-bers. However, the suggestion failed for several reasons, see Report of the Secretary-General: Administration of Justice at the United Nations, Doc. A/56/800 of 13 February 2002, para. 15.

37 See e.g., article 7 of the African Charter on Human and Peoples’ Rights that states inter alia: “Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national or-gans against acts of violating his fundamental rights as recognized and guaranteed by conventions … (d) the right to be tried within a reasonable time by an impartial court or tribunal.”; the Redesign Panel stated at para. 10: “When ‘in the determination of ... his rights and obligations in a suit at law’ an individual is deprived of the right to appeal, this severely weakens the fairness of the procedure. International standards establish the right to ‘an effective remedy’, ‘the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal’ and ‘the right to an appeal’”. For a discussion of the right to appeal see generally L. O’Neill/ G. Sluiter, “The Right to Appeal a Judgment of the Extraordinary Cham-bers in the Courts of Cambodia”, Melbourne Journal of International Law 10 (2009), 596.

38 Redesign Panel, see note 3, para. 63. 39 Article 25 of the American Convention on Human Rights states inter alia:

“Everyone has the right to simple and prompt recourse, or any other effec-tive recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights …”.


was especially relevant as there existed only one layer of judicial appeal after the Secretary-General made an adverse finding.

The issue of delay also adversely affected the efficient functioning of the internal justice system. Generally, it took more than a year to im-plement disciplinary measures, and as the advisory bodies had a com-mon secretariat and priority was given to disciplinary matters, there were inordinate delays in the proceedings. It took an average of three years e.g. to conclude a case at a JAB.40 Furthermore, as discussed ear-lier, the rules did not provide for a requirement of legal qualifications for JAB and JDC members, and as a result, their reports were often of poor quality, and were frequently rejected.41 This gave staff members the perception that the system worked against them.42 As was noted by the Redesign Panel, “That the administration of justice in the United Nations lags so far behind international human rights standards is a matter of urgent concern requiring immediate, adequate and effective remedial action.”43

Moreover, while in theory a staff member could seek legal assistance from the Panel of Counsel at various stages of the dispute, in practice, the system did not work. A significant number of staff members could not access legal representation and their due process right to the right of equality of arms was compromised.44 At field duty stations, staff mem-bers were unaware of the existence of the Panel of Counsel which in theory provided legal services, and the distances and logistics involved in any case made it impracticable to seek such advice.45 In relation to the presentation of claims, and equality of arms, the Redesign Panel said that to guarantee due process and to facilitate decisions, and to guaran-tee equality before courts and tribunals, “access to lawyers and legal services is crucial.”46

40 Redesign Panel, see note 3, para. 67. 41 Information Circular, see note 26, para. 23. 42 Redesign Panel, see note 3, para. 68. 43 Ibid., para. 11. 44 Ibid., para. 10. 45 Ibid., para. 23. 46 Ibid., para. 10.


3. The United Nations Administrative Tribunal – UNAT

a. Outline of the UNAT Regime

aa. A Brief History

The question of the establishment of an Administrative Tribunal for the United Nations was considered as early as 1945 by the Preparatory Commission of the United Nations.47 The Preparatory Commission, in 1945, recommended that an Administrative Tribunal be created.48 The issue was considered by various committees during the second and third session of the General Assembly,49 and on 21 September 1949, at the fourth session, the Secretary-General submitted his Report on the Establishment of the United Nations Administrative Tribunal50 which contained inter alia, a Draft Statute of that tribunal. On 8 November 1949, following the consideration of the Draft Statute, the Fifth Com-mittee approved the draft and recommended it for adoption to the General Assembly.51 The General Assembly considered the Report, and pursuant to its Resolution 351 (IV) of 24 November 1949, the United Nations Administrative Tribunal came into existence.52 The reasons for the creation are best captured in the statement, “The United Nations is not suable in any national court without its consent; nor can it be sued 47 For a summary of the process of the creation of UNAT, see Amerasinghe,

see note 5, The Law of the ... , 54-57; for the early work of the Executive Committee see Doc. PC/EX/113/Rev.1 of 12 November 1945, 83.

48 “An Administrative Tribunal should be established at an early date. It should be competent to adjudicate on any dispute arising in connection with the fulfillment of an official’s contract. The Secretary-General should be authorized to appoint a small advisory committee, possibly including representatives of the staff, to draft for submission to the Assembly a stat-ute for this Tribunal. The Tribunal might include an expert on relations be-tween employers and employees in addition to legal experts.”, Doc. PC/20, para. 74, cited in Amerasinghe, see note 5, The Law of the ... , 54.

49 See Doc. cited in Amerasinghe, see note 5, The Law of the ... , 55 nn. 33 and 34.

50 See Report of the Secretary General, Doc. A/986 of 21 September 1949, 146-156.

51 See the Report of the Fifth Committee, Doc. A/1127 of 22 November 1949 and Corr. 1, Official Records of the General Assembly, Fourth Sess., Ple-nary Mtgs, Annex, 167-172, Rapporteur: Miss Witteveen (Netherlands).

52 25th Plenary Mtg of 24 November 1949, Official Records of the General Assembly, Fourth Sess., Plenary Mtgs, 360-362.


by an official in the International Court of Justice. By creating a tribu-nal to serve as a jurisdiction open to its many officials of various na-tionalities, the United Nations will be acting not only in the interest of efficient administration, but also in the cause of justice.”53

bb. Jurisdiction and Receivability

Pursuant to article 2 (1) of its Statute, UNAT was “competent to hear and pass judgement upon applications alleging non-observance of con-tracts of employment of staff members of the Secretariat of the United Nations or of the terms of appointment of such staff members.” The Statute also established that it would be open “to any other person who can show that he or she is entitled to rights under any contract or terms of appointment, including the provisions of staff regulations and rules upon which the staff member could have relied.”54 While one interpre-tation of the wording of that provision suggests, that the tribunal was potentially open to persons other than staff members, the phrase “staff regulations and rules upon which the staff member could have relied” led to a restrictive interpretation as to who constituted a staff member.55 UNAT’s jurisprudence and UN practice established that persons em-ployed on special service agreements and individual contractors did not constitute staff members, and thus, those persons could not access the internal justice mechanisms.56 That was one point of critique later on by the Redesign Panel.57

Furthermore, in accordance with article 7, UNAT could not receive a case unless the person concerned had previously accessed a JDC or a JAB, except where the Secretary-General and the applicant had agreed to submit the application directly to UNAT. In the event that the re-commendations made by the joint body and accepted by the Secretary-General were unfavorable to the applicant, the application was receiv- 53 Effect of Awards, see note 2, Oral Statements, 294. 54 Article 2 (2)(b) UNAT Statute. 55 Redesign Panel, see note 3, paras 16-18. 56 Ibid., para. 15. 57 Ibid., para. 20. It suggested that the system of justice should be extended

both to any person appointed by the Secretary-General, the General As-sembly or any principal organ to a remunerated post in the organization and to any other person performing personal services under contract with the United Nations, including consultants and locally recruited personnel of peacekeeping missions; see also A/RES/59/283 of 13 April 2005 where it established guidelines for a more comprehensive coverage.


able, unless the joint body unanimously considered that it is frivolous.58 Consequently the relevant joint appeals body could produce a result where the concerned member did not have access to an independent tribunal.

cc. Appointment of Judges

Article 3 of UNAT’s Statute stated inter alia, there would be seven members at UNAT, all of whom must be of different nationalities, and each of them was required to possess administrative law experience in their respective jurisdiction.59 Pursuant to article 3 (2) of its Statute, judges were appointed by the General Assembly.60 This often raised the issue of political influence in appointments and issues concerning the independence of the judges.61 Pursuant to article 3 (5), no member of the tribunal could be dismissed by the General Assembly unless the other members were of the unanimous opinion that he/she was un-suited for further service.

dd. Other Provisions Relevant to Due Process Issues

Pursuant to article 15 of the Rules of Procedure of UNAT, the holding of oral proceedings was subject to the discretion of the presiding mem-ber. It appears that in the vast majority of cases, the tribunal decided cases on the basis of the documentation before it.62 As regards the rules on legal representation before the tribunal, article 13 of the Rules pro-vided that a staff member may present his case before the tribunal,

58 See article 7 (3) of the UNAT Statute. 59 Article 3 has been subject to various amendments. Among others, it was

amended by the General Assembly in its resolution A/RES/55/159 of 12 December 2000 that required that UNAT members possess requisite quali-fications, and as appropriate, legal experience. Article 3 was last amended by A/RES/58/87 of 9 December 2003.

60 See information available in Doc. A/56/800, see note 36, para. 40. 61 See generally, M. Vicien-Milburn, “The Independence of the UN Adminis-

trative Tribunal and its Legacy”, in: K. Papanikolaou/ M. Hiskaki (eds), In-ternational Administrative Tribunals in a Changing World: United Nations Administrative Tribunal Conference: Organized under the Auspices of the Executive Office of the Secretary-General, New York, 9 November 2007, 2008, 105.

62 See the information extracted on UNAT’s website <http://untreaty. un.org/unat/faq.htm>.


“in person, in either the written or oral proceedings. … he may des-ignate a staff member of the United Nations or one of the special-ized agencies to represent him, or may be represented by counsel authorized to practice in any country a member of the organization concerned. The President or, when the Tribunal is in session, the Tribunal may permit an applicant to be represented by a retired staff member of the United Nations or one of the specialized agencies.” Article 11 (2) of the Statute stated that “the judgements of the Tri-

bunal shall be final and without appeal.”63 Consequently, the affected staff member was unable to exercise his/her right to an appeal.

ee. Remedies at UNAT

Pursuant to article 10 (1) of the Statute, the tribunal was empowered to order the rescinding of the decision contested or the specific perform-ance of the obligation invoked. However, as it was considered on occa-sions inappropriate to force the Secretary-General to reinstate the em-ployment of a staff member whose employment had been terminated, the Secretary-General could compensate the concerned staff member instead.64

b. Analysis of the UNAT Regime

The challenges for litigants at the top of the pyramid of the formal jus-tice system were similar in character to the issues confronted by the liti-gants before the advisory bodies. It appears from the above outline of the key provisions of UNAT’s Statute that several basic due process guarantees were absent. The key problematic issues faced by the UNAT regime, and the pre-reform internal justice system not only related to a lack of due process, but as shown above, the systems were extraordinar-ily slow, and simple matters took years to be resolved. Furthermore, there was a lack of knowledge of the recourse options available amongst staff members, and general disenchantment prevailed since the staff be-lieved that justice was unequal and was influenced by position and na-tionality.65 The faults and various suggestions for improvement of the

63 Article 12 of the UNAT Statute that created a facility to seek corrections

and/or clarifications of decisions where a new fact was discovered which was unknown to the parties.

64 See Article 10 of the UNAT Statute; see also Redesign Panel, see note 3. 65 See Redesign Panel, see note 3, para. 28.


administration of justice at the United Nations are contained in numer-ous reports and documentation prepared by it.66 It is impracticable to discuss all the shortcomings of the pre-reform system in detail, and the following just seeks to capture the main shortcomings in terms of due process issues.

aa. Right to Appeal

As has already been stated, a staff member could not appeal an adverse finding by UNAT, and thus, his/her right to appeal was infringed.67 For a certain period of time, there existed a possibility of making a reference to the ICJ for an Advisory Opinion that was available to UNAT.68 That procedure was abolished by the General Assembly in its resolution A/RES/50/54 of 11 December 1995 on the grounds that it was not a useful element respecting the adjudication of staff disputes within the organization.69

66 For further information on the weaknesses of the pre-reform system, his-

torical perspectives and the changes proposed, see Redesign Panel, see note 3; Administration of Justice at the United Nations, Report of the Joint In-spection Unit, Doc. JIU/REP/2000/1 of 12 June 2000; Reform of the Ad-ministration of Justice in the United Nations System: Options for Higher Recourse Instances, Report of the Joint Inspection Unit, Doc. JIU/REP/2002/5 of 1 January 2002; see also the numerous reports prepared by the Secretary-General and the Fifth Committee on the issue of the Ad-ministration of Justice at the United Nations.

67 A right to appeal is critical as it gives an appellant court an opportunity to correct a decision tainted with error. In the absence of such a right, the lower courts may on occasions act arbitrarily, cf. I. Seiderman, Interna-tional Council of Jurists, 12 November 2002, ILOAT Reform – Staff Union Website <www.ilo.org/public/english/staffun/info/iloat/seiderman.htm>.

68 In 1955, the UNAT statute was amended by A/RES/957 (X) of 8 Novem-ber 1955, making provision in its new article 11 for a limited review of UNAT judgments through the power of a special committee to request Advisory Opinions from the ICJ. For an analysis of the process, J. Gomula, “The International Court of Justice and Administrative Tribunals of International Organizations”, Mich. J. Int’l L. 13 (1991), 83 et seq.

69 During the period the review mechanism was present, a Member State, the Secretary-General, or the concerned staff member could request the Com-mittee on Applications for Review of Judgments of the Administrative Tri-bunal of the United Nations to request an Advisory Opinion from the ICJ on the relevant judgment. That procedure was abolished by the General Assembly in its resolution A/RES/50/54 of 11 December 1995 on the


In 2000, the Joint Inspection Unit (JIU) recommended that consid-eration be given to a possible establishment of a higher instance for ap-peal,70 and in its Report, the Redesign Panel emphasized the need for a second instance and suggested the establishment of a two-tier system of administration of justice as one of the cornerstones of the reform ef-forts. It was suggested that a new tribunal, the United Nations Dispute Tribunal should be created and serve as the first instance, whereas the existing UNAT should be renamed United Nations Appeals Tribunal and have the primary function of hearing appeals from the UNDT.71

bb. The Issue of Oral Hearings

UNAT often decided cases in written form, and as discussed earlier, the concerned staff member did not have a right to an oral hearing. The Re-design Panel stated that, “to guarantee due process and to facilitate deci-sions, oral hearings should be promoted and accepted.”72 The fact that proceedings were predominantly in written form was subject to heavy criticism by staff unions arguing that this violates the right to a fair trial as provided for in human rights treaties.73 While the JIU suggested that the possibility of holding oral hearings should be subject to further

grounds that it was not a useful element respecting the adjudication of staff disputes within the organization.

70 Administration of Justice at the United Nations, Report of 12 June 2000, see note 66, ix.

71 Redesign Panel, see note 3, para. 74; for earlier attempts to establish mechanisms of review, see Doc. JIU/REP/2002/5, vii, see note 66. That re-port also sheds light on the following debate on moves to harmonize the statutes of UNAT and the ILOAT.

72 Redesign Panel, see note 3, para. 10. 73 London Resolution of the ILO Staff Union, 28 September 2002, <www.ilo.

org/public/english/staffun/info/iloat/londonres.htm>, with regard to the ILOAT practice of denying oral hearings it has been remarked that “all human rights treaties require a ‘fair and public hearing’ for disputes con-cerning civil obligations: a fortiori they are breached by a Tribunal which offers no hearings at all. There may be cases where the facts are not in dis-pute and the legal issues can be satisfactorily adumbrated on paper … to deprive all complainants of a hearing to which they are presumptively enti-tled cannot be justified … [ILOAT must adopt a rule that] makes pellu-cidly clear that any party is entitled to an oral hearing on request, which may only be refused in limited and defined circumstances and with a rea-soned decision that such circumstances exist.”


study,74 the Redesign Panel emphasized the importance of oral hearings generally, and found them to be a requirement where there existed dis-puted issues of fact.75 However, one must consider the difficulties in always holding oral hearings in the context of the United Nations, where distances are often vast. Disciplinary proceedings should involve oral hearings, but in cases largely concerning administrative matters, if factual issues are not in contest, then for reasons of expediency, cases could be decided in written form. Moreover, technology is, and will undoubtedly enhance the process of holding a hearing even when par-ties are in different locations.

cc. Access to Legal Representation

To guarantee equality before courts and tribunals, access to lawyers and legal services is crucial. In the pre-reform system, staff members had, theoretically, the right to a lawyer of their choice, but, in practice, ac-cess was not effective and equal.76

Under the pre-reform system, the UN administration had the sup-port of well-trained lawyers of the Office of Legal Affairs, whereas staff members often relied on staff counsel with no legal qualifications. Al-ready in 2000, the JIU pointed out that staff members are at a disadvan-tage in this respect77 and recommended that the Panel of Counsel be strengthened.78 The Redesign Panel later on also criticized the Panel of Counsel as under-resourced (it had only two full-time staff members as of 2006) and unprofessional79 in that there was no requirement for legal qualifications in order to serve on it.80 The pre-reform regime in that respect was highly unsatisfactory. The Redesign Panel thus recom-mended the creation of a professional Office of Counsel, staffed by per-sons with legal qualifications.81

74 Report of the Joint Inspection Unit: Note by the Secretary-General, Doc.

A/55/57/Add.1 (2000) of 16 August 2000, 6. 75 Redesign Panel, see note 3, paras 10 and 92. 76 Ibid., para. 10. 77 Doc. JIU/REP/2000/1, see note 66, 7. 78 Ibid., 7. 79 Redesign Panel, see note 3, paras 100 and 102. 80 Ibid., para. 105. 81 Ibid., para. 107.


dd. Independence of the Judicial Institution

The Secretariat of UNAT was under the auspices of the Office of Legal Affairs. The staff were selected by and had to report to the executive head of the organizations.82 Such a system leads to a situation of objec-tive bias. As was stated earlier, the manner in which members of UNAT were appointed gave rise to suggestions that appointments were politi-cally motivated, and the JIU emphasized the importance that all bodies concerned with the administration of justice be independent.83 The Re-design Panel suggested therefore the establishment of an Office of Ad-ministration of Justice as well as an Internal Justice Council, in order to monitor the formal justice system.84 Such an office has now been estab-lished and is operational.

c. UNAT’s Legacy

While the old system was subject to substantial criticism, it nevertheless left an important legacy. The jurisprudence of UNAT undoubtedly constitutes a legacy not only for the newly established UNDT and Ap-peals Tribunal, but for international administrative law in general.85 Its jurisprudence on the concept of acquired rights,86 the independence of the international civil service and its jurisprudence on due process are 82 Reinisch/ Knahr, see note 3, 453. 83 Doc. JIU/REP/2002/5, vi., see note 66. 84 Redesign Panel, see note 3, paras 124-127, “The Internal Justice Council

[is] responsible for monitoring the formal justice system and also for com-piling a list of … persons eligible to be appointed to each judicial posi-tion.”, at para. 127.

85 See generally, Vicien-Milburn, see note 61; cf. also C.F. Amerasinghe, “Judging with and Legal Advising in International Organizations”, Chi. J. Int’l L. 2 (2001), 283 et seq.

86 The concept of acquired rights is contained in old Staff Regulation 12.(1). Respect for acquired rights means that “the complex of benefits and advan-tages to which a staff member is entitled for services rendered before the entry into force of a new rule cannot be impaired”, see Copio, UNAT No. 266 (1980) of 20 November 1980, para. VIII. See also Mortished, UNAT No. 273 (1981) of 15 May 1981 which was eventually considered by the ICJ pursuant to a procedure for the review of UNAT’s judgments that were then in force. In Mortished, the ICJ upheld UNAT’s decision, cf. Ad-visory Opinion, Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, ICJ Reports 1982, 325 et seq. (365 et seq., para. 79).


some of the key areas in which UNAT made its greatest contributions. The tribunal rendered numerous judgments where it reaffirmed the principles of the independence of the international civil service as en-shrined in Article 100 para. 1 of the Charter. UNAT expanded upon the safeguards necessary to ensure the independence of an international civil servant from the government of a staff member’s state of national-ity and other institutions, and when required, delivered bold decisions that forced a change in the Secretary-General’s practice.87

Due process and fairness constitute the most important way in which an international civil servant can protect his/her rights. In the Sokoloff case88 UNAT emphasized the application of the general prin-ciple of due process and stated,

“First, [UNAT] wishes to underline the importance that procedure has, an importance which has been emphasized in recent years throughout developed legal systems, under the title of due process … the Tribunal is of the opinion that the assurances of due process and fairness, as outlined by the General Assembly … mean that, as soon as a person is identified, or reasonably concludes that he has been identified, as a possible wrongdoer in any investigation proce-dure and at any stage, he has the right to invoke due process with everything that this guarantees.”89 While several of the due process guarantees were often not realized

in the way in which the old system operated,90 UNAT did play a role in building a body of jurisprudence that provided for, and expanded the

87 Vicien-Milburn, see note 61, 108; see the cases relating to employees on

secondment where undue pressure seemed to be exerted on the UN by cer-tain states following adverse decisions which were made in relation to those employees. UNAT decided in favor of those employees. In doing so, the Tribunal ensured the independence of UN staff and the Secretary-General had to reconsider the entitlements of several staff members: see, Yakimetz, UNAT No. 333 (1984) of 8 June 1984 and Qiu Zhou and Yao, UNAT No. 482 (1990) of 25 May 1990. Mr Yakimetz applied for a review of UNAT’s judgment, however, the ICJ upheld the tribunal’s findings, see Application for Review of Judgment, see note 86, 72 para. 97.

88 Sokoloff, UNAT No. 1246 (2005) of 22 July 2005. 89 Ibid., paras IV-V. 90 See Redesign Panel, see note 3, para. 72: “[t]here is a widespread view,

which is largely correct, that the formal justice system affords little, if any, protection of individual rights, such as the right to a safe and secure work-place or the right to be treated fairly and without discrimination.”


meaning of the various due process rights.91 It was finally abolished as of 31 December 2009,92 as well as the JDCs and JABs.93

4. Conclusion

It is unsurprising that the Redesign Panel stated that the dysfunctional system of administration of justice, which existed at the United Na-tions, was inconsistent with the principles and aspirations of the or-ganization, and needed to be replaced.94 But it is important to give UNAT credit for the legacy in terms of the rich body of jurisprudence that it has left behind. UNAT dealt with complex and sensitive issues, especially due to the variety of functions that the United Nations per-forms, and according to some estimates approximately 50-60 per cent of the cases were decided in favor of staff members.95 This suggests that UNAT did play a role in enhancing the rights of staff members. How-ever, as has been shown, the process of internal dispute resolution was slow, ineffective and lacked certain core aspects of due process, and a radical transformation of the system was long overdue. The system is now in fact replaced, and the next Part will outline the fundamental as-pects of this new system.

II. The New System of Internal Dispute Resolution at the United Nations

1. Introduction

This Part outlines the key characteristics of the new internal dispute resolution system. As the new internal justice mechanism has been op-erational for a short time it might be too early to judge its success. However, based upon the initial signals, it is useful to consider whether the new system is moving in the direction that is consistent with the in-

91 For UNAT’s contribution on the jurisprudence of due process, see K. Bax-

ter/ S. Flogaitis, “What Process is Due: The Sokoloff Case”, in: Papaniko-laou/ Hiskaki, see note 61, 129-140.

92 A/RES/63/253 of 24 December 2008, para. 43. 93 Ibid., para. 38. 94 Redesign Panel, see note 3, para. 150. 95 Amerasinghe, see note 85, 292.


tention behind its creation. Thus, following the consideration of the new recourse options available to UN staff, in the following certain judgments rendered by UNDT so far, will be considered in order to analyze the manner in which the new system appears to be operating. Further some preliminary indications about the nature of the transfor-mation that is being brought about in the internal working of the United Nations as a result of the overhaul of the internal justice regime will be provided.

2. The Introduction of the New System

While the new system at the UN was established in 2007, it was only in 2009 that it became operational.96 By A/RES/61/261 of 4 April 2007, the General Assembly had established the new system to handle em-ployment-related disputes that aimed at creating “a new, independent, transparent, professionalized, adequately resourced and decentralized system of administration of justice consistent with the relevant rules of international law and the principles of the rule of law and due proc-ess.”97 In adopting that Resolution, the General Assembly was acting pursuant to the Secretary-General’s proposals concerning the admini-stration of justice, which were derived from the recommendations made by the Redesign Panel, and from the extensive consultations with staff through the Staff-Management Coordination Committee.98

The General Assembly established a new Office of Administration of Justice (OAJ), which possesses the overall responsibility for the co-ordination of the UN internal dispute resolution system.99 The OAJ is an independent office that inter alia, provides support to UNDT and the Appeals Tribunal through their Registries.100

Furthermore, both the formal and the informal systems have under-gone a comprehensive transformation. As regards the formal system, in

96 A/RES/63/253 of 24 December 2008. 97 A/RES/61/261 of 4 April 2007, para. 4, later reaffirmed by A/RES/62/228

of 22 December 2007. 98 Report of the Secretary-General, Doc. A/61/294 of 23 August 2007. 99 A/RES/62/228 of 22 December 2007, para. 10. Further details on the role,

structure and working of the OAJ in the present system are contained in Secretary-General’s Bulletin, Organization and Terms of Reference of the Office of Administration of Justice, Doc. ST/SGB/2010/3 of 7 April 2010.

100 Doc. ST/SGB/2010/3, see note 99, para. 21.


line with the recommendation of the Redesign Panel, the formal system of the administration of justice now comprises, as already mentioned, two tiers. A decentralized first instance judicial body, the UNDT, and an appellate instance tribunal, the United Nations Appeals Tribunal, both tribunals are empowered to render binding decisions and ordering appropriate remedies.101 Furthermore, the General Assembly, in accor-dance with the suggestions of the Redesign Panel, decided to create a single integrated and decentralized Office of the Ombudsman for the UN Secretariat, funds and programs.102 It emphasized the crucial role that mediation has to play in the new system, and formally established a Mediation Division within the Office of the United Nations Ombuds-man to provide formal mediation services.103 To promote the equality of arms, the General Assembly established the Office of Staff Legal As-sistance which was to succeed the Panel of Counsel in order to facilitate the provision of professional legal assistance to staff members.104 In the new system, this office is one of the organizational units of the Office of Administration of Justice.105 A five-member Internal Justice Council consisting of a staff representative, a management representative, two distinguished external jurists and chaired by a distinguished jurist cho-sen by consensus by the four other members was also established.106 Its major roles are to source suitable candidates to serve as members of the newly established tribunals, and make recommendations to the General Assembly regarding the selection of judges.107

After several decades of efforts to reform the internal justice sys-tem,108 by Resolution A/RES/63/253 dated 24 December 2008, the General Assembly, inter alia, adopted the Statute of the UNDT 101 A/RES/61/261 of 4 April 2007, para. 19. 102 Ibid., para. 12. 103 Ibid., para. 15. 104 A/RES/62/228 of 22 December 2007, para. 13. 105 Doc. ST/SGB/2010/3, see note 99, para. 7.1. 106 A/RES/62/228 of 22 December 2007, para. 36. 107 Ibid., para. 37. 108 For examples on UN efforts to reform the internal justice system in the last

three decades, see Report of the Secretary-General on the Establishment of an Office of Ombudsman in the Secretariat and the Streamlining of the Appeals Procedures, Doc. A/C.5/42/28 of 3 November 1987; see also Re-form of the Internal System of Justice in the United Nations Secretariat, Doc. A/C.5/50/2/Add.1 of 17 November 1995; Reform of the Internal Sys-tem of Justice in the United Nations Secretariat, Doc. A/C.5/50/2 of 27 September 1995.


(UNDT’s Statute) and the Statute of the Appeals Tribunal (Appeals Tribunal’s Statute).109

3. The Formal Regime of Internal Justice

a. Disciplinary Matters: Does the New Regime Remedy the Flaws of the Old System?

The new regime concerning disciplinary matters is enshrined in Chap-ters X and XI of the Staff Regulations and Provisional Staff Rules. It should be recalled that, in the old system, the Secretary-General needed to receive the advice of the JDCs before imposing a disciplinary meas-ure on a staff member.110 As of 1 July 2009, given that the JDCs are now abolished, the Secretary-General or a decision-maker on whom discretionary authority to impose disciplinary measures is bestowed, may impose disciplinary measures for misconduct111 without receiving such advice, and the concerned staff member may appeal that decision to impose disciplinary measure/s (within 90 days of that decision) di-rectly to UNDT.112 A staff member may further appeal a decision of UNDT to the Appeals Tribunal.113

Provisional Staff Rule 10.(3)(a) enshrines the due process require-ment respecting the conduct of disciplinary proceedings. It states,

“[N]o disciplinary measure … may be imposed on a staff member following the completion of an investigation unless he or she has been notified, in writing, of the charges against him or her, and has been given the opportunity to respond to those charges. The staff member shall also be informed of the right to seek the assistance of counsel in his or her defence through the Office of Staff Legal Assis-tance, or from outside counsel at his or her own expense.” The weaknesses of the old system concerning disciplinary proceed-

ings that were noted in Part I included: (1) the poor quality of the re-ports of the respective JDC, a body that objectively lacked independ-ence, possessed no power to make binding decisions, was presided over 109 A/RES/63/253 of 24 December 2008, para. 26. 110 Provisional Staff Rule 10.2 contains a list of potential disciplinary measures. 111 “Misconduct” is defined in Provisional Staff Rule 10.1. 112 See arts 2(1)(b) and 8 (1)(d)(ii) of UNDT’s Statute, Annex I; also see Provi-

sional Staff Rules 10.3(c), 11.2(b) and 11.4(b). 113 Arts 2 and 7 of the Appeals Tribunal Statute, Annex II.


by persons with no legal qualifications, and which was effectively the first stage of review against a disciplinary measure; (2) the extensive de-lays in the imposition of disciplinary measures; and (3) problems faced by concerned staff members in obtaining legal representation, especially in field duty stations where staff were often unaware of the existence of the Panel of Counsel. Following the imposition of a disciplinary meas-ure, a staff member can now seek review at UNDT. As a result, the is-sue of the lack of access to an independent tribunal to seek review of an adverse decision is now remedied. Furthermore, the fact that a staff member can appeal UNDT’s decision to the Appeals Tribunal ensures that UN staff can now exercise their right to an appeal.

Concerning the issue of delay, proceedings at the JDCs usually took 6-8 months, and its recommendations had to be considered at Head-quarters in New York before any disciplinary measures could be taken,114 making the overall process lengthy and complex. Furthermore, often a staff member was summarily dismissed when the misconduct in question should have attracted a weaker measure, as management could not impose less stringent measures until the respective JDC made its recommendations.115 To address the protracted delays concerning dis-ciplinary matters prevalent in the old centralized system, the Redesign Panel recommended delegating authority to executive heads of missions and offices away from Headquarters. They should have power to im-pose whatever disciplinary measure is considered appropriate and staff members should have an immediate right to challenge the decision be-fore UNDT.116

The issue of the imposition of stringent measures when weaker dis-ciplinary measures could be more appropriate, seems to be remedied by the terms of Provisional Staff Rule 10.(3)(b), which states “Any disci-plinary measure imposed on a staff member shall be proportionate to the nature and gravity of his or her misconduct.” However, it might be beneficial to have criteria which provide decision-makers with guidance as to which disciplinary measure to impose for particular misconduct to ensure consistency. It does not appear that the current Staff Regulations and Rules in force, or the relevant Administrative Instructions provide

114 Redesign Panel, see note 3, para. 65. 115 Ibid., para. 79. 116 Ibid., para. 80; for a discussion of the views of the Secretary-General on the

recommendations of the Redesign Panel, see Report of the Secretary-General: Administration of Justice at the United Nations, Doc. A/63/314 of 20 August 2008.


such guidance.117 Under the current rules, recommendations for the imposition of disciplinary measures are taken by the Under-Secretary-General for Management, and the Office of Legal Affairs is required to review recommendations that relate to the dismissal of staff.118 How-ever, as a concerned staff member can now directly appeal against a dis-ciplinary measure to UNDT within 90 days of the notification of the relevant decision, the delays caused by the inefficiency of the JDCs and JABs have been eliminated. It appears that the administration is in the process of creating an efficient model of imposing disciplinary meas-ures.

Regarding legal representation, in the new system an adversely af-fected staff member must be notified of his/her right to seek the assis-tance of counsel in his or her defense through the Office of Staff Legal Assistance and must be offered information on how to obtain such as-sistance.119 Furthermore, pursuant to Provisional Staff Rule 11.(4)(d) “A staff member shall have the assistance of counsel through the Office of Staff Legal Assistance if he or she so wishes, or may obtain outside counsel at his or her expense, in the presentation of his or her case be-fore the United Nations Dispute Tribunal.” Thus, the defect in the old system whereby staff members were often unaware of the existence of the Panel of Counsel, and could not access professional legal advice seems, at least in theory, to have been remedied. Consequently, a staff member does have a right to legal representation if he/she chooses to exercise it, and the new system seems to promote the right to equality of arms. This issue will be revisited as it is relevant to several segments of the discussion that is yet to follow.

117 Ibid., paras 25 and 49: the Secretary-General considered that a number of

safeguards need to be put in place to ensure that the imposition of discipli-nary measures at the various duty stations are consistent, and due process rights are protected.

118 Administrative Instruction Doc. ST/AI/371 of 2 August 1991, para. 6, which contains the changes to the manner in which disciplinary proceed-ings are to be conducted as enshrined in Administrative Instruction Doc. ST/AI/371/Amend.1 of 11 May 2010.

119 Ibid., para. 5.


b. Non-Disciplinary Matters

aa. Management Evaluation

The first formal step in the new system to contest an adverse adminis-trative decision involves a request for a management evaluation to the newly created Management Evaluation Unit which is an independent organization unit within the Department of Management and charged with carrying out evaluations, via information to the Under-Secretary-General for Management,120 with a copy to the head of depart-ment/office where the concerned staff member is based.121 A request for a management evaluation must be made within 60 days of the notifi-cation of the relevant decision to the adversely affected staff member.122 Staff members requesting a management evaluation are “strongly en-couraged to seek advice and assistance of counsel, either with OSLA or private counsel, in order to become fully acquainted with their rights.”123 There exist strict time limits within which the management evaluation must take place. Following a request for management evalua-tion, a staff member is to receive a reasoned response within 30 days (if he/she is based at Headquarters), and within 45 days (for staff based away from Headquarters).124 A staff member may file an appeal at the UNDT against the outcome of the management evaluation within 90 days of receiving the evaluation,125 and if no response is received within the specified time-limits, then, the staff member may proceed with his/her appeal against the decision within 90 days of the date within which the concerned staff member should have received a response on

120 In the Secretariat, management evaluations are to be carried out by a new

Management Evaluation Unit in the Office of the Under-Secretary-General for Management, see Secretary-General’s Bulletin Doc. ST/SGB/2009/11 of 24 June 2009, Transitional Measures Related to the Introduction of the New System of Administration of Justice, para. 13.

121 Provisional Staff Rule 11.2(a). 122 Provisional Staff Rule 11.2(c). 123 See the website of the OAJ for a step by step guide provided to staff mem-

bers in seeking review of adverse decisions, <www.un.org/en/oaj/unjs/step bystep.shtml>.

124 Provisional Staff Rule 11.(2)(d) and article 8 of UNDT’s Statute. The dead-lines are subject to extensions that may be granted to reach a resolution by using informal means of dispute resolution.

125 Article 8 of UNDT’s Statute deals with receivability.


his/her request for a management evaluation.126 A concerned staff member may file an appeal against the decision of the UNDT at the Appeals Tribunal within 45 days of the decision of the UNDT.127

bb. Non-Disciplinary Matters: Does the New Regime Remedy the Flaws of the Old System?

It should be recalled that in the old system the administrative review model provided the administration with a final opportunity to review a contested decision before the complaint proceeded to a JAB for consid-eration.128 The Redesign Panel recommended that the system of admin-istrative review before action should be abolished.129

The newly established management evaluation regime primarily seeks to provide an “independent, third-party review of whether a deci-sion complies with organizational rules, policies and procedures.”130 As is shown in the legal regime governing management evaluations, there are strict time limits and requirements as to reasoned responses that re-flect the basis for the evaluation. Therefore, an earnest effort has been made to ensure that staff receive prompt and reasoned responses for the decisions of management. The evaluations are carried out by the above mentioned Management Evaluation Unit. The aim is to eliminate the perception of bias that arose in the old system under which the evalua-tion was carried out by the under-resourced Administrative Law Unit of the Office of Human Resources Management, which was also re-sponsible for defending the administrative decision if the case pro-ceeded to a JAB.131 This development should be welcomed as the per-ception of a system free from objective bias is necessary to secure a harmonious work environment.

The issues of legal representation and oral hearings will now be dis-cussed whilst an analysis of the functioning of the new tribunals is un-dertaken.

126 Provisional Staff Rule 11.4(a). 127 Provisional Staff Rule 11.5(b). 128 Report of the Secretary-General: Administration of Justice at the United

Nations, Doc. A/62/294 of 23 August 2007, para. 75. 129 Redesign Panel, see note 3, para. 87. 130 Doc. A/62/294, see note 128, para. 86. 131 Ibid., see also Redesign Panel, see note 3, para. 112.


4. The New Judicial Institutions at the United Nations

In-depth references to certain provisions of UNDT’s Statute and the Appeals Tribunal’s Statute have been made above. The following section will briefly highlight the fundamental characteristics of the new judicial institutions.

a. UNDT’s Statute

Pursuant to article 1 of its Statute, UNDT is the first instance of the two-tier formal system of administration of justice at the United Na-tions. The Registries of UNDT have been established in New York, Geneva and Nairobi.132 In accordance with article 2 (1)(a) and (b) of the Statute, it is competent “to hear and pass judgment on an application filed by an individual ... against the Secretary-General as Chief Admin-istrative Officer of the United Nations: (a) To appeal an administrative decision that is alleged to be in non-compliance with the terms of ap-pointment or the contract of employment ... (b) and to appeal an ad-ministrative decision imposing a disciplinary measure.”133 Article 8 of UNDT’s Statute deals with the receivability of an application and pro-vides for strict time-limits. According to article 8 (4), an application is not receivable if it is filed more than three years after the applicant’s re-ceipt of the contested administrative decision. Pursuant to article 3 (1) of the Statute, UNDT may be accessed by any staff member of the Se-cretariat, including former staff members, and by any person who has succeeded to the staff member’s rights upon his /her death. The notable exception in relation to access in the new regime is the provision con-tained in article 2 (2)(b) of UNAT’s Statute. That provision stated that UNAT was open, “To any other person who can show that he or she is entitled to rights under any contract or terms of appointment, including the provisions of staff regulations and rules upon which the staff mem-ber could have relied.” The corresponding text of which does not ap-pear in the new UNDT Statute. It should be recalled that UNAT gave a narrow interpretation as to who is a “staff member”. Discussions on

132 Article 6 (2) UNDT’s Statute. 133 Article 2 (1)(a) and (b) UNDT’s Statute; article 2 (3) empowers UNDT “to

permit or deny leave to an application to file a friend-of-the-court brief by a staff association.”


who may access the internal justice mechanisms at the United Nations are still underway.134

Judicial independence was a fundamental aspect of the reform. In that regard, article 4 states,

“1. The Dispute Tribunal shall be composed of three full-time judges and two half-time judges.135 2. The judges shall be appointed by the General Assembly on the recommendation of the Internal Justice Council … No two judges shall be of the same nationality … 3. To be eligible for appointment as a judge, a person shall: (a) Be of high moral character; and (b) Possess at least 10 years of judicial experience in the field of ad-ministrative law, or the equivalent within one or more national ju-risdictions. 4. A judge of the Dispute Tribunal shall be appointed for one non renewable term of seven years. ... 8. A judge of the Dispute Tribunal shall serve in his or her personal capacity and enjoy full independence. 10. A judge of the Dispute Tribunal may only be removed by the General Assembly in case of misconduct or incapacity.” In Part I., issues regarding the independence of judges were noted in

terms of the manner of their appointment. As was highlighted, in the old regime, the General Assembly appointed the judges of UNAT fol-lowing nominations made by States Parties.136 In that regard, the formal independence of the judges was prima facie compromised given that they were appointed by an organ of the organization against which complaints were brought. The promotion of formal independence of the judiciary would naturally involve developing procedures that re-duce the role of the organization in the appointment of judges. How- 134 See in this respect already Reinisch/ Knahr, see note 3, 468. 135 See also article 5 of UNDT’s Statute. The three full-time judges of the

UNDT are to exercise their functions in New York, Geneva and Nairobi, respectively. However, UNDT is empowered to decide to hold sessions at other duty stations, as required by its caseload.

136 For an example of how judges were appointed in the pre-reform system, see e.g. Report of the Fifth Committee: Appointments to Fill Vacancies in Subsidiary Organs and other Appointments: Appointment of Members of the United Nations Administrative Tribunal, Doc. A/62/532 of 6 Novem-ber 2007.


ever, the Redesign Panel suggested originally that the judges of UNDT should be appointed by the Secretary-General from the list prepared by the Internal Justice Council. According to article 4 (2) of UNDT’s Stat-ute the judges now are appointed by the General Assembly on the rec-ommendation of the Internal Justice Council. On 2 March 2009, three full-time and two half-time judges were appointed to the UNDT. Sub-sequently, the Assembly elected three ad litem judges for a period of one year to assist in handling the cases inherited from the former JABs and JDCs as well.137

The United Nations has taken further significant steps to ensure in-dependence of the judiciary by granting judges a non-renewable term of seven years, by only granting the General Assembly the power to re-move judges, and expressly stating that the members of UNDT operate in their personal capacity and enjoy full independence.

In relation to remedies, it does not appear that the new regime de-parts from the old system where, in certain cases, the Secretary-General could pay compensation instead of ordering specific performance. That is the case despite the Redesign Panel’s view that the power of the Sec-retary-General to choose between “specific performance and the pay-ment of limited compensation can, and sometimes does, result in inade-quate compensation, particularly in cases of wrongful termination or non-renewal of contract. A system that cannot guarantee adequate compensation or other appropriate remedy is fundamentally flawed. More significantly, a system that does not have authority to finally de-termine rights and appropriate remedies is inconsistent with the rule of law.”138

The new regime on remedies nevertheless contains some additional aspects which are important to mention. Pursuant to article 10 the UNDT is empowered to inter alia,

“3. At any time during the deliberations … refer the case to media-tion. … 5. As part of its judgement … order one or both of the following: (a) Rescission of the contested administrative decision or specific performance, provided that, where the contested administrative de-cision concerns appointment, promotion or termination, the Dis-pute Tribunal shall also set an amount of compensation that the re-

137 Report of the Secretary-General: Administration of Justice at the United

Nations, Doc. A/65/373 of 16 September 2010. 138 Redesign Panel, see note 3, para. 71.


spondent may elect to pay as an alternative to the rescission of the contested administrative decision or specific performance ordered, subject to subparagraph (b) of the present paragraph; (b) Compensation, which shall normally not exceed the equivalent of two years’ net base salary of the applicant. The Dispute Tribunal may, however, in exceptional cases order the payment of a higher compensation … 6. Where the Dispute Tribunal determines that a party has mani-festly abused the proceedings before it, it may award costs against that party. 7. The Dispute Tribunal shall not award exemplary or punitive dam-ages.” The provision on the award of legal costs should be welcomed as it

is likely to reduce potential vexatious claims, and the power to refer a case to mediation is just one example of the new regime’s aim to make every possible effort to resolve a dispute via informal methods. Further, the United Nations seems to have retained the facility whereby in cases of termination, the Secretary-General may choose to pay compensation to an adversely affected staff member instead of reinstating the person. That is despite the Redesign Panel’s criticism that a lack of power to render binding judgments and remedies is contrary to the rule of law. However, one can agree with the UN’s approach on this issue. It might be inappropriate to restore the employment of certain persons follow-ing their dismissal as it might create on occasions a hostile work envi-ronment. Concerning the extent of compensation, the tribunal does possess discretion to award compensation higher than two years’ salary, and time will tell whether the compensation regime is proving to be sat-isfactory.

Pursuant to article 11 (3), the judgments of UNDT are binding upon the parties, but are subject to appeal to the Appeals Tribunal, and in the absence of such appeal, they shall be executable. Furthermore, under ar-ticle 12 (3), there exists a facility to apply for an interpretation of the meaning or the scope of the final judgment, which is similar in terms to the corresponding provision of UNAT, provided that it is not under consideration by the Appeals Tribunal.

b. The Appeals Tribunal’s Statute

The following is a brief outline of the key aspects that are unique to the Appeals Tribunal.


Pursuant to article 1 of its Statute, the Appeals Tribunal is to be the second instance of the two-tier formal system of administration of jus-tice at the United Nations. The Registry of the Appeals Tribunal has been established in New York.139 It is competent to hear an appeal against a judgment rendered by UNDT in cases where it is asserted that UNDT exceeded its jurisdiction or competence; failed to exercise juris-diction vested in it; erred on a question of law; committed an error in procedure, such as to affect the decision of the case; or erred on a ques-tion of fact, resulting in a manifestly unreasonable decision.140 An ap-peal may be filed by either party to a judgment of UNDT,141 in accor-dance with the time-limits prescribed in article 7 of the Appeals Tribu-nal’s Statute. Pursuant to article 7 (4), the Appeals Tribunal cannot hear a case if the appeal is filed more than one year after the judgment of the UNDT.

The Appeals Tribunal is composed of seven judges.142 In order to be a judge at the Appeals Tribunal, a person shall be of high moral charac-ter and possess at least 15 years of judicial experience in the field of ad-ministrative law, or the equivalent within one or more national jurisdic-tions.143 The rest of the provisions relating to judicial appointments and guarantees of judicial independence mirror that of the UNDT. Pursuant to article 10 (6) of its Statute, the judgments of the Appeals Tribunal shall be final and without appeal, subject to the provisions of article 11 of its Statute.

139 Article 5 (2) Statute of the Appeals Tribunal. 140 Ibid., article 2 (1). 141 Ibid., article 2 (2). 142 Ibid., article 3 (1). On 2 March 2009, the General Assembly elected the fol-

lowing seven judges to the UN Appeals Tribunal: Inés Weinberg de Roca (Argentina); Jean Courtial (France); Sophia Adinyira (Ghana); Mark P. Painter (United States of America); Kamaljit Singh Garewal (India); Rose Boyko (Canada); Luis Maria Simón (Uruguay).

143 Ibid., article 3 (3) (a)(b).


5. Some Observations on the Statutes of UNDT and the Appeals Tribunal

a. Access to the New Tribunals

As was noted in Part I., different categories of non staff personnel could not seek access to UNAT. That remains the case in the new system de-spite the Redesign Panel’s view that “[t]he scope and jurisdiction of the informal and formal internal justice system should include all persons employed by the United Nations in a remunerated post or performing personal services under contract with the Organization.”144 The Draft Statute of UNDT in fact incorporated this suggestion of the Redesign Panel.145 But according to article 3 of UNDT’s Statute non staff per-sonnel are still excluded.

Presently persons on individual contracts and persons on special service agreements only have access to the Ombudsman who may assist in the resolution of the dispute.146 Concerning formal procedures, there only exists the possibility of arbitration in order to resolve a dispute that cannot be resolved otherwise.147 Access to arbitration bears little practical benefits to persons who cannot access the internal dispute resolution mechanisms given that such a method of dispute settlement

144 See Redesign Panel, see note 3, para. 156; A/RES/59/283 of 13 April 2005

where it established guidelines for a more comprehensive coverage; accord-ing to the Redesign Panel, Annex I, staff could be defined as: “‘Staff’ in-cludes former staff and persons making claims in the name of deceased staff members and means all persons who perform work by way of their own personal service for the Organization, no matter the type of contract by which they are engaged or the body or organ by whom they are appointed but not including military or police personnel in peacekeeping operations … .”

145 Article 3 of the Draft Statute of UNDT in: Report of the Secretary-General: Administration of Justice at the United Nations, Doc. A/62/782 of 3 April 2008, Annex I. In the same report, the Secretary-General stated that providing non-staff personnel access to the formal system could pre-sent difficulties, particularly with regard to the ability of the formal system to address the various contractual terms and conditions of service relating to non-staff personnel. “Therefore, separate formal dispute resolution mechanisms might be needed to deal effectively with the various bodies of law applicable to staff members and non-staff personnel.”, para. 51.

146 Doc. A/62/782, see above. 147 Ibid., para. 14.


is often “prohibitively costly and lacks due regard for the special char-acter of employment disputes.” In its Resolution A/RES/64/233 of 22 December 2009 the General Assembly has requested the Secretary-General to provide “[a]n update concerning the exact number of per-sons other than staff personnel working for the United Nations and the funds and programmes under different types of contracts, including in-dividual contractors, consultants, personnel under service contracts, personnel under special service agreements and daily paid workers” in order “to analyse and compare the respective advantages and disadvan-tages, including the financial implications, ... bearing in mind the status quo concerning dispute settlement mechanisms for non-staff person-nel”, including possibilities of allowing access to UNDT and the Ap-peals Tribunal. This is a critical issue because “there have been instances where consultants and individual contractors have filed law suits di-rectly with national courts. Where such cases are filed in consultation with the office of legal Affairs, the Organization requests that the local authorities assert the immunity of the Organization to have such cases dismissed”148 Consequently, such persons are left without an effective remedy, or are resigned to an outcome that they believe to be unjust. Thus, the Statutes should be amended in line with the view of the Re-design Panel which would allow persons on special service agreements and individual contractors to access UNDT.

b. Judicial Experience

Judges of international administrative tribunals apply a composite body of law that governs the employment relationship between an Interna-tional Organization and its staff. These areas of law include interna-tional administrative law,149 contract law,150 public international law,151 and international institutional law. The law applied by United Nations decision makers and the United Nations internal justice system is a true hybrid of sources, both in the range of documentation which contains the internal law of the United Nations, and the areas of law that govern the employer-employee relationship. While the contract of employment is of key importance, the Staff Regulations and Rules, together with

148 Doc. A/62/782, see note 145, para. 15. 149 C.F. Amerasinghe, Principals of the Institutional Law of International Or-

ganizations, 2nd revised edition, 2005. 150 See e.g. Kaplan, UNAT No. 19 (1953) of 21 August 1953. 151 Stepczynski, UNAT No. 64 (1956) of 1 September 1956, paras 22-23.


other statutory sources combine to generate the legal regime that gov-erns the relationship between the United Nations and its employees. The internal law of an International Organization can be described “as being situated in and derived from the system of public international law and therefore being a part of public international law, while at the same time having a special character as a system akin to municipal law, particularly because it operates in an area in which municipal law has been traditionally known to operate.”152 Thus, a judge not only should be experienced in domestic administrative law, but also must have ex-perience in other areas of law, such as public international law to be best equipped to deal with the sometimes complex issues that may arise in international administrative tribunals.153 While the emphasis on judicial independence in the new regime should be welcomed, the requirement that a judge shall possess judicial experience in the field of administra-tive law, or the equivalent within one or more national jurisdictions is not likely to create a bench with the necessary background in order to produce a jurisprudence of the highest quality.154 Thus, it could prove 152 Amerasinghe, The Law of ... Vol. 1, see note 5, 21-23. 153 Amerasinghe stated that “most common law judges on IATs have problems

with all these features, unless, perhaps, they happen to be public interna-tional lawyers, which enables them to develop a broader, so to speak, civil law and international organizational orientation. Often, the purely com-mon law judges have tried to apply principles from the common law which are not relevant. This is a drawback to the smooth and proper functioning of international administrative tribunals.”, cf. Amerasinghe, see note 85, 293; Amerasinghe, Principles of … , see note 5, 243.

154 Ibid., it was also said: “unless a judge has had good exposure to public in-ternational law, administrative law in the civil system, or perhaps labor law in the common law system, it is difficult for him[/her] fully to appreciate the issues and subtleties of the law applied by IATs. This was exemplified when in a recent UNDT case, when a UNDT judge seemed to be confused as to the law that applies between an IO and its officials. The judge seems to have concluded that the only source of legal obligations operational be-tween the UN and its employees is the contract of employment, and he seems to create a complex link between administrative law and contractual law which is difficult to comprehend. He stated that ‘the relationship be-tween a staff member and the UN is governed entirely by the contract of employment which incorporates the various legal instruments concerning the Organization’s operations in so far as they impinge upon the staff member’s position as employee, together with such rights and obligations which are implied by virtue of the contract and by virtue of the contract alone’, and goes on to state that ‘a breach of administrative law principle in decision-making amounts to a breach of the contract.’”, Wasserstrom v.


useful if the Statutes of the newly created tribunals are amended to in-corporate a broader range of experience. The Redesign Panel made a recommendation that, if adopted, would have avoided the issues created by the present Statutes.155 Furthermore, a requirement that candidates for appointment at the tribunals have “judicial experience” eliminates several qualified candidates who might be experts and could be well-qualified to serve as judges of international administrative tribunals.156 UNDT and the Appeals Tribunal could greatly benefit if some of its members are experts in the area of international administrative law and other relevant areas of law, and may not necessarily have judicial ex-perience. In line with the views of the Redesign Panel, the Statutes should be amended by incorporating flexible guidelines that aim to at-tract the most suitable candidates to serve as judges.

c. Some Due Process Issues

aa. Oral Proceedings

As discussed in Part I., UNAT often decided cases in written form, and the concerned staff member did not have a right to an oral hearing. The fact that proceedings were predominantly in written form was subject to significant criticism. Thus, the Redesign Panel emphasized the im-portance of oral hearings generally, and stated that they should be a re-quirement where there existed disputed issues of fact.157 Pursuant to ar-ticle 7 (2)(e) of UNDT’s Statute, it is empowered to establish its rules of procedures in relation to oral hearings,158 and accordingly article 16 of the Rules of Procedure of UNDT159 states inter alia,

Secretary-General of the United Nations, UNDT Order No. 19 (NY/2010) of 3 February 2010, paras 27 and 29.

155 The Redesign Panel made a recommendation that, if adopted, would have avoided the issues created by the present Statutes, para. 129.

156 D.S. Wijewardane, “Some Organizational Issues”, in: Papanikolaou/ His-kaki, see note 61, 122: “it is always best to avoid absolute requirements – and it may well serve to derogate from the richness and of experience and expertise from which the system could benefit, especially in the develop-ment of a jurisprudence which cannot be described as the staple diet of any one national system.”

157 Redesign Panel, see note 3, para. 10. 158 See article 6 (2)(h) of the Appeals Tribunal’s Statute for the corresponding

provision. 159 A/RES/64/119 of 16 December 2009.


“1. The judge hearing a case may hold oral hearings. 2. A hearing shall normally be held following an appeal against an administrative decision imposing a disciplinary measure. 4. The parties or their duly designated representatives must be pre-sent at the hearing either in person or, where unavailable, by video link, telephone or other electronic means. 5. If the Dispute Tribunal requires the physical presence of a party or any other person at the hearing, the necessary costs associated with the travel and accommodation of the party or other person shall be borne by the Organization.” (emphasis added) In relation to the Appeals Tribunal’s approach on oral hearings, arti-

cle 18 of the Rules of Procedure of that Tribunal states “The judges hearing a case may hold oral hearings on the written application of a party or on their own initiative if such hearings would assist in the ex-peditious and fair disposal of the case.”

A few notable decisions have recently been rendered in relation to the issue of public hearings. For example, in Dumornay,160 it was stated that “the principle of open justice was a fundamental principle of the tribunal’s exercise of its jurisdiction”, and a hearing was required unless there were good reasons for not holding one.161 The United Nations has made a significant improvement in ensuring that staff members may access their right to an oral hearing, especially where there are disputed issues of fact, and specifically in disciplinary cases. Further, due to the fact that the organization will now bear travel costs when UNDT re-quires an oral hearing, and has adopted technology as a means of con-ducting oral hearings, there is little reason for judges to refuse to con-duct hearings when necessary and appropriate. While the above is a welcome step, the adoption of technology requires considerable funds, and the present levels of funding are not sufficient to facilitate hearings via this means.162 It will be critical that the issue of funding be redressed speedily.

160 Dumornay v. Secretary-General of the United Nations, UNDT No.

2010/004 of 13 January 2010. 161 Lesar v. Secretary-General of the United Nations, UNDT No. 2010/023 of

5 February 2010, para. 21. 162 Doc. A/65/373, see note 137, para. 34.


bb. Legal Representation

The issue of a lack of legal representation for staff members has arisen throughout the course of this article. One must not underestimate the importance of the equality of arms, and it is important to note the often vulnerable state of an employee in the old system in a dispute with the United Nations, especially in a situation where the United Nations is armed with professional lawyers, and the employee did not possess any effective access to professional and prompt legal advice. The Office of Staff Legal Assistance has been established with the aim of providing professional and prompt advice to staff, but is the scheme working ef-fectively in practice? Pursuant to article 12 of the Rules of Procedure of the UNDT, a party may present his or her case in person or may desig-nate counsel from the Office of Staff Legal Assistance or private coun-sel. A party may also be represented by a staff member or a former staff member of the United Nations or one of the specialized agencies.163 The rules on legal representation in the new system have not really changed since the pre-reform days. The real issue relates to the practical manner in which staff members may seek such representation.

The Office of Staff Legal Assistance is responsible for the proper functioning of the program of legal assistance to staff members in the internal justice system, including in administrative, disciplinary and ap-pellate proceedings before UNDT and the Appeals Tribunal.164 Its staff are located in Addis Ababa, Beirut, Geneva, Nairobi and New York.165 Its counsel may only decline to act if inter alia, the client persistently fails to cooperate with counsel, or engages outside counsel to handle his/her legal representation.166 Thus, the machinery to ensure the equal-ity of arms has been significantly improved. But the pertinent question is whether the Office has had a positive impact in practice?

During the period 1 July 2009 until 1 December 2009, 29 per cent of staff members were not represented by legal counsel before the UNDT. The Office provided legal assistance in 35 per cent of cases before the tribunal, 19 per cent of staff chose to be represented by private counsel

163 Article 13 of the Rules of Procedure of the Appeals Tribunal for the corre-

sponding rule. 164 Doc. ST/SGB/2010/3, see note 99, para. 7.1. 165 Guiding Principles of Conduct for Office of Staff Legal Assistance, March

2010, para. 7.3, <www.un.org/en/oaj/legalassist>. 166 Ibid., Principles 10-11.


and 17 per cent of staff were represented by volunteers who were either current or former staff members of the organization.167

The Office currently acts in 72 per cent of cases before the UNDT in New York; 54 per cent of cases in Geneva; and in approximately 65 per cent of cases in Nairobi.168 The reasons why a significant number of staff were not represented by the Office do not seem to be available at this stage. During the last reporting period, the Office handled a total of 938 cases. It has resolved 510 of those cases, and as at 30 June 2010, it had 428 active cases. There is an increasing trend for staff to approach the Office for the resolution of both formal and informal disputes, which will undoubtedly lead to an increase in its staffing levels.169

It must be mentioned though that the Office is suffering from a hu-man resources gap as a whole,170 which has to be filled if success is to be achieved. A recent positive development is that the Office established the Trust Fund for Staff Legal Assistance to gain additional resources for its activities.171 Given that the Office is still in its infancy, it has to be seen how it will develop.

6. Some Final Remarks on the New System of Internal Justice

In its first year of operation, UNDT has rendered some significant judgments in relation to the various kinds of internal disputes that arose in the United Nations.172 Furthermore, within a short period of opera-tion, UNDT has received a total of 510 cases, of which 169 were trans-ferred from the abolished JABs and JDCs; 143 were transferred from UNAT; and 198 were new cases filed between 1 July 2009 and 30 June 2010. In that reporting period, UNDT has rendered 213 judgments. As at 30 June 2010, approximately 290 cases were pending, including 37 cases that were transferred from the old advisory bodies; 131 cases from

167 A. Terekhov, Activity Report of the Administration of Justice, 1 July-31 De-

cember 2009 issued on 12 May 2010, para. 27; for the latest statistics, the OAJ website <www.un.org/en/oaj/unjs/statistics.shtml>.

168 Doc. A/65/373, see note 137, para. 55. 169 Ibid., para. 51. 170 Second Activity Report of the Office of Administration of Justice, 1 July

2009 – 30 June 2010, 56, <http://www.un.org/en/oaj/unjs/resource.shtml>. 171 Ibid., 57. 172 See the cases cited in Appendix I of Terekhov, see note 167.


UNAT; and 122 newly filed cases.173 The three Registries of the Dispute Tribunal provided substantive, administrative and technical support to the tribunal,174 and facilitated the vast amount of decisions that have been made. The above statistic is remarkable given that UNAT only de-livered approximately 25 judgments per year since its inception.175

Furthermore, the Appeals Tribunal appears to be performing a criti-cal role in the internal justice regime. The experience thus far has evi-denced that concerned parties are frequently accessing the Appeals Tri-bunal. Remarkably, the number of cases filed before the Appeals Tribu-nal during the present reporting period is comparable to the number of cases filed at the Administrative Tribunal of the ILO.176

However, there have arisen certain problems respecting compliance with UNDT orders, sparking strong reactions.177 Compliance issues go to the core of the regime of dispute resolution. In a few notable cases, the Secretary-General refused to comply with the orders made by UNDT.178 Concerning the administration’s non-compliance with or-ders, in a recent case, the applicant sought the disclosure of certain documents concerning his non-selection to a particular post as he sus-pected the decision was made by having regard to irrelevant considera-tions.179 Judge Adams made an order requiring the administration to produce certain documents and was troubled by the fact that certain misleading statements appeared to have been made by the Administra-tive Law Unit to the applicant, where the applicant first sought admin-istrative review.180 However, the administration plainly refused to pro-duce the documents on the basis of inter alia, confidentiality.181 This

173 Doc. A/65/373, see note 137, para. 16. 174 Activity Report of the Administration of Justice, see note 170, para. 3. 175 See a list of all UNAT’s judgments delivered in English (it is not apparent if

all French judgments were translated) <http://untreaty.un.org/una t/Juggements_Englis_By_Number.htm>.

176 Doc. A/65/373, see note 137, paras 26 and 47. 177 See e.g., M. Lee, “Ban’s UN Refuses Summons in Bertucci Case. Of Con-

tempt and Rule of Law”, <www.innercitypress.com/undt1bertu031110.ht ml>.

178 See e.g. Wasserstrom, see note 154. 179 Bertucci v. Secretary-General of the United Nations, UNDT Order No. 40

(NY/2010) of 3 March 2010, para. 6. 180 Bertucci, Order No. 40, see note 179, paras 4 and 46. 181 Bertucci, UNDT Order No. 42 (NY/2010) of 8 March 2010, for the ad-

ministration’s reasons submissions as to why the applicant’s case should fail


was despite UNDT stating that the confidential aspects from the rele-vant documents could be redacted.182 In another order relating to the same case, it was stated that non-compliance is a “direct attack on the rule of law.”183

Complying with the independent judgments and orders of inde-pendent tribunals that the United Nations has itself created is an inher-ent aspect of operating within the rule of law. It is all well and good to create tribunals that are compliant with due process standards, but if the administration later on refuses to comply with the judgments and or-ders, the scheme is rendered meaningless.

There do exist certain other cases where the administration breached the applicant’s due process rights. In Kasmani,184 notwithstanding arti-cle 10 (8) of the Appeals Tribunal’s Statute stating “The applicant shall receive a copy in the language in which the appeal was submitted unless he or she requests a copy in another official language of the United Na-tions”, the applicant received a judgment in French while his applica-tion was submitted in English. Then, despite the fact that the applicant could not understand the judgment, he was immediately sent a notice of separation. This was manifestly contrary to the applicant’s due process rights. In that regard, UNDT stated,

“It is with grave concern that the Tribunal feels compelled to note that the conduct of the Respondent does not bode well for a ‘decen-tralized system of administration of justice consistent with the rele-vant rules of international law and the principles of the rule of law and due process.’”185 The above issue was perhaps caused due to the lack of translation

services as opposed to any malicious intent. This issue of the adequacy of translation services presently available has surfaced. Thus, the Secre-tary-General recently suggested that “adequate funds be made available to allow for the translation of all judgments in both working languages

see Bertucci, Order No. 40, see note 179, paras 11 and 46. The administra-tion also argued that that appointments to an Assistant Secretary-General post were not justiciable for certain reasons, however, that argument was correctly rejected.

182 Ibid., para. 47. 183 Bertucci, UNDT Order No. 59 (NY/2010) of 26 March 2010, para. 9. 184 Kasmani v. Secretary-General of the United Nations, UNDT Order No. 75

(NBI/2010) of 7 May 2010. 185 Ibid., para. 15.


of the United Nations and into the official language in which the origi-nal application was submitted.”186

It is in the interest of the United Nations to respect the judicial character of the newly created tribunals. While significant improve-ments in the internal justice system of the United Nations have been made, to win the confidence of staff in the new system, it is critical that it fully and fairly participates in the newly created internal dispute reso-lution mechanisms.

Before concluding, the task will remain incomplete if the informal mechanisms of dispute resolution are not discussed briefly given their central role in the new system.

7. The Informal Dispute Resolution System

Informal means of dispute settlement both have the potential of resolv-ing a conflict at a very early stage with relatively little expense and also greatly enhance the potential of positive outcomes.187 It has been stated,

“Staff members who are involved in conflict situations are encour-aged first to seek an informal solution. They may find informal means to be preferable in that they may yield results more quickly than formal ones, or may even lead to a positive negotiated outcome that could, for various reasons, not be achieved through a formal process.”188 Informal dispute resolution as a method of settling staff disputes is

thus of great importance as a vast proportion of disputes are resolved via informal means, and informal means facilitate the resolution of dis-putes at an early stage with relatively less anxiety for the concerned staff member. There existed several problems with the pre-reform informal system.

186 Doc. A/65/373, see note 137, para. 241. 187 It has been said that resolving disputes through negotiation, mediation and

other alternative means is usually quicker, and often proves to be a less stressful and less cumbersome process than litigation. A Guide to Resolv-ing Disputes, Administration of Justice in the United Nations, 2009 avail-able at <http://www.un.org/en/oaj/unjs/resource.shtml>.

188 Information Circular, see note 26, para. 6.


a. The Pre-Reform Informal Dispute Resolution System

In Information Circular Doc. ST/IC/2004/4 dated 23 January 2004 ti-tled “Conflict resolution in the United Nations Secretariat”, the scheme for dispute resolution was neatly encapsulated. Some key pre-reform informal procedures included:

� mediation (by supervisors or other relevant persons);189 � recourse to the Ombudsman;190 � access to the Panels on Discrimination and Other Grievances;191 � access to Staff Counsellors;192 � access to the Panel of Counsel (pre-litigation role);193 � role of the Staff Representative Bodies; and � Joint Appeals Board as facilitators of conciliation.194 The above mechanisms were subjected to valid criticisms. There ex-

isted numerous bodies that allegedly sought to resolve disputes infor-mally, and it is only natural that a staff member would face immense confusion over to whom to turn in a given situation. The Redesign Panel noted that supervisors, human resources officers and executive officers, staff counsellors, staff representative bodies, the Panel of Counsel in its pre-litigation consultative role, and the departmental fo-cal points for women did not constitute independent third parties that could reconcile disputes, but they rather provided preliminary advice or counsel to staff members about their problems.195 While the above

189 Ibid., para 9. 190 The Ombudsman’s office was established in 2002. See Secretary-General’s

Bulletin Doc. ST/SGB/2002/12 of 15 October 2002. The Ombudsman has the authority to consider conflicts of any nature related to employment by the United Nations that are brought to his or her attention by staff mem-bers. The Ombudsman does not have decision-making powers in a conflict, but facilitates conflict resolution, using any appropriate means, including advising the parties and making suggestions or recommendations on ac-tions to settle conflicts, Information Circular, see note 26, paras 10-12.

191 Information Circular, see note 26, para. 13. 192 The Office of the Staff Counsellor is required to provide counseling, in-

formation and assistance to staff on issues concerning conflict resolution, see Doc. ST/SGB/1998/12 of 18 June 1998, 6.

193 See Information Circular, see note 26, paras 15-16. 194 Ibid., para. 20. 195 Redesign Panel, see note 3, para. 37.


played a useful role, they did not constitute an alternative, or play a complementing role to the formal justice system. Thus, the regime left much to be desired.

b. The Post-Reform Informal Dispute Resolution System

In the reformed system, there has been a strengthening of the Om-budsman’s office,196 and greater emphasis is now placed on the Om-budsman and Mediation Services. The Ombudsman’s office has been placed at the center of internal dispute resolution in order to streamline the informal dispute resolution process.197 Mediation is also acquiring an increasingly important role. In a recent case, UNDT sent a case to mediation, and in doing so, said that the case at hand was one that was suitable for mediation as the mediation process would give the parties an opportunity to reach a satisfactory solution in what appeared to be a case of error and misunderstanding.198 While it is not the intention of this article to deal comprehensively with the informal system, it is rele-vant to briefly highlight the critical role it is now playing in dispute resolution. In approximately the first half of 2010, there was a 33 per cent increase in the use of the overall services of the Office of the United Nations Ombudsman and Mediation Services. Further, in the second half of 2009, 79 per cent of the cases received did not proceed to UNDT.199 As there has been a comprehensive reform of the system, most of the pre-reform methods of informal dispute resolution are no 196 Provisional Staff Rule 11.1(a) states: “A staff member who considers that

his or her contract of employment or terms of appointment have been vio-lated is encouraged to attempt to have the matter resolved informally.”

197 For further information, see Report of the Secretary-General: Towards an Accountability System in the United Nations Secretariat, Doc. A/64/640 of 29 January 2010, paras 78-82: “Although informal dispute resolution is not new to the United Nations, greater emphasis and resources are now being dedicated to fostering a culture of informal settlement. The new focus on informal dispute resolution attempts to solve problems at an early stage, thus reducing the number of cases going to the formal system. The United Nations Ombudsman and Mediation Services, including the Mediation Di-vision which has mediation resources in many regions, is at the centre of the informal system.”

198 Adrian v. Secretary General of the United Nations, UNDT Judgment No. UNDT/2009/053 of 22 October 2009.

199 Report of the Secretary-General: Activities of the Office of the United Na-tions Ombudsman and Mediation Services, Doc. A/65/303 of 16 August 2010, 1.


longer of relevance, as many bodies, such as the JABs, the Panel of Counsel and the much criticized Panels on Discrimination and Other Grievances, no longer exist. As a final comment, a dispute is best dealt with at its inception. The new emphasis on the informal settlement of disputes should be welcomed as informal means of dispute resolution deal with disputes at an early stage, thereby saving costs and the stress of formal litigation.

III. Conclusion

The pre-reform internal justice regime at the United Nations was ex-traordinarily slow, unprofessional and did not accord concerned staff members the most basic due process rights as enshrined in the various human rights treaties. Therefore, there existed an absence of the rule of law in respect of the management of internal disputes at the United Na-tions. According staff members of an international organization their due process rights in cases of internal disputes is necessary in order to ensure that an international organization operates within the rule of law. In the context of administrative law, the rule of law manifests itself in the form of due process, which is a set of principles that includes giv-ing adversely affected parties an opportunity to seek review of an ad-verse decision at an independent and impartial tribunal; a right to an appeal; a right to a reasoned judgment; and a right to legal representa-tion. Furthermore, given the inability of staff members to seek justice in municipal courts due to the immunity enjoyed by the United Nations, it is of supreme importance that the internal dispute resolution mecha-nisms within the United Nations constitute a reasonable alternative means of resolving internal disputes.

Part I. concerned the pre-reform regime. It was shown that the en-tire dispute resolution process was plagued with faults. Simple cases took years to resolve and there was a manifest breach of the due process rights of staff members involved in the dispute resolution process. The JDCs and JABs, where a staff member could present his/her case before accessing UNAT, did not constitute an independent and impartial body that could make binding decisions; there existed a one tier justice sys-tem which violated the right to an appeal; often staff members could not access professional lawyers; and oral hearings were not held fre-quently enough. These are just some of the flaws of the old system. The United Nations itself was in manifest breach of the due process rights of its own staff. A fundamental reform of its internal justice system was


long overdue. The United Nations has now fundamentally transformed the manner in which internal disputes are resolved, and Part II. dis-cussed the features of the new system.

Undoubtedly, the reform of the internal justice system of the United Nations is a genuine attempt to ensure that justice rendered within the United Nations is efficient and consistent with international standards of justice. Several of the shortcomings of the old system appear to have been remedied by the establishment of a two-tier, independent and im-partial system of justice. The establishment of the Office of Administra-tion of Justice as an independent office is a significant step towards im-proving the efficiency of the system and granting a degree of institu-tional independence to the justice system. Furthermore, the establish-ment of the Office of Staff Legal Assistance is likely to substantially en-hance the extent to which staff members can seek legal representation.

The UNDT is an independent and impartial tribunal that is empow-ered to make binding decisions. Its Statute grants it the power to hold oral hearings and make binding orders. A truly judicial first instance body with Registries in three locations has been established. The Ap-peals Tribunal hears appeals against the decisions of UNDT, and hence, staff members can now appeal to an independent and impartial court This is a model that appears sound, and that could act as a model for other regimes.

While it is apparent that much has been done, staffing issues remain a challenge for the internal justice system generally.

In this respect the General Assembly, “Notes that the current terms of the ad litem judges are about to ex-pire, while the backlog remains to be cleared; Notes with apprecia-tion that the two half-time judges already appointed have facilitated the constitution of three-judge panels that will conduct hearings on important matters; Recalls paragraphs 48 and 49 of its resolution 63/253, and requests the United Nations Dispute Tribunal to ensure that the best possible use is made of the three ad litem judges in or-der to reduce the existing backlog of cases before the United Na-tions Dispute Tribunal; Requests the Secretary-General, in order to attract a pool of outstanding candidates reflecting appropriate lan-guage and geographical diversity, different legal systems and gender balance, to advertise Tribunal vacancies widely in appropriate jour-nals in both English and French, and to disseminate information re-lating to the judicial vacancies to Chief Justices and to relevant asso-


ciations, such as judges’ professional associations, if possible, before those vacancies arise.”200 Furthermore, the issue of access still has not been resolved, and it is

important that persons of all types of contracts with the United Na-tions should be able to seek recourse to the internal justice system. Moreover, as was discussed in Part II., the qualifications required be-fore a person is eligible to be a judge of the newly established tribunals should be reconsidered. The comprehensive reforms made within the United Nations must be welcomed. It is still too early to reach conclu-sions about its success. However, it appears that there is now present the machinery that is likely to facilitate effective delivery of justice that is in compliance with international standards. For that system to work effectively it is essential to have its decisions respected, otherwise, it will deliver much less than it promised, and than was expected.201

200 Report of the Fifth Committee, Administration of Justice at the United

Nations, Doc. A/65/650/ of 29 December 2010, paras 42 et seq. 201 It is in line with this findings that the General Assembly stated, “Decides to defer until its sixty-sixth session a review of the statutes of the

Tribunals, in the light of experience gained, including on the efficiency of the overall functioning of the Tribunals, in particular regarding the number of judges and the panels of the United Nations Dispute Tribunal,” ibid., para. 46.

Book Reviews

Hugo J. Hahn/ Ulrich Häde: Währungsrecht C.H. Beck, 2nd edition 2010, 356 pages, ISBN 978 3 406 58525 8 Almost twenty years ago, Hugo Hahn delivered the first edition of “Währungsrecht” (Monetary Law) to the German-speaking public. Unlike Hahn, who had in fact to write a wholly new study, Ulrich Häde, his former assistant, could draw heavily upon the parental advice of his older colleague until he died in March 2010 just before the book was finished.

Häde decided to change not only the rather unique rhetoric of Hahn but also to widen the perspective of the book. In 1990, the book fo-cused mainly upon national (German) monetary law and included a very lucid assessment of the monetary union between West and East Germany, which had been established some months before the (then) two Germanys re-united. Since the introduction of the Euro in 1999, monetary law in the (then 11, now 17) Member States of the Economic and Monetary Union (EMU) is primarily part of European Union law. Thus, the main fourth Part of the book deals almost exclusively with EU and especially EMU issues.1

The book is divided into five Parts containing altogether 29 Chap-ters. Part A. entitled “Money and Currency – Foundations” starts with explaining some main steps in the history of money – from coins to 1 Häde had some very intensive discussions with me about the direction as

well as the scope of modifications at the start of his work and also later on, during the process of re-writing, since he thought that the comments of another scholar who had worked with Hahn closely for more than two decades might be helpful when trying to adapt Hahn’s concepts and thoughts to more recent developments. It has been a great pleasure for me to be asked for critical recommendations and I am very glad that Häde was always ready to accept my commentaries even when I (rarely) differed from his opinions.


electronic money – as well as three basic functions of money: general medium of payment, value storage, unit of account and/or payment. Häde continues by analyzing further fundamental categories, discussing definitions of currency, monetary policy, monetary and central banking law, law of foreign exchange and, last but not least, international mone-tary law.

Chapter 3 of Part A. deals with money in a specific legal sense, i.e. with its different legal aspects (quoting Mann’s famous study). Money has an ambiguous nature being both a factual and a normative phe-nomenon, thus there is no single concept of money. Häde therefore draws a clear distinction between the concepts of (public) monetary law and private (civil) law. Part A. closes with short remarks on the rela-tionship between money and units of account, also giving some exam-ples of the latter, like “currency basket” related units.

Part B. focuses on issues of monetary value. The principle of “nominalism” is dealt with in Chapter 5 and starts with conceptual problems, analyzing the scope of application of this principle. Next, the author shows various ways for contracting parties to exclude the effects of nominalism by using index and similar clauses (“Wert-sicherungsklauseln”) also analyzing their legal conformity with German constitutional law as well as with EU law.

The following Chapters 7 and 8 complement the discussion on the prevalence of “nominalism” or “valorism” by first sketching relevant jurisprudence of German federal (civil and labor) courts and then ad-dressing the issue of adjusting public law monetary obligations by ask-ing if a creditor’s claim to this end could be derived from the fundamen-tal right of (private) property.

The second main topic of Part B. concerns securing the stability of monetary value. Häde distinguishes between a (normative) mandate based upon (national) constitutional law obliging the central bank as well as other governmental bodies to take utmost care of monetary sta-bility on the one hand and individual property rights on the other. Whereas the concept and protection of property under German consti-tutional law seem rather broad, they neither exempt the actual mone-tary value of assets nor the value of money as such from market risks.

A shorter Part C. concentrates upon the development of German monetary and central banking law. Although there is little doubt that anyone interested in issues of monetary law and policy will be able to derive much valuable insight from the fine descriptions of the period up to 1945, the end of the Third Reich, the period from the Allied occupa-

Book Reviews 541

tion until the reunification of Germany and finally participation in the EMU, Chapters 10 and 11, could perhaps have been somewhat less ex-tensively detailed for the contemporary reader. Anyway, they should be a solid foundation for the final Chapter of Part C. where the author elaborates very impressively upon the role and status of the Deutsche Bundesbank (German Central Bank) in current German central bank-ing law. Häde not only points to various links between the earlier Ger-man construction and the European system of central banks but he also clearly explains the German constitutional framework for the Deutsche Bundesbank and its autonomy as well as its organizational features and he shows the content and scope of different tasks to be fulfilled by the Deutsche Bundesbank outside its competences as a component of the European System of Central Banks (ESCB).2

Part D. contains the essence of the book. It starts with some histori-cal remarks on European monetary integration until the conclusion of the Maastricht Treaty, followed by a description of how the Euro was introduced, including comments on later modifications until the com-ing into force of the Lisbon Treaty in late 2009. In more than half of the Chapters following, the author paints an impressive picture of various facets of the EMU. Since monetary integration lies at the core of this on-going project, Häde decided quite correctly to put specific eco-nomic aspects at the end of Part D. where he looks more closely at some important issues of the complementary, but less consolidated “economic union”, like coordination of and surveillance on Member States’ economic policies, prohibitions laid down in arts 123 et seq. of the Treaty on the Functioning of the European Union (TFEU) and budgetary discipline within the EU (including an assessment of the Sta-bility and Growth Pact).

Chapters 15 to 20 focus on important elements of the EMU, begin-ning with fundamental principles, in particular pointing to price stabil-ity as primary aim of EU monetary policy, and then describe “institu-tions of the monetary union”, i.e. the eurosystem, as well as the com-ponents at both levels, i.e. the European Central Bank and national cen-tral banks. Further Häde deals with the system’s internal structure, as well as the legal status of the European Central Bank and the ESCB.

Next, the author makes an assessment about the ESCB’s tasks con-centrating mainly on monetary policy but also analyzing various 2 The ESCB comprises the ECB (European Central Bank) and the national

central banks of all EU Member States (article 282.1 of the Treaty) whether they have adopted the Euro or not.


(broader) participatory and advisory rights of the European Central Bank. In Chapter 18, Häde discusses the legal nature of the European Central Bank and national central banks activities since the legal acts of the ESCB are at least, in detail, different from those of other EU organs. Moreover, the ESCB Statute provides for rather unique guidelines and instructions to be used by European Central Bank organs (Governing Council, Executive Board) to strongly influence the activities of one or all national central banks. The discussion on the rather complex issue of ways and means of legal redress (central banks being in the role either of claimants or of defendants) is completed by some thoughts about contractual and tort liability, once again in respect both of the European Central Bank and the national central banks.

The last Chapter on central topics of the EMU comes back to prob-lems of the independence of the European Central Bank, i.e. its founda-tions and goals, the limits of national central banks autonomy, different aspects (institutional, functional, personal, financial), and finally asks whether the specific shape of independence of the ESCB which may be attributed to the EU primary law does conform with the principle of democracy.

The following Chapters (21 to 26) deal with some further aspects of EU monetary law, although the general line of argument might not al-ways be wholly transparent and consistent. For example, why were is-sues of dissolving the EMU put almost at the end of Part D. whereas the law of Euro coins and notes is dealt with in Chapter 23, after Häde has listed several “other actors” of monetary policy and before he ana-lyzed “external monetary policy”?

For sure, Häde hardly neglects any really important issues of EMU law. Thus, in a very interesting, although again somewhat heterogenous Chapter 21, he looks at public relations issues at first, then evaluates the relationship between the European Central Bank and other EU institu-tions as well as between the ESCB and EU Member States. Thereafter, the author points at the “Eurosystem Mission Statement” and at codes of conduct for European Central Bank staff, and finally, analyzes the provisions on (free) access to European Central Bank documents.

Chapter 25 entitled “Member States outside the Eurozone” starts with describing the so-called “pre-ins”, i.e. EU Member States the status of which in the closer eurosystem is an exceptional one, goes on to explain the special rules concerning Denmark and the United King-dom, and then ends with asking whether a unilateral introduction of the Euro as currency by a “pre-in” country would be lawful under the TFEU.

Book Reviews 543

The final Part E. of the book intends to give an overview of global aspects of monetary law. Although some 15 pages – or just 5 percent of the book’s whole volume – are hardly enough to sketch the most im-portant topics thereof, Häde was right to add two Chapters to his study. The first dedicated to the International Monetary Fund, the sec-ond mentioning some other players in international monetary and fi-nancial relations, since 21st century multi-level economic and monetary governance is characterized by interdependence of and interaction be-tween international (global), regional (e.g. European) and national ac-tors and as cross-border phenomena can only be treated by intensified cooperation.

The new edition of “Währungsrecht” manifestly demonstrates how monetary law is transgressing the era of monetary sovereignty of single (nation) states and becoming internationalized, or at least European-ized. But although the EU’s Economic and Monetary Union might have been a success during the first ten years of its existence, its role as a model for other areas of closer monetary integration all over the globe seems to have been cast into doubt since early 2010 when some Euro-zone members got into grave economic difficulties and IMF financial assistance was applied for.

If I had the choice to select between “Währungsrecht” and the sixth edition of “Mann on the Legal Aspect of Money”, written by Charles Proctor and published in 2005, I would certainly prefer the former book. It may be shorter than the second one, but it seems better to me in all other important aspects. I seldom found a book with fewer (and only minor) mistakes in both form as well as substance. You will find not only much detail on monetary law and on related fields when using the index at the end of the book, but moreover, every person interested in legal aspects of money and currency will find profound knowledge about a phenomenon that “makes the world go round”.

Prof. Ludwig Gramlich, TU Chemnitz,

Faculty of Economics and Business Administration

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