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UNITED NATIONS ASSOCIATION

In The Democratic Socialist -.Republic.)" .-_:• • ...

OF SRI LANKA"Excellency Kofi ANNAN . . ' . . ...^ •: " • ' • . •

Secretary-General of the UNITED NATIONS ^;. ' . •EXECUTIVE OFFICE OF THE SECRETARY-GENERALUnited Nations, New York, NY 10017, . 'USA • " " • • ' ' ' "' ' '

01 January, 1997

Fax to - 212 963 4879(original to be posted)

YOUR EXCELLENCY

On your formal assumption of office as the seventh Secretary- General of the United Nations,please accept our humble duty and loyal greetings. .We send you our good wishes for a most successful term of office and assure you of ourcomplete co-operation and goodwill as one of the oldest world wide national affiliates ofWFUNA - The World Federation of United Nations Associations, as a Peace Messenger of theUnited Nations and as a working partner of the .Department of Public Information (DPI)

At the beginning of your term of office, you are" confronted with the non-payment of dues bymost Member-States. Our country Sri Lanka with a size of only 25,000 square miles and apopulation of between 18-20 million peoples has ALWAYS PAID ITS DUES IN FULL ANDON TIME TO THE UNITED NATIONS during the entire period of 42 years it has been aMember-State. As Sri Lankans we are consistently proud of this enviable record, whencompared to the reluctance and ambiguity displayed by larger, developed and more politicallypowerful nations which apparently lack national pride.

We applaud your message to We the Peoples of United Nations upon taking Office and areinspired by the determination and no-nonsense attitude which you have, with your vastexperience in the international civil service of the United Nations, brought to your new office.We agree with you totally.If you will make optimum use of United Nations Associations world wide as totally dedicatedteams of volunteers in the service of the United Nations, there is perhaps nothing we cannotachieve togf/ther.

We will, within the course of the next two weeks, be addressing two special letters to youthrough the Secretary-General of the WFUNA, which will be self explanatory and which wetrust will receive your personal attention in view of the importance of the issues which the twoletters will raise.

Please accept Mr Secretary-General, the assurances of our highest consideration.

Most Sincerely Our new contact numbersTelephone -0094-34-32123

. • Fax - 0094-34-34045E-Mail - [email protected]

-* Telegrams -SLUNA,; 10 Mihindu Mw,1 Madakumbura, Panadura

Kumaran FERNANDOSECRETARY-GENERAL

NATIONAL SECRETARIAT "GENERAL, THIRTY NINE UPON ONE, CYRIL JANSZ MAWATHA, PANADURA.

FOUNDED ON 19 AUGUST 1950 AND AFFILIATED WITH WFUNA - THE WORLD FEDERATION OF UNITED NATIONS ASSOCIATIONS

Telephone: 034-32123 ' Telax : 21979 SALAKA CE (Att: Mr: KOD! / UNASL) Telegrams: SLUNA, SAGALA, PANAQURA.

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The United Nations at 50:

Proposals for Improving Its

Effectiveness

Containing Reports of theWorking Group on

Improving the Effectiveness of the United Nationsin Advancing the Rule of Law of the World,

Reports of the Working Group onUnited Nations Specialized Agencies and the International

Atomic Energy Agency,

andRelated Reports of the

Section of International Law and Practice

Edited by John E. Npyea

Section of International Law aridAmerican Bar Association

© American Bar Association 1997Printed in the United States of AmericaAll Rights Reserved

ISBN: 1-§3&Z3,36&4~ •- .

Nothing herein shall be construed as representing the opinion, views, oractions of the American Bar Association unless the same shall have beenfiirfet approve&ib'y the House of Delegates or the Board of Governors.

Published under the direction of the Publications Board of the ABASection of International Law and Practice.

Dedicated to

Louis B. Sohn

Contents

Preface vii

I. Introductions 1

A. General Introduction: The United Nations, the United States,and the Role of the American Bar AssociationBy Louis B. Sohn and H. Francis Shattuck, Jr 1

B. Special Introduction: Improving the Effectiveness of the UnitedNations in Advancing the Rule of Law in the World* 7

II. International Courts , 9

A. Recommendation and Report on U.S. Acceptance of theJurisdiction of the International Court of Justice* 11

B. Recommendation and Report on an International CriminalCourt* 16

C. Recommendation and Report on an International CriminalTribunal for the Former Yugoslavia 21

III. Use of Force, Peacekeeping, and Nonprolif erationof Weapons 29

A. Recommendation and Report on Arms Control andNonproliferation* 31

B. Recommendation and Report on Peacekeeping, Peacemaking,and Peace Enforcement* 45

C. Recommendation and Report on the UN Response to Iraq'sInvasion of Kuwait 56

IV. Human Rights 61

A. Recommendation and Report on the International Protectionof Human Rights* 63

* Prepared by the Working Group on Improving the Effectiveness of the UnitedNations in Advancing the Rule of Law in the World.

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vi The United Nations at 50

V. UN Specialized Agencies 71

A. Recommendation and Report on the World HealthOrganization** 73

B. Recommendation and Report on the International MonetaryFund and the World Bank Group** 84

C. Recommendation and Report on the International LaborOrganization** 107

D. Recommendation and Report on the International AtomicEnergy Agency** 118

E. Recommendation and Report on the United NationsEducational, Scientific and Cultural Organization** 131

F. Recommendation and Report on the Food and AgricultureOrganization** 142

VI. Oceans and the Environment 159

A. Recommendation and Report on the United NationsConvention on the Law of the Sea 161

B. Recommendation and Report on Protection of the GlobalEnvironment 166

VII. The Development of International Law 177

VIII. Payments to the United Nations 179

A. Recommendation and Report on U.S. Payments to the UnitedNations 181

B. Letter from ABA President George E. Bushnell, Jr., ConcerningU.S. Payments to the United Nations 185

Appendices

A. Charter of the United Nations 187B. Statute of the International Court of Justice 217C. Selected International Court of Justice Decisions 233D. United Nations-Related American Bar Association Resolutions,

1971-1996 239E. Contributors 247

** Prepared by the Working Group ori United Nations Specialized Agencies andthe International Atomic Energy Agency.

Preface

The United Nations Organization has evolved over the years. Fromits founding at the close of World War II with 51 original Member States,the Organization's membership has increased to 185. UN endeavorshave changed as well, reflecting changing crises and developments inthe world. The basic goals articulated in the UN Charter, however,including the promotion of international peace and security, respect forhuman rights, and self-determination of peoples, are as essential todayas when the Charter was drafted. The United Nations remains the onlyuniversal mechanism available to pursue these important goals.Countries work within the UN system to seek consensus on many poli-cies and actions, for the Organization is not, nor was it ever intended tobe, a world government. Although important decisions by the UNSecurity Council are binding on Member States, such decisions may bevetoed by any one of the Security Council's permanent members (theUnited States, the United Kingdom, France, China, and Russia). Despiteits limited powers, the United Nations has contributed, and in the futureis likely to contribute, to solving the world's problems and advancingthe rule of law in the world.

One of the stated goals of the American Bar Association is "toadvance the rule of law in the world," and it is this goal that explains theABA's involvement with the United Nations. Most of the proposals inthis book are the result of a two-year effort by the ABA to make a sub-stantive contribution to the UN's 50th anniversary in 1996. These pro-posals are the products of two working groups formed by the ABASection of International Law and Practice under the general project co-chairmanship of Louis B. Sohn and Jay M. Vogelson: the Working Groupon Improving the Effectiveness of the United Nations in Advancing theRule of Law in the World, directed by Kathryn S. Mack; and theWorking Group on United Nations Specialized Agencies and theInternational Atomic Energy Agency, chaired by H. Francis Shattuck, Jr.

The Reports in this book all discuss the problems with which theUnited Nations has had to deal in the last fifty years, its successes, andthe difficulties it has encountered. They also contain suggestions for pos-sible improvements in the work of the United Nations and its principalagencies. While the general public is familiar to some extent with therole of the United Nations in working to maintain international peaceand security, little attention is paid to the quiet activities of the UnitedNations and its many specialized agencies, committees, and commis-sions that affect our daily life. Thus, the Reports deal not only withpeacekeeping, arms control, the International Court of Justice, and other

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viii The United Nations at 50

international tribunals, but also with problems of health, hunger, andlabor, respect for human rights, international financing and economicdevelopment, control of the use of nuclear energy for peaceful purposes,educational, scientific, and cultural matters, and the protection of theresources and uses of the sea and of the global environment. Finally,there is consideration of the UN's financial crises, and of the importanceof the United States fulfilling its legal obligation of paying its debts. Theintroduction by Louis B. Sohn and H. Francis Shattuck, Jr., prepared forthis volume, provides an overview of some of the important contribu-tions of the United Nations, notes important themes concerning the rela-tionship of the United States to the United Nations, and highlights cur-rent developments.

All the Recommendations in this volume have been approved by theHouse of Delegates of the American Bar Association, which representsmore than 300,000 U.S. lawyers. The House of Delegates, however, doesnot approve the Reports that accompany the Recommendations; theseReports are the sole responsibility of the Section of International Lawand Practice and of the other sections and committees that haveendorsed them. Technical changes only have been made in a few of theReports, in order to meet the Section's formatting requirements for bookpublication. The few omissions from the original Reports are indicatedby ellipses, and explanatory additions appear in brackets.

The advice and support of Louis Sohn, Fran Shattuck, and JayVogelson greatly improved this compilation. Thanks also go to SusanFrensilli Williams, the former Publications Director of the Section ofInternational Law and Practice, and Steve Pazdan, her successor, fortheir advice and able production assistance; to Bill Bryan of the Sectionstaff for his help with production; and to Laurie Kadoch of RogerWilliams University School of Law for her helpful organizational sug-gestions. Gerlinde Celona, Theresa Kruczek, Cheryl Meegan, Cindy Ray,and D'Ellen Roye provided essential technical assistance. Janet Balch,Stephanie Edwards, Jesus Izquierdo, Nan Kelley, and Alaire BretzRieffel helped to locate Reports and background information, andDarlene Glenn and Loretta Nelms-Reyes worked to standardize citationforms. Finally, thanks are due Dean John Ryan and Roger WilliamsUniversity School of Law and Dean Michael Dessent, Dean StevenSmith, and California Western School of Law for providing institutionalsupport.

July 1996 John E. Noyes

I. Introductions

A. General Introduction: The United Nations, the United States, andthe Role of the American Bar Association

By Louis B. Sohn and H. Francis Shattuck, Jr.

George Santayana's warning that "those who cannot remember thepast are condemned to repeat it" seems particularly apt for those whowould withdraw from, eliminate, or financially starve the UnitedNations. We refer to the risk of ignoring two lessons of World War II:the inability of the League of Nations, weakened by the United States'absence and a lack of any military resources to prevent war, and the fail-ure of U.S. isolationism to keep the United States out of war once itbecame a global conflagration. Even if the United States had not beenforced to take part in the war, in a world dominated by a totalitarianalliance of victorious Germany and Japan, the people of the UnitedStates soon would probably have lost democracy and freedom. Todaythere is a new danger: that the United States may destroy the UnitedNations by causing its financial bankruptcy. We are on the brink ofrecreating international chaos with no institutions to perform the manyfunctions and services of the United Nations and its specialized agencieson which all of us depend in our daily life.

It deserves to be noted that large portions of effective work by theUN system (the UN and the specialized agencies) never receive thefront-page attention that armed conflicts, threatened conflicts, and UNpeace operations receive. This work includes, for example, the resolutionof a number of conflicts by quiet UN or UN-sponsored diplomacy andmediation (success achieved by such peaceful efforts does not generallyinterest the media), refugee relief and resettlement on a vast scale, eradi-cation of diseases, increasing world food production, protection of theglobal environment, arms control, nonproliferation of nuclear weapons,

The United Nations at 50

establishment and enforcement of international nuclear safety stan-dards, rescuing children from disease and hunger, providing financingand technical assistance to stimulate economic development and growthin poorer countries, and improving aircraft safety and air traffic control.Such work, much of it directed at the root causes of war, is just as impor-tant as that receiving press attention.

The United Nations is a principal force in advancing the rule of lawin the world. UN bodies have contributed to the settlement of manyclaims between nations, and the United Nations has established specialbodies for dealing with claims of individuals against governments.Decisions by the Security Council are binding on UN members in thearea of international peace and security, and the Council used thispower to establish tribunals to try some persons accused of committingwar crimes. The United Nations develops agreements binding on theparties to such agreements in many areas, including human rights andthe environment.

It is not surprising, however, that like all large public institutions,the United Nations and its specialized agencies have encountered manydifficulties and that their activities deserve constant scrutiny and ongo-ing improvements to assure their efficiency and effectiveness. Mindfulof the levels of accumulated experience and wisdom of those who creat-ed the United Nations and the specialized agencies, the Reports that fol-low approach the subject of improving their effectiveness with somecaution.

The American Bar Association played a key role in the creation ofthe United Nations, and over the last fifty years it has adopted numer-ous resolutions commenting on its work. Many of them are noted inAppendix D. This compilation of Reports and Recommendations relat-ing to the UN and its specialized agencies should thus be viewed in lightof other recent Reports and as an interim reference point for futureappraisals of the performance of these organizations.

Special working groups — the Working Group on Improving theEffectiveness of the United Nations in Advancing the Rule of Law in theWorld and the Working Group on UN Specialized Agencies and theInternational Atomic Energy Agency —developed the eleven Reportsand Recommendations marked with asterisks in the Table of Contents inorder to commemorate the 50th anniversary of the United Nations. Fiveseparate task forces were formed for the Reports and Recommendationson the International Court of Justice, an International Criminal Court,Peacekeeping, Peacemaking, and Peace Enforcement, Arms Control andNonproliferation, and International Human Rights. Six separate taskforces were formed for the Reports and Recommendations on selectedspecialized agencies. Selection of the members of these working groups

Introductions

was based on professional competence, experience, and familiarity withthe subject. Thus, the working groups and their work products are non-partisan — in keeping with the principle stressed and first articulated bySenator Vandenberg that politics must stop at the water's edge. Thesame must of course be said of the review and approval ofRecommendations by the Board of Governors and the House ofDelegates of the ABA. They are also non-partisan. All of the work donehas been pro bono.

As to the audience for these eleven commemorative Reports andRecommendations, we decided that the purpose of the Reports shouldbe to inform and educate as well as to suggest actions that our govern-ment may wish to take with respect to these international organizations.Copies of the two sets of Recommendations have been sent to appropri-ate government officers and Congressional Committees. However, theReports have received very narrow distribution. We concluded thatwider distribution is necessary — to the Administration, the Congress,and the international institutions themselves, as well as to the bar, theteaching profession, students, and the public at large.

We placed three important areas outside the scope of the commemora-tive Reports because of their need for intensive complex research and thefact that they each call for one or more separate studies. They are: (1) thewhole subject of restructuring of the UN and its many facets; (2) coordina-tion and avoidance of duplication of the work of the specialized agenciesand the work of the United Nations itself; (3) management and account-ability within each of the specialized agencies (for example the question ofthe need for an independent inspector general at each of the agencies).

Turning to the Reports and Recommendations themselves, theRecommendations published in this volume have all been formallyapproved by the House of Delegates of the American Bar Association.Thus, the resolutions embodied in the Recommendations are the policyof the ABA. As to the supporting Reports, these are studied by theHouse of Delegates but no vote is taken as to whether they areapproved. However, it should be noted that the Reports as well as theRecommendations must first be approved by the Council of the Sectionof International Law and Practice before they become CommitteeReports and Recommendations. This, of course, was done.

We call attention to the fact that many of the Reports contain addi-tional recommendations that deserve consideration even though there isno ABA policy on them.

With respect to the Recommendations developed by the WorkingGroups and approved by the ABA, in some cases there have already beensome significant developments. They are mentioned below by subjectmatter:


International Court of Justice. The U.S. has not yet taken any actiontowards resubmitting to the compulsory jurisdiction of the ICJ from which itwithdrew during the Nicaragua case, but it participates in several casesbefore the Court brought under treaties to which the United States is a party.

The Proposed International Criminal Court. There has been progress inthe development of a draft convention initially prepared by theInternational Law Commission. Arrangements for an international con-ference of plenipotentiaries are being considered by a special committeeappointed by the General Assembly. The success or failure of the UN tri-bunals created to consider violations of international humanitarian lawcommitted in the former Yugoslavia and Rwanda may well affect theprogress of the convention being proposed for establishment of theInternational Criminal Court.

Arms Control and Disarmament. In 1995, after protracted negotiations,the Treaty on the Non-proliferation of Nuclear Weapons was extendedindefinitely and unconditionally — a highly important development.

Peace Operations. There has been no progress on the creation of astandby military force by agreements negotiated pursuant to Article 43of the UN Charter. In fact, Presidential Directive 25 in 1994 stated thatthe U.S. Government will not earmark standby military forces.However, it is of interest that a bill, S1065, which has been introduced inthe Senate, would create a U.S. rapid reaction volunteer force of up to3,000 troops earmarked for international peacekeeping or peacemakingoperations. While such a force would not be created pursuant to Article43, the bill, if ultimately passed, would represent some progress towardscreation of standby Article 43 forces. It would be a significant steptowards creating military capability immediately available to thePresident for peace operations. However, passage of such a bill appearshighly unlikely at this time. The UN Convention on the Safety of UnitedNations and Associated Personnel has now been adopted by the UNGeneral Assembly and signed by several states, including the UnitedStates; the United States has not yet ratified it.

International Atomic Energy Agency. The Director General and theBoard of Governors of the IAEA are in the process of strengthening andimproving safeguards against horizontal proliferation, taking into accountproposals made by the 1995 NPT Review and Extension Conference. Toachieve another objective described in our Recommendation, separationof the safety and the promotional aspects of using nuclear energy, and toconsolidate all safety-related activities, the former Department of NuclearEnergy and Safety is being divided into the Department of NuclearEnergy and the Department of Nuclear Safety.

World Bantylnternational Monetary Fund. There have been no majordevelopments on these Recommendations.

Introductions

International Labor Organization. In light of the ABA Recommendationthat the United States continue to be an active supportive member of theILO, it is significant that the Senate bill in 1995 which called for U.S. with-drawal from the ILO was defeated.

World Health Organization. The U.S. Government is following theRecommendation that it lend strong support, except that proposed con-gressional appropriations are at substantially reduced levels.

Food and Agricultural Organization. There have been no major devel-opments on these Recommendations.

UNESCO. No action has been taken by the U.S. to rejoin thisorganization.

International Human Rights. The United Nations has started expand-ed human rights field monitoring in Rwanda, Bosnia, Haiti, andCambodia. While UN democracy promotion resources have not beenincreased, the UN increasingly has focused resources on democracy pro-motion (e.g., in Haiti).

In addition to the commemorative Recommendations and Reports,this compilation includes recent ABA Recommendations, and theiraccompanying Reports, on the International Tribunal to Adjudicate WarCrimes Committed in the Former Yugoslavia, the UN response to Iraq'sinvasion of Kuwait, the UN Convention on the Law of the Sea, and theprotection of the global environment. It also includes a Recommendationand Report, and a letter from ABA president George Bushnell, about theconstant delays in U.S. payments to the United Nations.

Brief updates on these additional Recommendations and Reportsfollow:

International Tribunal to Adjudicate War Crimes Committed in theFormer Yugoslavia. This tribunal, established by the UN Security Council,is now operating in The Hague, Netherlands. The tribunal has indictedindividuals allegedly responsible for war crimes committed in the for-mer Yugoslavia, and trial preparation is under way. The InternationalTribunal for Rwanda has also been established by the UN SecurityCouncil and is now operating.

Iraq's Invasion of Kuwait. UN Security Council-imposed sanctionsagainst Iraq, relating to trade, weapons, and compensation for damages,remain in effect. A UN Compensation Commission, which receives fundsfrom frozen overseas Iraqi assets and from a percentage of Iraqi oil sales,is processing claims for damages caused by Iraq's invasion of Kuwait.

UN Convention on the Law of the Sea. The UN Convention on the Lawof the Sea entered into force in November 1994, and over 100 states,including both developing and Western developed states, are now par-ties to it. The United States has signed the Convention, and PresidentClinton has submitted it to the Senate for its advice and consent to ratifi-

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cation; the Convention awaits action by the Senate. The judges of thenew International Tribunal for the Law of the Sea were elected onAugust 1-2,1996, and will hold their first meeting in October 1996.

Protection of the Global Environment. The number of recent treatiesand other UN activities relating to the environment is large, and theirsubject matter varied. Worth particular note is the 1992 UN Conferenceon the Environment and Development, held in Rio de Janiero, in whichthe United States actively participated. Of the treaties concluded at theRio Conference, the United States is a party to the UN FrameworkConvention on Climate Change, but is not a party to the Convention onBiological Diversity. The United States is party to many other environ-mental treaties, including the Vienna Convention on the Ozone Layerand its protocols; that Convention, originally drafted with the assistanceof the UN Environment Program, is designed to phase out the use ofozone-depleting chemicals.

We would be remiss should we fail to mention the continued disre-gard by our Congress of the undisputed treaty obligations of our gov-ernment under the UN Charter to pay our assessed share of UN costs.Specifically, Congress appears to have deliberately failed to authorizesufficient funds to enable our government to pay in full and on time.The financial crisis of the United Nations itself, caused largely by thiscontinued default by our own government, overshadows other crisesfaced by the United Nations. We find this withholding of funds by theU.S. from the UN particularly strange when in survey after survey theAmerican people strongly support the UN. The ABA has repeatedlycalled for prompt payment by the U.S. of more than one billion dollarsof long-standing arrears, and its current share of UN costs, in full and ontime. Continued failure by the United States is likely not only to lead tothe destruction of the United Nations. It undercuts — by flouting it —the rule of law internationally, not to mention its clearly damaging effecton our credibility and our capacity to lead.

This is not to say that serious consideration must not be given bothinside and outside the UN, by governmental and non-governmental groupsand individuals, to further efforts to improve the performance of the UNand its specialized agencies — to making them more effective, more effi-cient, more accountable, and better coordinated. It is simply to say that it iscounterproductive to consider non-payment of the U.S.-assessed share ofUN costs as some sort of continuing leverage to produce changes. It is morelikely to shut down the UN. Several senior UN officials have forecast thatthe UN will run out of cash between the middle and the end of 1996.

July 1996

Introductions

B. Special Introduction: Improving the Effectiveness of the UnitedNations in Advancing the Rule of Law in the World*

For the past fifty years the American Bar Association has played anactive role in supporting the United Nations in its role of promotinginternational peace and security. In 1943, before the Dumbarton Oaksand San Francisco conferences, Reginald Heber Smith, one of the greatleaders of the American Bar Association, arranged a series of confer-ences of leading lawyers and international law professors throughoutthe United States and, with the cooperation of the Canadian BarAssociation, in Canada. Judge Manley Hudson, assisted by Louis B.Sohn, conducted these conferences. They resulted in a volume publishedjointly by the ABA and CBA in 1944, entitled International Law of theFuture, which contained a variety of proposals. Some of the proposalsbecame provisions in the Charter of the United Nations.

Following this tradition, the Section of International Law andPractice developed these Reports as a contribution to the 50th anniver-sary of the United Nations in 1995. For this purpose it established aWorking Group on Improving the Effectiveness of the United Nationswhich, in turn, established five Task Forces on the basis of whose draftsthese Reports were prepared. They deal with five important issues ofinternational law which are crucial to the maintenance of internationalpeace, security, and justice, and to the fulfillment of Goal VIII of theAmerican Bar Association — to advance the rule of law in the world.

These issues are:

• settlement of international disputes, with emphasis on thepreparation by the United States of a draft declaration acceptingthe jurisdiction of the International Court of Justice;

• establishment of an International Criminal Court for the punish-ment of individuals responsible for gross violations of interna-tional law;

* This Introduction was prepared by the Working Group on Improving theEffectiveness of the United Nations in Advancing the Rule of Law in the World,and was previously published in 29 International Lawyer 293 (1995). The WorkingGroup was co-chaired by Louis B. Sohn and Jay M. Vogelson; Kathryn S. Mackserved as Director. The Recommendations and Reports prepared by theWorking Group's five Task Forces — the Task Force on the International Courtof Justice, the Task Force on an International Criminal Court, the Task Force onArms Control and Nonproliferation, the Task Force on Peacekeeping,Peacemaking, and Peace Enforcement, and the Task Force on InternationalHuman Rights — appear in Parts II, III, and IV of this book.


• international protection of human rights, with emphasis on thestrengthening of the Office of the United Nations HighCommissioner for the Promotion and Protection of All HumanRights;

• arms control and disarmament, with emphasis on the nonprolif-eration of nuclear weapons and the banning of all nuclear testexplosions;

• peacekeeping, with emphasis on the establishment of a standbymilitary force composed of units from national military forces tobe available on call by the Security Council under conditionscarefully defined in agreements to be concluded pursuant toArticle 43 of the United Nations Charter.

While certain of the issues discussed in these Reports have been pre-viously considered by the American Bar Association, it is important atthis crucial moment — when the United Nations is starting to plan forthe next few decades — to re-emphasize these important issues and topresent the United States Government with suggestions how they mightbe solved.

At the same time, it proved necessary to deal only incidentally withsome other issues on which the American Bar Association has alreadyadopted basic resolutions. In particular, the issue of United States contri-butions to the expenses of the United Nations has been the subject ofseveral resolutions of the House of Delegates, which, for instance, inAugust 1992 strongly urged that "the executive and legislative branchesof the United States government pay immediately and in full the UnitedStates' debt to the United Nations for its regular and peacekeepingexpenses." Some of the steps proposed in these Reports might enlargethe expenses of the United Nations. In the long run, however, the resultis likely to be that the considerable expenses of the United States for themaintenance of international peace, security, and justice and to advancethe rule of law, democracy, and human rights would be taken over bythe United Nations, and the external expenses of the United States forthese purposes would be drastically diminished, as they would beshared by other developed countries and some rapidly developingthird-world countries.

There have been proposals for changing the structure of the SecurityCouncil and the General Assembly. The Section is not presenting itsviews on this subject, but believes that a revision of the Charter is notnecessary for that purpose as these goals can be achieved by the UnitedNations through less drastic adjustment of various procedures of theOrganization to the constantly changing circumstances of the post-Cold-War world.

II. International Courts

The International Court of Justice is the principal judicial organ ofthe United Nations, and its Statute is an integral part of the UN Charter.The Court is available to decide cases involving international legal dis-putes between states, thereby contributing to the solution of such dis-putes. The Court also may give advisory opinions on legal questions atthe request of the UN Security Council, the General Assembly, or anoth-er UN organ or specialized agency that the General Assembly has autho-rized to request an opinion. During its first fifty years, the Court ren-dered well over 100 judgments and substantive orders in contentiouscases and approximately two dozen advisory opinions, providing legalguidance on such varied matters as the delimitation of territorial andmaritime boundaries, the protection of diplomats, rights to fisheries,rights of passage by one state over the territory of another, the responsi-bility of states towards foreign investors, the use of force, and the rightsof peoples in non-self-governing territories to exercise self-determina-tion by referendum. Selected ICJ cases are listed in Appendix C, alongwith summaries of their subject matter.

The jurisdiction of the International Court of Justice in contentiouscases derives from the mutual consent of the countries involved. In somecases, the states have each filed a declaration pursuant to Article 36(2) ofthe Court's Statute, recognizing the Court's jurisdiction as compulsory.The Court may also obtain jurisdiction when treaties so provide, accord-ing to Article 36(1). Thus, states may conclude an international agree-ment conferring jurisdiction on the Court with respect to specific dis-putes, such as those relating to the application or interpretation of atreaty or of some categories of treaties.

The United States has sought the assistance of the InternationalCourt of Justice in several cases. Dozens of U.S. treaties contain clausesauthorizing states parties to bring disputes relating to those treaties tothe Court. The United States also had filed an Article 36(2) declarationwith the Court in 1946, which was in effect until the United States with-drew it in 1986. U.S. reservations to its declaration had two effects. First,they limited the types of cases in which another country that had a dis-

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pute with the United States could invoke the Court's jurisdiction.Second, they precluded the United States from bringing to the Courtmany disputes with other countries that had filed Article 36(2) declara-tions, because jurisdiction exists under Article 36(2) only over disputesthat fall within the area where states' declarations coincide. The firstReport below recommends that the United States file a new Article 36(2)declaration, and examines the appropriate scope of reservations to a U.S.declaration. Another recent ABA Recommendation, developed by anABA Blue Ribbon Commission on the International Court of Justice,urges the United States to accept new treaties authorizing the Court todecide certain clearly specified categories of disputes. ThatRecommendation and its accompanying Report, although not repro-duced in this book, are printed in 24 International Lawyer 803 (1990).

The United Nations is currently considering proposals to create anew international court to hear cases involving international crimes.Since the decisions of the Nuremberg War Crimes Tribunal at the end ofWorld War II, it has been clear that a body of international criminal lawapplies directly to certain activities of individuals. The secondRecommendation and Report in this section concerns the jurisdiction ofthis proposed international criminal court and addresses, inter alia, thetypes of international crimes over which the court should be able toexercise jurisdiction.

The UN Security Council has recently established two internationaltribunals with the specific mandate to try cases involving allegations ofgenocide and other violations of international humanitarian law com-mitted in the former Yugoslavia and in Rwanda. The third Report in thissection analyzes U.S. implementing legislation to enable the President tosupport the Yugoslav Tribunal, and carefully considers procedures thatthe Tribunal should adopt to protect effectively the rights of the accused,of victims, and of witnesses. More detailed analyses of the YugoslavTribunal and of proposals for an international criminal court may befound in three studies published by the ABA Section of InternationalLaw and Practice: Report on the International Tribunal to Adjudicate WarCrimes Committed in the Former Yugoslavia (Monroe Leigh et al. eds.,1993), Report on the Proposed Rules of Procedure and Evidence of theInternational Tribunal to Adjudicate War Crimes in the Former Yugoslavia(Monroe Leigh et al. eds., 1995), and Report of the Task Force on anInternational Criminal Court (Alaire Bretz Rieffel ed., 1995).

International Courts 11

A. Recommendation and Report on U.S. Acceptance of theJurisdiction of the International Court of Justice*

Recommendation

BE IT RESOLVED, that the American Bar Association recommendsthat the United States Government present a declaration recognizing ascompulsory the jurisdiction of the International Court of Justice thatshould read as follows:

I, , President of the United States of America,declare on behalf of the United States of America, under Article 36,paragraph two, of the Statute of the International Court of Justice,and in accordance with the Resolution of of the Senate of theUnited States of America (two-thirds of the senators present con-curring therein), that the United States of America recognizes ascompulsory ipso facto and without special agreement,, in relation toany other State accepting the same obligation, that is to say on thecondition of reciprocity, the jurisdiction of the International Courtof Justice in all legal disputes hereafter arising concerning

(a) the interpretation of a treaty;(b) any question of international law;(c) the existence of any fact which, if established, would

constitute a breach of an international obligation;(d) the nature or extent of the reparation to be made for the

breach of an international obligation;Provided, that this Declaration shall not apply to

(a) disputes the solution of which the parties shall entrustto other tribunals by virtue of agreements already inexistence or which may be concluded in the future; or

(b) disputes in respect of which any other party to the dis-pute has accepted the compulsory jurisdiction of theInternational Court of Justice only in relation to or forthe purpose of the dispute; or where the acceptance of

* This Recommendation was adopted by the American Bar Association House ofDelegates in August 1994. The Recommendation and its accompanying Reportare one of a series of five developed by the Working Group on Improving theEffectiveness of the United Nations, which was chaired by Louis B. Sohn and JayM. Vogelson and directed by Kathryn S. Mack. Members of the WorkingGroup's Task Force on the International Court of Justice, who prepared thisRecommendation and Report, were Louis B. Sohn (Chair), Daniel Partan(Rapporteur), Richard B. Bilder, Lori F. Damrosch, Edison W. Dick, David M.Lindley, and Ronald Roberts. Previously published in 29 International Lawyer 295(1995).

!Ft^Wr.f&p£&$&£ir£i

12 The United Nations at 50

(c)

the Court's compulsory jurisdiction on behalf of anyother party to the dispute was deposited or ratified lessthan twelve months prior to the filing of the applicationbringing the dispute before the Court; ordisputes relating to action taken pursuant to decisionsof the Security Council of the United Nations or of aregional arrangement or agency fulfilling the require-ments of Article 52 of the Charter of the United Nations.

Provided further, that this Declaration may be modified or terminat-ed with effect as from the moment of expiration of six months afternotice has been given to the Secretary-General of the UnitedNations, except that in relation to any State with a shorter period ofnotification of modification or termination, the notification by theUnited States of America shall take effect at the end of such shorterperiod, and in relation to any State which may modify or terminateits declaration as from the moment of notification, the notificationby the United States of America shall take effect as from themoment of notification.

Report

The United States is a party to the Statute of the International Courtof Justice ("World Court" or ICJp In this capacity the United States maysue and be sued in that Court, but only where consent to suit is foundedon mutual agreement2 or on acceptance of the Court's compulsory juris-diction by declarations filed pursuant to Article 36(2) of the Statute ofthe Court. The United States filed such a declaration in 1946, but with-drew it in 1986 owing to the Court's willingness to accept jurisdiction ofNicaragua's complaint that the United States had violated internationallaw through its actions in support of the Contras in Nicaragua. TheWorking Group examined the question whether the United Statesshould restore its acceptance of the Court's compulsory jurisdiction.

In reaching its decision to recommend that the United States file anew declaration accepting the Court's compulsory jurisdiction pursuantto Article 36(2), the Working Group considered four major issues:

Whether acceptance of the Court's compulsory jurisdiction is inthe national interest;Whether a new United States declaration should include the"Cormally reservation," that is, whether to include a reservationthat excludes from the Court's jurisdiction matters that are"essentially within [U.S.] domestic jurisdiction ... as determinedby the United States;"


3. Whether the declaration should exclude issues of national secu-rity from the Court's jurisdiction, that is, whether the declara-tion should extend to uses of force, actions in self-defense, ormatters connected with ongoing armed conflicts; and

4. What other conditions or reservations should be attached to thenew U.S. declaration.

Apart from the proviso that introduces reciprocity into the termina-tion clause, the Working Group's draft Declaration contains only threereservations: proviso (a) concerning alternative methods of dispute reso-lution; proviso (b) concerning declarations made in relation to particulardisputes; and proviso (c) concerning collective measures. The WorkingGroup agreed that there should be no domestic jurisdiction reservationand that there should be no national security, use of force, or self-defense reservation.

The Working Group's support for renewing U.S. acceptance, of theCourt's compulsory jurisdiction is rooted in support for the rule of law.As it is within nations, adjudication is a necessary feature of the rule oflaw among nations. Although no nation can be certain of winning everyInternational Court case in which it is a party, dispute settlement by lawand not by force is in the long-range interest of all. Moreover, as a worldleader having many and varied interests throughout the world, disputesettlement by law is most especially in the interest of the United States.Acceptance of the Court's compulsory jurisdiction serves that interest.

The domestic jurisdiction reservation contained in proviso (b) of theU.S. 1946 Declarations was both unnecessary and destroyed the effec-tiveness of that declaration. The proviso was not needed because underthe UN Charter the Court has no authority to "intervene in matterswhich are essentially within the domestic jurisdiction of any State."* Theproviso rendered the U.S. declaration ineffective because, owing to theCourt's requirement of reciprocity in the acceptance of compulsory juris-diction, any state that the United States might seek to bring before theCourt could avoid the Court's jurisdiction by invoking the U.S. domesticjurisdiction reservation^ What is more, the self-judging feature of theU.S. domestic jurisdiction reservation ("as determined by the UnitedStates") conflicts with Article 36(6) of the ICJ Statute. Under that provi-sion, the Court has jurisdiction to determine its own jurisdiction: Whenthere is a dispute as to whether the Court has jurisdiction, as is the casewhen a party claims that a matter falls within its domestic jurisdiction,the dispute is to be settled by the decision of the Court, not by the self-determination of one of the parties. For all these reasons, the WorkingGroup considered it inappropriate to include a domestic jurisdictionreservation in the new declaration.

A national security, use of force, or self-defense reservation presents

two major issues. First, there is the question of principle. Should mattersrelating to national security be excluded from the Court's compulsoryjurisdiction? Second, there is a technical or practical problem in conduct-ing litigation subject to such a proviso. Is it technically feasible toachieve the presumed objective of the proviso's proponents — that is, topreclude judicial scrutiny of the merits of sensitive issues — withoutengaging in prolonged litigation over related issues at the jurisdictionalphase?

With regard to the issue of principle, the reasons that led theWorking Group to support renewal of U.S. acceptance of the Court'scompulsory jurisdiction cut against the exclusion of national security,self-defense, and use of force issues. Extraterritorial action taken in thename of national security or self-defense is governed by internationallaw; such action does not fall within national discretion or domesticjurisdiction. The United States would be ill-served by an internationallaw system that did not seek to subject the use of force to the disciplineof law. Here, as elsewhere, effectiveness in the rule of law requiresaccess to adjudication. In the long run, the interests of all states are fur-thered by bringing the use of force within the domain of law.

As to practical problems of litigation, the objective of a nationalsecurity, use of force, or self-defense reservation would be to secure thedismissal of the case at the outset, that is, at a preliminary hearing onjurisdiction. In many cases this would not be possible, because the Courtwould have to examine certain merit issues at the jurisdictional phase inorder to satisfy itself that the conditions for invoking the reservationwere met. For example, a reservation that excludes Court review of actsof self-defense would require a showing that the challenged act wasindeed an act of self-defense. This would require both a presentation ofthe facts and legal argument to show that the action is properly charac-terized as self-defense. Unless the reservation is self-judging ("self-defense as determined by the United States"), the Court would need tohear the merits of the claim and would dismiss the case only if it con-cluded that the U.S. action was indeed justified as an act of self-defense.A "national security" reservation could probably not satisfy its own pro-ponents unless the determination concerning U.S. security interests weremade self-judging; but for the reasons discussed above concerning theConnally Amendment, the Working Group concluded that self-judgingreservations of any kind should be avoided. While some other proposalsmight avoid the self-judging problem — for example, by leaving it to theCourt to determine from the pleadings or from ascertainable factswhether the dispute concerned "force" or "hostilities" — we concludedthat the effort to formulate an "objective" test that could be readilyapplied at the threshold of the case was elusive. More importantly, such


an exercise seemed unwarranted in view of our unanimous agreementthat, because of the reciprocal character of reservations, it is in the inter-est of the United States to draw all reservations to the Court's jurisdic-tion as narrowly as possible.

With regard to other possible reservations, the Working Groupdecided to recommend three reservations.

First, in proviso (a) the Working Group decided to retain the 1946Declaration's alternative dispute settlement proviso. Under this provisothe Declaration does not apply to "disputes the solution of which theparties shall entrust to other tribunals by virtue of agreements already inexistence or which may be concluded in the future."

Second, in proviso (b) the Working Group decided to exclude dis-putes that are brought to the Court pursuant to a declaration that wasmade only for the purpose of bringing the dispute to the Court. Such anexclusion in effect requires other states to accept the Court's compulsoryjurisdiction on a broader basis before they may utilize the U.S.Declaration to bring the United States before the Court.

Third, in proviso (c) the Working Group decided to exclude disputesrelating to collective action. In the judgment of the Working Group, legalchallenges to collective actions should require a broader jurisdictionalbasis than the acceptance by the United States of the compulsory juris-diction of the Court. Judicial review of collective actions would advancethe rule of law, but the Court's review would be effective only if boththe responsible institution and all affected states participate in theprocess. Such a process would require both rethinking of the basis forcollective action and amendment of the Statute of the Court. &

Finally, the Working Group decided to retain the six months' noticeprovision of the 1946 Declaration, but to insert into that provision arequirement of reciprocity.

Endnotes

1 All Members of the United Nations are parties to the Statute of the Court.U.N. CHARTER art. 93, para. 1.2 I.C.J. STATUTE art. 36, para. 1.3 Proviso (b) excluded from the Court's compulsory jurisdiction "disputes withregard to matters which are essentially within the domestic jurisdiction of theUnited States of America as determined by the United States of America."4 U.N. CHARTER art. 2, para. 7.5 The United States was unable to sue Bulgaria on a claim of wrongful attackagainst an airliner which was flying over Bulgaria because of a navigationalerror, because Bulgaria was able to rely on the U.S. domestic jurisdiction reser-vation. Aerial Incident of 27 July 1955 (U.S. v. Bulgaria), 19601.C.J. 146.6 Article 34(1) of the Statute of the Court provides: "Only states may be partiesin cases before the Court."


B. Recommendation and Report on an International CriminalCourt*

Recommendation

BE IT RESOLVED, that the American Bar Association recommendsthat the United States Government take an active role in the establish-ment of an international criminal court that would be based on the fol-lowing principles:

A. The consensual jurisdiction of the international criminal courtshould be based on the consent of the state having custody overa person accused of a crime specified in an international conven-tion which

(1) adequately defines the crime;(2) has been widely accepted by states representing all of the

world's major legal systems; and(3) contains the extradite or prosecute obligation.

B. The mandatory jurisdiction of the international criminal courtshould be based on a decision by the Security Council issuedpursuant to its powers under Chapter VII of the United NationsCharter:

(1) determining that any person or category of persons whohave participated in an activity that the Security Councilhad determined endangers international peace and securi-ty and have been accused of having committed a crimewhich is recognized by the international community as agross violation of a rule of customary international lawwidely accepted by states representing all the world'smajor systems as giving rise to personal responsibility,should be subject to possible prosecution and trial inaccordance with the statute of the court; or

* This Recommendation was adopted by the American Bar Association House ofDelegates in August 1994. The Recommendation and its accompanying Reportare one of a series of five developed by the Working Group on Improving theEffectiveness of the United Nations, which was chaired by Louis B. Sohn and jayM. Vogelson and directed by Kathryn S. Mack. Members of the WorkingGroup's Task Force on an International Criminal Court, who prepared thisRecommendation and Report, were Louis B. Sohn (Chair), Stuart H. Deming(Rapporteur), Evan Bloom (Advisor), Curtis E. Hall, William M. Hannay, John F.Murphy, and Michael P. Scharf. Previously published in 29 International Lawyer300 (1995).


(2) transferring to the court for possible prosecution and trialany person who has participated, or is participating, in anactivity which the Security Council determined endangersinternational peace and security and who is accused ofhaving committed a crime under general international lawor an international treaty in force, when a state where theaccused person is found refuses to try or extradite thatperson.

Report

It is vitally important for the United States to take an active role inthe establishment of an international criminal court able to contribute tothe maintenance of the rule of law, without which there can be no justpeace. If the United States does not take a leading role in the formationof the new institution, it may evolve in a direction that departs widelyfrom concepts that are fundamental to a system of justice.

For these reasons, the [American Bar Association] Section [ofInternational Law and Practice (Section)] strongly believes that any pro-posal for an international criminal court should be comprehensive inaddressing issues fundamental to its effective operation. The UnitedStates should not support a vague proposal which would leave open forfuture action the development of jurisdictional and procedural issues. Inparticular, sufficiently detailed rules of evidence and procedure are fun-damental to the integrity of any system of criminal justice, and are nec-essary to ensure the rights of the accused and the victim and to preventthe politicization of the tribunal. The salient aspects of the structure of atribunal and its procedures may be subject to comment by the Section ina future report.

I. Consensual Jurisdiction

The Section is of the view that the parties to the statute of an interna-tional criminal court should have two means of invoking its jurisdiction:consensual and mandatory. In the first instance, offenders would be vol-untarily surrendered by states. A party to the statute of an internationalcriminal court would be entitled to refer the case of an alleged criminalfound in its territory to the tribunal instead of trying or extraditing thatperson, either on its own initiative, or on request of the state where thecrime has been committed or of the state of the accused person's nation-ality. An international tribunal would, in effect, serve as a third alterna-tive to states currently having only the choice to prosecute or extraditeinternational criminals found within their country.


The Section does not support the inclusion of a provision that wouldpreclude reference of a case to an international criminal court whenthere has been a request by another state for extradition of an accused.The only alternative to extradition would be for the requested country tosubmit the accused to its prosecutorial authorities. This would under-mine a fundamental purpose of having an international criminal court,which is to maximize possible prosecutorial options in respect to inter-national crimes.

In this regard, the Section would support the position taken in thecommentary to Article 63 of the draft statute [of the International LawCommission of the United Nations (ILC)] as to whether a state partythat decided not to surrender an accused to the court should also beallowed as an alternative to prosecution to extradite him to another statefor prosecution. Allowing a state party three options — prosecution,extradition to another state, or surrender to the court — would seem theapproach most compatible with the view that the court should comple-ment, rather than compete with, prosecution before national tribunals.The Section concurs with the position taken by the U.S. Commission [onImproving the Effectiveness of the United Nations] that the establish-ment of an international criminal court "should be viewed not as a sub-stitute for but a complement to national criminal systems and othermodalities of bilateral and multilateral cooperation in penal matters."

Under its consensual jurisdiction, reference to an international crimi-nal court should be made on a case-by-case basis. As to whose consentshould be required for the court to have jurisdiction, consent should berequired only of the state with custody over an accused, provided thatthe state of custody would have a basis under the pertinent internationalconvention for exercising jurisdiction. It is recognized that this positionis inconsistent with the first report of the [American Bar Association]Task Force [on an International Criminal Court (Task Force)] and theILC's draft statute, where the consent of the state or states of which theaccused is a national would also have been required. However, it is con-sistent with the positions taken by the Task Force in its final report andby the ILC's working group.!

What the Section now recommends is not different from the statusquo today where the consent of the state having custody controls. Underexisting conventions, normally the state of custody is obliged to estab-lish its jurisdiction over the offense so it can submit an accused to prose-cution if it does not extradite him to either the territorial state or thestate of nationality. Since neither the state in which the crime occurred,nor the state of nationality, nor the state of custody requires the consentof any other state to submit an accused to prosecution before its nationalcourts, such consent should not be required for such states to submit anaccused to an international criminal court.


II. Subject-Matter Jurisdiction

While the Section supports an international criminal court withbroad subject-matter jurisdiction, it recognizes that the breadth of sub-ject-matter jurisdiction may ultimately be dictated by political develop-ments. Depending upon the circumstances, a more modest and incre-mental approach may have a greater likelihood of success. Accordingly,the subject matter of consensual jurisdiction would initially be limited tointernational conventions that are widely accepted by states represent-ing all of the world's major legal systems and that are subject to anextradite or prosecute obligation. A list of such conventions is containedin Article 22 of the ILC's draft statute.

In terms of which crimes a state is prepared to recognize as withinthe court's jurisdiction, an "opting in" system along the lines set forth inalternative A of Article 23 of the ILC's draft statute is preferred. A stateparty to the court's statute could "by declaration lodged with theRegistrar, at any time accept the jurisdiction over one or more of thecrimes referred to in article 22." This approach would be the most flexi-ble and the one most commensurate with the concept that the courtwould serve as a supplemental forum to national courts for the prosecu-tion of international crimes.

The Section recommends against inclusion of the crime of "aggres-sion," which is not defined in any international convention. The onlyofficially adopted definition of aggression is that contained in GeneralAssembly Resolution 3314, adopted in 1974, which though consideredby many as a generally accepted interpretation of the UN Charter, isconsidered by others as intended only as a political guide and not a suit-able definition for purposes of prosecution. In a similar regard,apartheid is another issue which may have more political than legal con-tent and raise the risk of politicization of the court. Finally, the Sectionrecommends against reference to the Code of Crimes Against the Peaceand Security of Mankind in Article 21 of the ILC's draft statute as a pos-sible addition to the list. Some items in that code have engenderedstrongly negative reactions.

The JSection is of the view that drug-related crimes should be consid-ered for inclusion in the court's subject-matter jurisdiction. However,drug-related crimes, including the crimes referred to in the 1988 UnitedNations Convention against Illicit Traffic in Narcotics and PsychotropicSubstances, do not at present qualify for inclusion in the ILC's draftstatute because of a lack of adequate definition. If such crimes are to beincluded, they should be more precisely defined in the court's statute.

In terms of what crimes should be added to the subject-matter juris-diction of the court, the Section would encourage the addition of tortureto Article 22 of the draft statute of the ILC. Consideration should also be


a.

given to crimes covered by the Convention on the Physical Protection ofNuclear Material and to crimes against UN peacekeepers and humani-tarian workers under proposed new treaty law.

III. Mandatory Jurisdiction

Unlike the U.S. Commission, the Section considers that provisionshould be made for a second means of invoking the jurisdiction of theinternational criminal court. It would be mandatory in nature andwould require a mandate from the Security Council issued pursuant toits powers under Chapter VII of the United Nations Charter:

determining that any person or category of persons who haveparticipated in an activity that the Security Council had deter-mined endangers international peace and security and havebeen accused of having committed a crime which is recognizedby the international community as a gross violation of a rule ofcustomary international law widely accepted by states repre-senting all the world's major systems as giving rise to personalresponsibility should be subject to possible prosecution and trialin accordance with the statute of the court; ortransferring to the court for possible prosecution and trial anyperson who is participating in an activity which the SecurityCouncil had determined endangers international peace andsecurity and who is accused of having committed a crime undergeneral international law or an international treaty in force,when a state where the accused person is found refuses to try orextradite that person.

Endnotes

1 For further discussion, see Final Report of the American Bar Association TaskForce on an International Criminal Court 21-26 \printed in REPORT OF THE TASK FORCEON AN INTERNATIONAL CRIMINAL COURT (Alaire Bretz Rieffel ed., 1995)].

b.


C. Recommendation and Report on an International CriminalTribunal for the Former Yugoslavia*

Recommendation

BE IT RESOLVED, that the American Bar Association supports theestablishment by the Security Council of the United Nations underChapter VII of the UN Charter of the International Tribunal for theProsecution of Persons Responsible for Serious Violations ofInternational Humanitarian Law Committed in the Territory of theFormer Yugoslavia since 1991 ("the Tribunal").

BE IT FURTHER RESOLVED, that the American Bar Associationrecommends that the United States Congress promptly adopt appropri-ate implementing legislation to enable the President to give full supportto the Tribunal, and including provisions which would:

(a) limit the discretion of courts under current U.S. law to denyassistance to the Tribunal in the service of documents and thecollection of evidence;

(b) recognize the obligation of the United States under Chapter VTIof the UN Charter to arrest accused persons and to surrenderthem to the Tribunal.

BE IT FURTHER RESOLVED, that the American Bar Associationrecommends that the United States urge the United Nations to makeevery effort, through the rules of evidence and procedure to be adoptedby the Tribunal and, if appropriate, through supplementary decisions ofthe Security Council, to ensure due process for the accused and ade-quate protection for victims and witnesses by such measures as the fol-lowing:

(a) implementation of the principle of nullum crimen sine lege (nocrime without law) by specifying (1) that offenses in violation ofthe laws or customs of war include those acts especially forbid-den by the Hague Regulations of 1907; (2) that the phrase "otherinhumane acts" in the description of crimes against humanityincludes acts prohibited in common Article 3 of the GenevaConventions of 1949; and (3) that the description of rape

* This Recommendation was adopted by the American Bar Association House ofDelegates in August 1993. The Recommendation and Report were developed bya special Task Force on War Crimes in the Former Yugoslvaia established by theABA Section of International Law and Practice. Former State Department LegalAdvisor Monroe Leigh chaired the Task Force. Other members of the Task Forceare listed in Appendix E. Previously published in 28 International Lawyer 545(1994).

SiKiCfep

(b)

(c)

(d)

(f)

(g)

includes enforced prostitution, enforced pregnancy, and otherwidespread sexual offenses;prevention of conflicts of interest within the Tribunal and theprovision of institutional balance through the establishment ofan Office of Defense Counsel and a prohibition against serviceby an indicting judge on the panel that hears the case at trial;the participation by the UN Security Council in the approval ofthe rules of evidence and procedure of the Tribunal prior totheir adoption by the judges;the assurance of the right of confrontation and the prohibition ofthe use of ex parte affidavits as evidence at trial against theaccused, except in highly specialized circumstances;the assurance that the Prosecutor's standard of proof at trial is atleast the functional equivalent of "beyond a reasonable doubt";the reconciliation of the defendant's right to cross-examinationwith the protection of victims and witnesses through specialarrangements;the recognition of the defense of superior orders in cases wherea defendant acting under military authority in armed conflictdid not know the orders to be unlawful and a person of ordi-nary sense and understanding would not have known theorders to be unlawful, but treating superior orders as groundsfor mitigation of punishment only in cases of duress;the protection against double jeopardy by permitting only theperson convicted, and not the Prosecutor, to request an appealafter final judgment or a review proceeding;the guarantee of the rights of the accused consistent with theInternational Covenant on Civil and Political Rights;the assurance of uniform standards concerning the treatment ofprisoners by States in which they are imprisoned and for thereview of requests for pardon or commutation once the Tribunalis no longer in existence.

Report

Introduction and History ...

On February 22,1993, after repeated demands that the parties to theconflict in the territory of the former Yugoslavia cease and desist fromall breaches of international humanitarian law, the Security Council ofthe United Nations determined that an international tribunal should becreated to prosecute responsible persons in the former Yugoslavia ("theTribunal"). The Security Council asked the Secretary-General to submita proposal to implement this decision. 1 The Secretary-General issued a

(h)

(i)

0)


detailed report on May 3, 1993. The Security Council approved theSecretary-General's report and, acting under Chapter VII of the UNCharter, adopted the Statute of the Tribunal annexed to that Report("Statute" or "Statute of the Tribunal") on May 25, 1993.2 In doing so,the Security Council established an international tribunal for the solepurpose of prosecuting persons responsible for serious violations ofinternational humanitarian law committed in the territory of the formerYugoslavia between January 1,1991, and the restoration of peace.s

Pursuant to the mandate of the November 1992 resolution of theABA Board of Governors, the Section of International Law and Practiceestablished a Task Force on War Crimes in the Former Yugoslavia to,among other things, analyze the Statute of the Tribunal and report on itsimplementation. The Task Force has issued a detailed report which sup-ports the establishment of a Tribunal and which urges that the institu-tional arrangements and procedures of the Tribunal be fair and impar-tial, especially since this Tribunal could serve as a prototype for futurecriminal tribunals.

The accompanying resolution contains the main recommendationsof the Task Force Report, and the discussion below summarizes itsanalysis and conclusions....

II. Comment on the Statute of the Tribunal

The ABA Section of International Law and Practice and its TaskForce on War Crimes in the Former Yugoslavia support the Secretary-General's Report and the Statute of the Tribunal but recommend certainclarifications and additions. These recommendations could be put intoeffect through the rules of procedure and evidence to be adopted by theTribunal, through implementing directives and interpretative state-ments, or, if necessary, through supplementary decisions of the SecurityCouncil.

A. Legal Basis for Establishing the Tribunal

The Security Council has an adequate legal basis under Chapter VIIof the UN Charter, in conjunction with previous resolutions concerningthe situation in former Yugoslavia, to establish an international tribunalto prosecute war crimes committed in this territory. Chapter VII givesthe Security Council primary responsibility for maintaining and restor-ing international peace and security and obliges all Member States tocarry out the decisions of the Security Council. An ad hoc tribunal toprosecute war crimes in the former Yugoslavia could be viewed as anappropriate enforcement measure to maintain and restore internationalpeace and security. It was made clear by the Council that this tribunal


would not be a permanent tribunal to adjudicate war crimes or crimesagainst humanity.

B. The Definition of Humanitarian Law and Catalogue of Crimes

Article 1 of the Statute declares the Tribunal's subject-matter jurisdic-tion to be the prosecution of "serious violations of international humani-tarian law ...." Articles 2 through 5 further define that jurisdiction toinclude prosecution of grave breaches of the Geneva Conventions of 1949,violations of the laws or customs of war, genocide, and crimes againsthumanity. The list of specific offenses violative of the laws or customs ofwar in Article 3 should be interpreted to include those acts especially for-bidden by the Hague Regulations of 1907. Such enumeration would paral-lel the Statute's enumeration of grave breaches of the Geneva Conventionsset forth in Article 2 and would reinforce the Statute's adherence to theprinciple of nullum crimen sine lege (no crime without law).

For the same reason, the phrase "other inhumane acts" should beinterpreted to include all the prohibitions in common article 3 of theGeneva Conventions of 1949. Similarly, as pointed out in the Secretary-General's report, the reference to subparagraph (g) (rape) of Article 5should be interpreted to include enforced prostitution, enforced preg-nancy, and other widespread sexual offenses.

C. Structure of the Tribunal

The Statute provides that the Tribunal will have three organs: theChambers, which consist of two three-judge Trial Chambers and a five-judge Appellate Chamber, the Office of the Prosecutor, and the Registry,which serves as a combined secretariat for the other two organs. In addi-tion, an Office of Defense Counsel should be established to provideinstitutional balance and help guarantee procedural fairness to theaccused. The institutional structure and procedures of the Office ofDefense Counsel should include safeguards against any conflicts ofinterest among defense counsel. Because there will be no jury at trial andat least one judge must, under the Statute, rule on the sufficiency of anyindictment, no indicting judge should serve on the panel that hears thecase at trial.

D. Rules of Evidence and Procedure

Under the Statute, the judges have authority to adopt rules of evi-dence and procedure. Express guidelines in the Statute, however, cir-cumscribe this power to some degree. It seems desirable for the SecurityCouncil to retain a role in the consideration of the rules of evidence andprocedure prior to their adoption by the judges.


In principle, the Tribunal should not use ex parte affidavits as evi-dence at trial against the accused since such use may be inconsistentwith the right to cross-examination which is guaranteed by Article21(4)(e). If there is to be any derogation from this principle, ex parte affi-davits should be permitted at trial only in extraordinary circumstances.However, such general prohibition against the use of ex parte affidavitswould not apply to the investigatory stage.

Steps should be taken to ensure that the Prosecutor's standard of proofat trial is at least the functional equivalent of "beyond a reasonable doubt."

E. Reconciliation of Cross-Examination with Protection of Victimsand Witnesses

A tension exists between the defendant's right to cross-examinationunder Article 21(4)(e) of the Statute and the "protection" granted to thevictim and witness appearing before the Tribunal under Article 22. It isgenerally recognized that effective prosecution will depend upon thewillingness of witnesses and victims of rape and torture to testify beforethe Tribunal. Special arrangements, consistent with the defendant's rightto cross-examination, should be developed by the Tribunal to addressthe concerns and fears of victims and witnesses.

Such arrangements might include hearing evidence in camera inextraordinary circumstances relating to the most sensitive crimes orthrough the use of one-way closed circuit television; conducting fact-finding hearings and depositions close to Bosnia-Herzegovina; prohibit-ing public disclosure of the victims' identities; developing evidentiaryrules limiting the introduction into evidence of the victim's past sexualhistory; providing special training for judges and using expert witnessesto assist judges in their understanding of the testimony of a victim suf-fering from the effects of severe trauma; and making available supportservices for victims and witnesses.

As the Statute only provides for the right to cross-examinationunder Article 21(4)(e) rather than a broader right of confrontation,Article 21(4)(e) should be clarified to assure the right of confrontation,unless highly specialized circumstances require different treatment.

F. The Defense of Superior Orders

Article 7(4) provides that acting pursuant to superior orders is not adefense to criminal responsibility but may be considered in mitigation if"justice so requires." Article 7(4) should be clarified to include a limitedexception recognizing the defense of superior orders in cases where adefendant acting under military authority in armed conflict did notknow the orders to be unlawful and a person of ordinary sense and


understanding would not have known the orders to be unlawful. On theother hand, Article 7(4)'s treatment of superior orders as grounds formitigation of punishment should be restricted to apply only in cases ofduress. These changes would make the implementation of the Statutemore nearly consistent with standards adopted in the Nuremberg pro-ceedings subsequent to the trial of major war criminals.

G. Double Jeopardy: Prosecutorial Appeals

The Statute provides that either the person convicted by the TrialChambers or the Prosecutor can seek an appeal from judgments byasserting commission of errors of fact that have "occasioned a miscar-riage of justice," or errors of law "invalidating the decision" by the TrialChamber. Similarly, the Statute allows the convicted person or theProsecutor to apply for a review of judgment if they discover a new fact,not known at the time of trial, "which could have been a decisive factorin reaching the decision." An appeal or review proceeding brought bythe Prosecutor, which results in a reversal of the judgment of the TrialChamber, could necessitate a new trial for the same offense, thus violat-ing the principle of double jeopardy. In practice, the language of theStatute can be applied to permit only the person convicted by the TrialChambers to request an appeal after final judgment or a review proceed-ing. However, either the defendant or the Prosecutor should be permit-ted to seek interlocutory appeals of issues of law,

H. Double Jeopardy: Multiple Trials Before National Courts and theTribunal

While the Statute incorporates some protection against double jeop-ardy arising out of separate prosecution before national courts and theTribunal, it does not address the possibility of double jeopardy beforethe Tribunal itself. The Statute's exceptions to the general rule againstretrial before the Tribunal after trial before a national court for an "ordi-nary crime" or in sham proceedings require great care in application inorder to ensure that the accused is not tried twice for the same crime.

I. Treatment of the Accused Pending Trial

The Statute does not contain a provision for pre-trial release or forbringing a habeas corpus-type motion. Both of these rights are containedin the International Covenant on Civil and Political Rights.Guaranteeing the rights of the accused is particularly important here,where the arresting authority may not be subject to strict politicalaccountability. The Tribunal should provide for each of these rights inits rules of procedure.


J. Equal Treatment Concerning Enforcement of Sentences

The Statute provides for the enforcement of sentences ordered bythe Tribunal by and in accordance with the laws of various States, sub-ject to the supervision of the Tribunal. The Statute further provides thatthe State in which a person is imprisoned shall notify the Tribunal if aprisoner becomes eligible for pardon or commutation of his or her sen-tence. Under Article 28, the President of the Tribunal, in consultationwith the judges, would then "decide the matter on the basis of the inter-est of justice and the general principles of law."

The Statute raises the possibility of unequal treatment since the lawsof the States in which prisoners may be serving their sentences couldvary dramatically. Since States are required to notify the Tribunal onlywhen a prisoner becomes eligible for pardon or commutation of his orher sentence under the laws of the State, a prisoner in one State could beeligible for release while a person serving a prison sentence for the samecrime in another State could remain imprisoned. Moreover, the Tribunalmay no longer be in existence at the time the prisoner becomes eligiblefor release, and the Statute does not provide for an alternative forum toreview requests for pardon or commutation. It will be necessary for theTribunal to adopt a uniform standard concerning the treatment of pris-oners. An alternative forum for review of requests for pardon or com-mutation should be provided once the Tribunal is no longer in existence.

K. Judicial Assistance

Existing statutes on international judicial assistance provide an ade-quate basis for the obligations imposed by the Statute on the UnitedStates with regard to assisting the Tribunal in the service of documentsand the collection of evidence. However, the wide discretion of courtsunder current U.S. law to deny assistance should be restricted in U.S.implementing legislation.

Under the Statute of the Tribunal adopted under Chapter VII of theCharter of the United Nations, the United States has an obligation toarrest and surrender accused persons to the Tribunal. However, as U.S.law requires an extradition treaty with a foreign government beforeallowing extradition, the implementing legislation should include provi-sions that would (1) specify that orders of the Tribunal should bedeemed equivalent to requests by a foreign government under such atreaty and as authorizing extradition to the Tribunal; (2) incorporate thepertinent language of selected articles of a modern extradition treatyrelating to the issues requiring particular regulation; and (3) precludethe denial of extradition on the basis that the crimes charged before theTribunal are "political offenses."


III. Conclusion

The Section of International Law and Practice believes that the ABAshould support the establishment of the Tribunal and urge Congress topromptly adopt implementing legislation to enable the President of theUnited States to give full support to the Tribunal. The Section furtherbelieves that the ABA should urge that every effort be made to assurethat due process and procedural guarantees are fully respected in theimplementation of the Tribunal's mandate.

Endorsement of the Tribunal through adoption of the accompanyingRecommendation by the American Bar Association will further theprocess begun by the United Nations to prosecute those responsible forviolations of international humanitarian law committed in the territoryof the former Yugoslavia. In addition, it will strengthen the ability of theU.S. Government to effect the implementation of the Tribunal's mandatein a manner consistent with due process and procedural guarantees andwill lend support to the U.S. Congress in adopting appropriate imple-menting legislation. Such an endorsement by the ABA will thus furtherGoal VIII of the Association — to advance the rule of law in the world.

Endnotes

1 S.C. Res. 808, U.N. SCOR, 48th Sess., 3175th mtg. at 2, U.N. Doc. S/25704(1993).2 S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg. at 1-2, U.N. Doc. S/25626(1993).3 Id.

Use of Force, Peacekeeping, andNonproliferation of Weapons

The first aim of the United Nations, as set forth in the Preamble to itsCharter, is to "save succeeding generations from the scourge of war";the first purpose noted in Article I is "to maintain international peaceand security." Other Articles of the UN Charter speak directly to permis-sible uses of force. Article 2(4) sets out a fundamental norm: "All mem-bers shall refrain in their international relations from the threat or use offorce against the territorial integrity or political independence of anystate, or in any other manner inconsistent with the purposes of theUnited Nations." Article 51 acknowledges that nation-states retain "theinherent right of individual or collective self-defense."

Under the UN Charter, the Security Council has a central role withrespect to the pacific settlement of disputes and with respect to efforts tomaintain international peace and security. The Security Council mayinvestigate disputes to determine whether their continuance wouldendanger the maintenance of international peace and security, and mayrecommend ways to resolve serious disputes. According to Chapter VIIof the Charter, when the Security Council determines that a threat to thepeace, breach of the peace, or act of interstate aggression exists, it maymake recommendations, require economic sanctions, or ultimately callfor collective security measures involving the use of force. The SecurityCouncil also has authorized the use of "peacekeeping forces," con-tributed by UN Member States that choose to supply personnel, to mon-itor cease-fires, observe boundary lines, and engage in reporting func-tions in consenting states. In recent years, Security Council resolutionshave called on peacekeepers to perfom other tasks intended to preventor counteract destabilizing occurrences, such as supporting the deliveryof humanitarian aid or supervising elections.

The UN Charter recognizes that Security Council decisions requirenot only a majority vote, but also the support of each major power that isa permanent member of the Council. The Security Council cannot makedecisions on Chapter VII or peacekeeping measures if the United States

29

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objects. Under Article 27 of the UN Charter, the United States, or anyother permanent member of the Security Council, may veto any decisionto take measures under Chapter VII, any Security Council decision toauthorize a peacekeeping force, or any other substantive decision of theCouncil.

The first Report in this section focuses on preventing the prolifera-tion of weapons of mass destruction, which has been a significant con-cern at the United Nations as well as a primary U.S. security goal. ThisReport analyzes the 1995 conference to extend the Treaty on the Non-proliferation of Nuclear Weapons, and finds that the United Nations is akey institution in nonproliferation efforts. The UN Security Council alsois involved with other arms control efforts, including support for theInternational Atomic Energy Agency's safeguards system, which isdesigned to verify compliance with nuclear nonproliferation require-ments; the Report proposes ways to make IAEA safeguards operationsmore effective.

Since the end of the Cold War in 1989, the Security Council has beenable, more easily than in the past, to agree on the need for peacekeepingoperations and to make decisions under Chapter VII of the UN Charterrelating to the maintenance of international peace and security. The sec-ond Recommendation and Report in this section proposes mechanisms,consistent with the UN Charter, to enable the Organization to respondmore effectively when the Security Council determines that forcesshould be deployed to maintain or restore international peace and secu-rity. As the Report discusses, care must be taken to insure that any suchmechanisms are consistent with U.S. constitutional requirements andsecurity needs.

The third Recommendation and Report in this section supports UNSecurity Council actions taken under Chapter VII of the UN Charter inresponse to Iraq's 1990 invasion of Kuwait. This third Report serves as areminder of the significant role that the Security Council may play inresponding to clear cases of aggression.

Use of Force, Peacekeeping, and Nonproliferation of Weapons 31

A. Recommendation and Report on Arms Control andNonproliferation*

Recommendation

BE IT RESOLVED, that the American Bar Association recommendsthat the United States Government take the actions listed below/ withthe cooperation and agreement of other nations whenever possible, tomaintain and strengthen the international regimes designed to controlthe proliferation of weapons of mass destruction:

A. Take all possible steps to obtain the unconditional, indefiniteextension of the Treaty on the Non-Proliferation of NuclearWeapons (NPT) at the conference of the parties scheduled forApril-May 1995.

B. Work to satisfy the NPT obligation of the five declared nuclearweapons states (the NWS) to "pursue negotiations in good faithon effective measures relating to cessation of the nuclear armsrace at an early date and to nuclear disarmament." To this end,the United States Government should:

1. pursue early completion of a comprehensive ban on nucleartesting, of indefinite duration;

2. seek an agreement restricting the production of fissile materi-al (highly enriched uranium and plutonium) for nuclearweapons;

3. declare, as a matter of national policy, that nuclear weaponshave no valid function except to deter, and possibly torespond to, a nuclear attack, and that the United States willnot use nuclear weapons first; and seek similar declarationsby other NWS;

4. seek to achieve the ratification and implementation of STARTI and II by all parties as soon as possible;

5. seek to establish an adequate system of verification and con-trol over national procedures for the dismantlement of

* This Recommendation was adopted by the American Bar Association House ofDelegates in August 1994. The Recommendation and its accompanying Reportare one of a series of five developed by the Working Group on Improving theEffectiveness of the United Nations, which was chaired by Louis B. Sohn and JayM. Vogelson and directed by Kathryn S. Mack. Members of the WorkingGroup's Task Force on Arms Control and Nonproliferation, who prepared thisRecommendation and Report, were Louis B. Sohn (Chair), Kenneth W. Abbott(Rapporteur), George Bunn, Bonnie Jenkins (Advisor), Stanley R. Resor, andJohn B. Rhinelander. Previously published in 29 International Lawyer 312 (1995).


iI

nuclear warheads, and over the disposition of surplus fissilematerial from dismantled warheads;

6. pursue talks on further nuclear weapons reductions;7. develop and seek international discussion of plans for the

eventual elimination of nuclear arms;8. seek agreement among the five NWS to grant comprehensive

security assurances to all states renouncing nuclear weaponsunder the NPT or comparable internationally binding com-mitments (the non-nuclear-weapons states, or NNWS).Assurances should be both negative — that the NWS will notuse nuclear weapons against the NNWS — and positive —that the NWS will seek immediate Security Council action toassist and support a NNWS that is subject to attack or threatsthereof;

9. work for a stronger and more intrusive NPT safeguards sys-tem, administered by the International Atomic EnergyAgency (IAEA); support current reforms of the IAEA; workto give the Agency the resources and political support itneeds; and work to establish a Security Council procedurefor promptly responding to refusals to permit IAEA inspec-tions; and

10. work with other members of the Security Council to plan andimplement "concrete steps to improve the effectiveness" ofits enforcement procedures, as the members of the Councilhave already pledged to do, with special attention to enforce-ment of nonproliferation commitments.

Pursue efforts to resolve regional disputes implicating weaponsof mass destruction before the NPT extension conference; and,in the longer term, work to strengthen the ability of the UnitedNations and relevant regional organizations to resolve disputesand to make and keep peace.

Report

I. Introduction

Preventing the proliferation of weapons of mass destruction —nuclear, chemical, and biological — is one of the most important tasksfacing mankind. An unusually broad range of issues relating to the goalof nonproliferation will appear on the agenda of the international com-munity in 1994 and 1995. To an unusual extent, moreover, these issuesare closely interrelated. The central imperative is to obtain the indefiniteand unconditional extension of the Treaty on the Non-Proliferation of

C.


Nuclear Weapons (NPT), the centerpiece of the nuclear nonproliferationregime; a conference to consider extension is scheduled for the spring of1995. In order to secure the extension of the NPT, however, a number ofrelated steps — notably negotiations on a comprehensive nuclear testban — must be taken promptly. Other measures are important to ensurethe long-term success of the nuclear nonproliferation regime and tobuild similarly successful regimes for chemical and biological weapons.

The United States has traditionally taken the primary leadership roleon nonproliferation issues, within the United Nations and in other fora.The government of the United States must, however, exercise particular-ly strong and active leadership over the next few years if it hopes toobtain the indefinite extension of the NPT and to resolve the many com-plex issues that are intertwined with the NPT and other nonproliferationregimes. The nonproliferation issues currently on the agenda — espe-cially those relating to the nuclear nonproliferation regime — are of suf-ficient gravity to require the immediate and continuing attention of thePresident himself.

The United Nations has been, and continues to be, a key institutionfor the success of the nonproliferation effort. It provides the fora inwhich states can carry out complex and sensitive negotiations. It acts asa catalyst for action. Of special importance for the nuclear nonprolifera-tion regime, the Security Council is the primary vehicle through whichthe five declared nuclear weapons states under the NPT (the NWS) —the United States, Russia, the United Kingdom, France, and China,which are also the five permanent members of the Council — can collec-tively act and make commitments. Finally, the Council remains theagency with ultimate responsibility for the enforcement of nonprolifera-tion commitments in all areas, a responsibility that is almost certain toincrease.

II. Extending the NPT

The NPT entered into force in March 1970. Article X:2 of the Treatyprovides for a single conference, at the end of the initial 25-year term, todetermine whether the NPT shall (1) continue in force indefinitely, (2) beextended for an additional fixed period, or (3) be extended for more thanone additional fixed period. This conference will be held at the UnitedNations in April and May 1995; two of the four planned preparatorymeetings had been held by February 1994. At the conference, the deci-sion to extend must be taken by majority vote of the parties to theTreaty, already over 160 in number.

Extension of the NPT is crucial to the nonproliferation effort. Underthe NPT, all parties other than the five NWS commit themselves not toacquire nuclear weapons. The Treaty thus provides the only global norm


against the proliferation of such weapons. The NPT is the basis for theregime of safeguards, administered by the International Atomic EnergyAgency (IAEA), that is designed to detect diversion of fissionable mater-ial from peaceful to weapons uses. The Treaty also helps legitimizeinternational pressure and the threat of sanctions against nations such asNorth Korea, Iraq, and Iran. Over the years, the NPT has helped torestrain states from developing nuclear capabilities, and has delegit-imized the activities of the few states that have undertaken clandestinenuclear programs.

Unconditional extension of the NPT for an indefinite period is theannounced policy of the United States. Indefinite extension has alsobeen called for by the Group of Seven, NATO, the European Union, andthe Secretary-General of the UN, among others. Should indefinite exten-sion prove politically impossible, the best alternative would be to makethe Treaty automatically renewable for an indefinite succession of 25-year terms. (If necessary, a procedure for avoiding automatic renewalcould be established.) Extension for a single fixed period should beavoided, since the NPT provides for only one extension conference.

It is important to note that obtaining a majority vote for either of thedesirable extension options may be difficult. The 1995 extension confer-ence will be the first time since the Treaty was signed that the non-nuclear-weapons states will have significant bargaining power withwhich to advance their agenda. The NWS will have to take action onseveral complex and controversial measures in order to win politicalsupport for indefinite, unconditional extension. There now appears to bea consensus, for example, that agreement on an indefinite extension ofthe NPT can only be achieved if the NWS agree to a comprehensive banon nuclear testing that is also of indefinite duration. Much of the remain-der of this report deals with this and other steps that appear necessary toobtain a satisfactory extension of the NPT.

III. Satisfying the Obligations of NPT Article VI

In Article VI of the NPT, all parties to the Treaty undertook to pur-sue negotiations in good faith (1) on effective measures relating to cessa-tion of the nuclear arms race at an early date, (2) on effective measuresrelating to nuclear disarmament, and (3) on a treaty on general and com-plete disarmament under strict and effective international control. Forthe most part, of course, these obligations pertain only to the NWS.Article VI was seen as part of the grand bargain between the nuclear andnon-nuclear powers: Article VI negotiations, it was hoped, would grad-ually reduce the nuclear threat to the non-nuclear-weapons states(NNWS), i.e., those states renouncing nuclear weapons under the NPTor comparable internationally binding commitments.


At the four previous NPT review conferences, held at five-year inter-vals, the NNWS have strongly criticized the NWS for failing to carry outtheir obligations under Article VI. Indeed, two review conferences,including the most recent, held in 1990, failed to reach consensus on afinal declaration because of these issues. The Article VI obligations thusappear likely to become central issues at the extension conference.

A. By the phrase "at an early date," the Treaty itself suggests thatmeasures relating to cessation of the nuclear arms race are of thegreatest urgency. Several such measures have been on the interna-tional agenda continuously since 1968, and are now under consid-eration at the Geneva Conference on Disarmament. The NNWShave consistently complained of the nuclear powers' failure to takeaction on these measures. The three most important are:

(1) a comprehensive ban on nuclear testing (CTB). A CTB has beenthe highest priority demand of the NNWS, in part because thepreamble of the NPT specifically calls for such a measure.Reciprocal testing moratoria among all of the NWS except Chinaare already in place; President Clinton proposed a global CTB inJuly 1993. There remains, however, an obligation to continuenegotiating in good faith. France and China, which first becamesubject to this obligation when they joined the NPT in 1992, andthe United Kingdom must actively participate in CTB negotia-tions. As noted above, significant progress towards a CTB ofindefinite duration, if not an actual treaty, among the five NWSwill be an important factor in efforts to obtain an indefiniteextension of the NPT. In the interim, the existing moratoria mustbe kept in place.

(2) an end to the production of fissile material — highly enricheduranium (HEU) and plutonium — for nuclear weapons, withthe ultimate goal an end to the production of these dangeroussubstances for any purpose. The United States has unilaterallysuspended production of both materials; Russia has recently cutoff production of HEU, and has committed itself to cease pluto-nium production by the year 2000. In September 1993, PresidentClinton proposed a global production cutoff for weapons pur-poses, with adequate safeguards for peaceful uses; the UNGeneral Assembly issued a call for such an agreement in thesame year. These initiatives may provide an impetus for signifi-cant progress. The most effective approach would include twobasic steps:


(a) negotiations aimed at achieving a multilateral agreementcutting off production of fissile material for nuclearweapons purposes by a specified date, with any necessaryimprovements in IAEA safeguards. Such an agreementshould at least include all five NWS; ideally, it would alsoinclude the several "near-nuclear" states and a number ofother nations. The Geneva Conference on Disarmamenthas begun to address this issue, as has the IAEA; theUnited States should strongly support these efforts. Itwould be highly desirable if significant progress could bemade before the NPT extension conference. Negotiationson a cutoff agreement would be greatly enhanced by theadoption of additional production moratoria.

(b) multilateral negotiations on a total end to the productionof HEU and plutonium. With nuclear technology increas-ingly widespread, reducing the availability of fissile mate-rial may be the most effective way to constrain the clan-destine production of nuclear weapons. A total productioncutoff is probably a longer-term goal, because severalstates have invested in breeder reactor programs.

(3) condemnation of the use of nuclear weapons for any purposeother than deterrence of, and possible response to, a nuclearattack. NWS military doctrines that contemplate first use ofnuclear weapons — whether against conventional, chemical, orbiological attack — exacerbate the security concerns of theNNWS and legitimate their desire to possess nuclear weapons.Such doctrines also highlight the discrimination between NWSand NNWS inherent in the NPT. Restrictions on use have fromthe beginning been considered an important part of the "mea-sures relating to the cessation of the nuclear arms race" contem-plated under NPT Article VI. To date, the NWS - with thenotable exception of China — have been unwilling to constraintheir military doctrines to this extent.

The United States should exercise leadership on this issueby declaring as a matter of national policy, after consultationwith its allies, that nuclear weapons have no valid functionexcept to deter, and possibly to respond to, a nuclear attack, andthat the United States will not use nuclear weapons first. Itshould then seek similar declarations from the United Kingdom,France, and Russia, and should seek a reaffirmation of China'spledge not to use nuclear weapons first. Essentially the same rec-ommendation has been made by the Committee on InternationalSecurity and Arms Control of the National Academy of Sciences.

-


Now that the primary U.S. security goal has shifted fromdeterring an attack by the Soviet Union on Western Europe topreventing the spread of nuclear weapons/ the United Statesshould act to deemphasize the role of such weapons. Theannouncement of a no-first-use, deterrence-only policy fornuclear weapons would be an exercise of leadership by exampleas well as by precept. The increased credibility that such anaction would give U.S. efforts to discourage other nations fromacquiring nuclear weapons would outweigh any possibleadvantage of retaining the option of first use.

B. NPT Article VI also calls for good faith negotiations on effectivemeasures relating to nuclear disarmament. The United States andthe Soviet Union made significant progress on this matter with theIntermediate-Range Nuclear Forces Treaty and the START I and IIagreements. START I and II, when fully implemented, will reducethe number of deployed strategic weapons by some two-thirds. Yetthe number of strategic weapons still deployed will even thenexceed the number deployed when the NPT was signed in 1968.

In addition, implementation of the START agreements is not yetassured. Under the Lisbon Protocol, START I is now a five-partytreaty, including the former Soviet Union states of Ukraine,Kazakhstan, and Belarus — where Soviet strategic weapons werestationed — as well as Russia and the United States. START I hasnot gone into effect, however, because Ukraine has not yet ratifiedthe NPT as a NNWS, as required by the Lisbon Protocol.Ratification of the bilateral START II is suspended in both theUnited States and Russia, primarily because of the problem withSTART I. It is essential that these two agreements be ratified andput into effect as soon as possible.

Once the START agreements are in effect, implementation ofagreed weapons reductions should be accelerated. The UnitedStates and Russia have already begun to dismantle some weapons,including nuclear warheads, and have committed themselves tofurther deactivation in a trilateral statement issued with Ukraine inJanuary 1994. As this process continues, it is essential to reachagreement on, and to put into operation, adequate systems for ver-ifying and controlling the dismantlement of nuclear warheads andthe disposition of the fissile material removed from them in a formnot readily convertible to weapons uses. Such safeguards are anessential counterpart to efforts to terminate production of addition-al fissile material for nuclear weapons. The March 1994 agreementbetween the United States and Russia to permit on-site inspection


of facilities where plutonium triggers from dismantled nuclearwarheads are stored is an important step in the right direction.

It would also be highly desirable if further strategic arms talkswere underway, or in an advanced stage of planning, by the timeof the NPT extension conference. The first step should be bilateraltalks between the United States and Russia aimed at reducing eachparty's deployed strategic weapons to an agreed level no higherthan 1500. For the first time, the United Kingdom, France, andChina must also be brought, formally or informally, into the SALT-START process to negotiate limits on their strategic weaponsdeployments. This process would be eased by the U.S.-Russianagreement just mentioned, since that would bring the strategicarsenals of all five NWS closer to a comparable range. Finally, sincethe NPT requires negotiations related to nuclear disarmament, notmerely arms control, the United States and the other nuclear pow-ers should at least begin serious planning for the longer-termfuture, with explicit attention to modalities for eventually eliminat-ing nuclear arms from national arsenals. The United States last pro-posed such a plan in 1962.

C. The Article VI obligation to pursue negotiations on a treaty on gen-eral and complete disarmament stands on a somewhat differentfooting. Article VI itself suggests that such a treaty would have toprovide for "strict and effective international control"; under pre-sent circumstances, however, such a prospect seems unlikely. Inaddition, the preamble to the NPT suggests that the parties saw ageneral easing of international tension and the building of trustamong nations as preconditions for negotiations on general andcomplete disarmament. Even with the end of the Cold War, itseems apparent that these conditions are not satisfied. This Reportthus makes no specific recommendation on general and completedisarmament, except to suggest that the issue be considered alongwith nuclear disarmament in long-range planning efforts.

IV. Security Assurances

While security assurances are not a part of the NPT itself, they havebeen a prominent and controversial issue since the original negotiationof the Treaty. The NNWS have sought from the five NWS both negativeassurances — that the NWS will not use nuclear weapons against a statethat has renounced such weapons — and positive assurances — that theNWS will seek and support immediate Security Council action to assistand support a NNWS that is subject to nuclear attack or nuclear black-mail. Some states allegedly refused to join the NPT because of inade-


quate security assurances; it is thought that others, including Italy andJapan, felt able to join only because of alliance commitments.

In Security Council Resolution 255 (1968), the three NWS intendingto sign the Treaty (France abstained, and the People's Republic of Chinawas not yet in the UN) gave a collective positive assurance, stating thatthe Council would be obligated to act in the event of nuclear aggressionor the threat thereof. The United States, the Soviet Union, and the UnitedKingdom unilaterally declared that in such a situation they would seekand support immediate Council action, while reaffirming the right ofcollective self-defense until the Council had acted. No negative assur-ances were given. Since that time, however, all five NWS have givenunilateral negative assurances, though most of them contain significantexceptions.

The NNWS have consistently sought stronger assurances of bothtypes, presenting the issue as one of basic reciprocity between them-selves and the NWS. Both the UN General Assembly and the Non-Aligned Movement have recently called for binding, collective assur-ances. The issue is likely to be pressed aggressively at the extension con-ference.

The importance of security assurances has recently been broughthome to the NWS as well. The United States referred to Resolution 255to help bring Kazakhstan into START I and into the NPT as a NNWS, asrequired by the Lisbon Protocol. In the case of Ukraine, more extensiveassurances have been necessary.

In November 1993, the Ukrainian parliament (Rada) failed toapprove adherence to the NPT; it did approve ratification of START I,but only subject to a number of conditions, among them broad securityassurances. At the Moscow Summit in January 1994, Presidents Clinton,Yeltsin, and Kravchuk of Ukraine issued a trilateral statement settingforth extensive security assurances. The positive assurances are based onResolution 255 and the concurrent national statements. Many of the neg-ative assurances are drawn from the Final Act of the Conference onSecurity and Cooperation in Europe (CSCE). These provisions repudiatethe use of force generally and provide assurances as to Ukraine's inde-pendence, sovereignty, and territorial independence; they also harmo-nize differences among existing NWS assurances. These assurances,however, do not come into force until Ukraine ratifies the NPT as aNNWS. In February 1994, the Rada approved START I unconditionally,based in part on the January security assurances. A vote on ratificationof the NPT, however, will not take place until after the 1994 parliamen-tary elections.

The NWS should be prepared to give an expanded positive securityassurance to all states renouncing nuclear weapons under the NPT or


comparable internationally binding commitments, in the form of (1)strengthened individual declarations, supported by (2) a SecurityCouncil resolution accepted by all five permanent members. The credi-bility of future Security Council action is an essential element of suchassurances, yet the veto power makes such action inherently uncertain.The five permanent members, which are also the five NWS, shouldstudy constructive ways of achieving consensus that will allow theCouncil to respond when necessary. The NWS should also give astrengthened negative assurance in the same format, removing excep-tions that are a vestige of the Cold War. Ideally, the NWS should consid-er framing this negative assurance as part of a broader agreementrestricting the use of nuclear weapons, as discussed above in sectionIH:A(3) of this report.

V. Strengthening Verification and the IAEA

A credible verification process is essential to the long-term health ofthe nuclear nonproliferation regime. The IAEA has been responsible forverification through its safeguards system, but the discovery of a clan-destine Iraqi nuclear program demonstrated the limitations of theAgency's prior approach. The international community has now come toexpect that the IAEA will provide a higher level of assurance. A wide-spread perception that it can do so will be essential to extension of theNPT. A number of steps are necessary to strengthen the safeguardsregime; some have already been initiated. The United States and otherNWS should take the lead in ensuring that the necessary improvementsare implemented.

A. A more effective monitoring system must be put in place. Prior tothe Iraq episode, the IAEA focused on routine monitoring andinspection of declared inventories at declared nuclear facilities.This approach is valuable, and efforts should be made to strength-en it. By itself, however, it is clearly insufficient. The IAEA has nowacknowledged that it possesses, and has pledged to use, theauthority to make special inspections of suspect sites at any loca-tion within the territories of NPT parties (and other states withequivalent commitments). The first manifestation of this newapproach is the current effort to inspect non-declared NorthKorean sites. The IAEA Secretariat has also advanced additionalsafeguards proposals that are deserving of support. Finally, IAEAexperts are currently studying entirely new safeguards modalities,some of which may require enlargement of the Agency's legalauthority.


B. The IAEA must be given the resources and support necessary toadminister a strengthened safeguards system. One aspect of this,obviously, is financial; an expanded, more intrusive safeguardsregime will be costly. The major powers must also make arrange-ments to share relevant intelligence information, obtained bynational technical means or otherwise, with the IAEA. The currentdispute with North Korea demonstrates that some degree of intelli-gence sharing has already begun.

C. The Security Council must provide strong and credible politicalsupport for expanded safeguards operations, especially in caseswhere states refuse to permit authorized inspections. The IAEAStatute and standard safeguards agreements already authorize,indeed require, the IAEA to report such refusals to the Council.The Agency's first such report, filed in April 1993, dealt with NorthKorea; the IAEA again referred North Korea's refusal to acceptvalid inspections to the Council in March 1994. The SecurityCouncil has considerable authority to deal with such situationsunder Chapter VI of the UN Charter; Chapter VII is also availableif necessary. (As this report is written, the President of the SecurityCouncil has issued a statement directing the IAEA to report back tothe Council in several weeks, following additional attempts tocomplete the disputed inspections. The President's statement refersto the possibility of further Council consideration of the matter;this is widely understood to be a highly oblique reference to thepossibility of economic sanctions under Chapter VII against NorthKorea.)

D. Some have suggested that further external reviews of the IAEA'ssafeguards system and its failure in Iraq should be undertaken.This report does not support such suggestions: a number ofreviews have already been made, and the IAEA Secretariat, as wellas its Safeguards Advisory Group and other outside bodies, havemade numerous suggestions for reform. Further efforts at this timeshould be focused on implementing the reforms that have beenproposed.

VI. Regional Issues

Before the NPT extension conference, every effort must be made toresolve a number of complex regional issues that stand as stumblingblocks to broader progress on nonproliferation and arms control.

A. The two most immediate problems have already been alluded to inthis report. First, it is essential that Ukraine carry out its obligation


under the Lisbon Protocol to adhere to the NPT as a NNWS, thusrelinquishing control over the former Soviet strategic nuclearweapons on its territory. The trilateral statement issued in January1994 — described above in section IV of this Report — addressesmany of the Ukrainian Rada's expressed concerns: in addition tosetting forth broad security assurances, the statement establishesprinciples and procedures governing economic assistance, and pro-vides compensation for shipping the ballistic missiles and nuclearwarheads on Ukrainian territory to Russia for dismantlement overa relatively short period of time. Both President Kravchuk and theUkrainian Rada have now recognized Ukraine's obligation to jointhe NPT, but actual ratification has not been approved, and a votehas now been deferred until a new parliament has been elected.The United States should press Ukraine to transfer all nuclearweapons for dismantlement as quickly as possible, and shouldcontinue to work for prompt Ukrainian ratification of the NPT, sothat the security assurances in the trilateral statement can takeeffect and the START I treaty can be ratified by all five parties, andso that a nuclear Ukraine does not discourage other nations fromsupporting extension of the NPT.

B. The second urgent problem is that of North Korea's continuedrefusal to allow IAEA inspections of all suspect sites within its ter-ritory. North Korea's recent acceptance of IAEA inspections atseven declared sites appeared to represent significant progress, butsoon thereafter the North Korean government refused to allowIAEA inspectors access to the most sensitive of these sites, and theIAEA has referred the matter to the Security Council. The situationis compounded by North Korea's earlier decision to withdrawfrom the NPT; that decision is currently suspended, but NorthKorea has again threatened to withdraw if the Council imposessanctions against it. The situation in North Korea stands as animportant test of the NPT regime, especially the authority of theIAEA and the enforcement power of the Security Council. Ademonstration that the regime can successfully manage such a sit-uation without armed conflict will be an important factor inobtaining NNWS support for extension of the NPT.

C. The strong political tensions in the Middle East have led to signifi-cant nonproliferation problems. A number of states in the regionare not parties to the NPT. Israel is generally believed to possess asubstantial number of nuclear weapons. One or two other MiddleEastern states, apart from Iraq, may also have clandestine nuclearweapons programs, although weapons production is not believed


to be imminent. The United States and the General Assembly haveproposed the establishment of a nuclear-free zone in the MiddleEast. These proposals are deserving of support.

In addition to the nuclear threat, a number of Middle Easternstates are believed to have developed chemical and biologicalweapons capabilities as a counter to Israel's nuclear arsenal; somehave indicated that they will not ratify the CWC until Israel joinsthe NPT as a NNWS. In this region more than any other, then, theproblems of nuclear, chemical, and biological weapons prolifera-tion are interrelated. It is essential that these issues be systematical-ly addressed as part of the Middle East peace process. Regionaltensions arising outside the Arab-Israeli framework, like thosebetween Iran and Iraq, have also encouraged proliferation. Theseconflicts must be addressed in other fora.

D. In the South Asian region, both India and Pakistan are believed tohave nuclear weapons capabilities, and are rapidly developingimproved surface-to-surface ballistic missiles. Pakistan has pro-posed a nuclear-free zone for the region, a concept supported bythe UN General Assembly, but India has refused to participate.The United States has recently proposed that the two countriesagree to halt production of fissile material for nuclear weapons,with international safeguards, and to ban the deployment of mis-siles that could deliver nuclear weapons. India, however, has indi-cated that it will only agree to restrain its own nuclear program ifChina participates in any regional arrangement and if significantprogress is made on world-wide nuclear disarmament. Thus, manyof the global issues discussed in this report in the context ofextending the NPT are relevant to resolving the South Asian prolif-eration problem, just as South Asian proliferation stands in theway of universalizing the NPT.

VII. Strengthening Security Council Enforcement

The UN Security Council bears the ultimate responsibility forenforcing the obligations of the NPT and other nonproliferation agree-ments. In their collective statement of January 31,1992, the members ofthe Council — meeting at the summit level — declared that "the prolif-eration of all weapons of mass destruction represents a threat to interna-tional peace and security." This statement recognizes the Council'sresponsibility for enforcement under Chapter VII of the Charter. Morespecifically, the statement declares that the members of the Council "willtake appropriate measures" to deal with violations of the NPT notifiedby the IAEA. (The Council's Chapter VII authority, of course, can be


exercised even against a state that is not a party to a particular nonpro-liferation agreement or one that has withdrawn from such an agreementunder the relevant withdrawal clause.)

Unfortunately, both the structure and the history of the Council'soperations reduce the credibility of these declarations. Structurally, theveto power makes it difficult for the Council to commit itself to futureaction in situations where the interests of the permanent members maydiffer dramatically. Historically, the Council has been unwilling orunable effectively to address the nuclear weapons programs of the"near-nuclear" states, including India, Pakistan, and Israel.

In their summit statement the members of the Council declared thatthey would "take concrete steps to enhance the effectiveness of theUnited Nations" in the areas of nonproliferation, arms control, and dis-armament. The Council should initiate a serious study, involving theSecretariats of the UN and the IAEA as well as other interested parties,to identify specific feasible measures, much as it has done in the area ofpeacekeeping. The United States and other NWS should strongly sup-port the needed reforms.


B. Recommendation and Report on Peacekeeping, Peacemaking,and Peace Enforcement*

Recommendation

BE IT RESOLVED, that the American Bar Association recommendsthat the United States Government support the creation by the UnitedNations, in addition to trained peacekeeping forces, of trained standbymilitary forces for peacemaking and peace enforcement, composed ofunits from the national military forces of State Members of the UnitedNations, which would be available on call by the Security Council underconditions prescribed in agreements to be concluded pursuant to Article43 of the United Nations Charter.

Report

I. Terminology

As used here: "Preventive diplomacy" is action to prevent disputesfrom arising between parties, to prevent existing disputes from escalat-ing into conflicts, and to limit the spread of the latter when they occur."Peacekeeping" forces refers to lightly armed troops used to monitor,observe, report, and act as a buffer with the consent of the parties."Peace enforcement" forces refers to troops used to enforce or restore,sometimes without consent of the parties, observance of a peace orcease-fire agreement; it also refers to troops used to deter or to stopaggression (sometimes referred to as "peacemaking" troops).i "Peaceoperations" embraces operations of the type conducted by either or bothsuch forces.

* This Recommendation was adopted by the American Bar Association House ofDelegates in August 1994. The Recommendation and its accompanying Reportare one of a series of five developed by the Working Group on Improving theEffectiveness of the United Nations, chaired by Louis B. Sohn and Jay M.Vogelson and directed by Kathryn S. Mack. Members of the Working Group'sTask Force on Peacekeeping, Peacemaking, and Peace Enforcement, who pre-pared this Recommendation and Report, were Louis B. Sohn (Chair), H. FrancisShattuck, Jr. (Rapporteur), Timothy Earner, Hurst Hannum, Harry A. Inman,John F. Murphy, Bruce C. Rashkow (Advisor), and Edwin Smith, Previouslypublished in 29 International Lawyer 324 (1995). This Report expands on some ofthe themes in an earlier report written by H. Francis Shattuck, Jr., which waspublished in the Record of the Association of the Bar of the City of New York 981-92(Dec. 1993).


II. Settling Disputes Before Conflicts Turn Violent

The methods available to the UN to promote peaceful settlement ofdisputes should be strengthened: (1) The monitoring of signs of tensionshould be improved to enhance the early warning system and facilitateearly use of preventive diplomacy and other Chapter VI measures.Improved sharing by UN members of political and intelligence informa-tion may be all that is required. (2) Without institutionalization, theworld-wide list of potential and qualified potential factfinders andmediators, who are available to the Secretary-General and the SecurityCouncil, should be continuously updated for ready access and use.

III. Guidelines for Peacekeeping and Peace Enforcement Operations

UN mandates and strategic military objectives should be more clear-ly stated and more effectively monitored by the Security Council and theSecretary-General. As discussed below, reinstatement of the MilitaryStaff Committee could help to achieve this result.

The traditional guidelines for peacekeeping operations, whichinclude consent of all parties and "observance" of the performance ofUN resolutions, are adequate for traditional peacekeeping. However, theevolution of UN operations into situations requiring or potentiallyrequiring the use of armed force (e.g., to protect delivery of humanitari-an aid, maintaining law and order, protecting a right of passage), some-times without the consent of the parties, calls for development of uni-form military doctrine and of uniform rules of engagement tailored todifferent types of missions, and flexible enough to be adaptable for indi-vidual missions,

Uniform military doctrine for peace operations short of war is astarting point, to be followed by the development of rules of engage-ment, uniform interpretation of such rules, and standardization of pro-cedures and tactical equipment. All are essential. Once these objectivesare accomplished, uniform training manuals covering different types ofpeace operations can be prepared, and uniform and combined trainingof units from different countries can effectively be conducted.2

Combined training of units should include units from all permanentmembers of the Security Council (U.S., Russia, U.K., France, China) aswell as from other potential troop-furnishing states. Hopefully, thiswould involve a gradually increasing number of states and the fullrange of peace operations contemplated under the UN Charter.

To facilitate meeting these important objectives an InternationalPeace Institute and Training Center should be established. One possible

IV. International Peace Institute


site might be the unused Fort Dix facilities, as suggested by PresidentBush in 1992. From such an institution a cadre of staff-level individuals,uniformly trained in a wide range of peace operations, would emerge,capable of training troops in their own countries and in regional trainingcenters. Combined training exercises might also be conducted at thePeace Institute.

Such an institute could also be a training center for services provid-ed by non-military UN personnel, e.g., for policing, election monitoring,refugee processing, human rights monitoring, and conflict resolution.

The Institute could be owned and operated by the United Nations orprivately owned and operated or a mix. A privately owned and operat-ed facility would be more efficient and responsive to evolving needs.

The Institute could also be a training center for non-governmentalorganizations involved in international humanitarian assistance opera-tions. This in turn could lead to better harmonization of such operationswith UN military and non-military operations.

In any event expanded and continuous UN training programs andfacilities are much needed.

V. Standby Military Forces

A. The Need for Standby Forces

The time is overdue for the creation of standby UN military forcesfor peace enforcement as well as peacekeeping now that the Cold War nolonger blocks the way. Creation of such forces would help substantiallyto promote and enforce the rule of law in international affairs. Article 43of the UN Charter itself provides that members will make peace enforce-ment forces available on call by the Security Council under agreementsto be negotiated.3 The U.S. should take the lead in this respect.

The scope of such agreements would include the following:Numbers, types, and capabilities of forces; training; degree of readiness;arms and equipment; location prior to call-up; logistical support; com-mand; geographic limitations on use; length of deployment. Also, assis-tance, facilities, or rights of passage could be addressed.4

The need for such forces is acute because:

• Speed in deployment is essential once UN military action hasbeen decided upon.

• The mere existence of standby forces acts as a deterrent toaggression and other unlawful actions.

• The UN is experiencing severe delays and increasing shortagesin negotiating, deploying, and funding troops, e.g., in Bosnia.Some countries are scaling back their operations. When directedto implement a Security Council decision, the Secretary-General


should not be wholly dependent upon UN Members to volun-teer the necessary troops.

• The existence of a standby force will help to furnish SecurityCouncil members with the political will to take firm action whenthat is required.

Had UN standby forces been available for preventive deploymenton the Iran/Iraq border in 1980, or at the Iraq/ Kuwait border in 1990,perhaps coupled with a UN show of force, the ensuing wars might wellnot have occurred. Had standby forces been readily available for rapiddeployment in Angola during and after the 1992 elections, at the begin-ning of events in Somalia and in Bosnia, in Haiti in 1993 after theGovernor's Island Agreement, and in Rwanda in 1994, the situations ineach of those countries would almost certainly be different today.

Standby forces would be part of each Member's national militaryforce when not called up for UN duty. They would include (a) peace-keeping forces, (b) rapid reaction forces for peace enforcement missionsincluding preventive deployment, and (c) backup peace enforcementforces.

The UN Secretary-General is currently securing indications fromMembers of what they would be willing in principle to provide (troopsor equipment or both) if asked. While this inventory of "buildingblocks" being compiled is a step in the right direction, it relates only totroops and equipment for peacekeeping. Also, the degree of commit-ment to supply troops, and the state of training and of readiness of suchtroops, are unlikely to equal those which would be provided underArticle 43 agreements. Even if commitments of armed forces madeunder Article 43 agreements are limited or conditional, their existencewill go far towards assuring the United Nations of ready access totrained peacekeeping and peacemaking troops available on relativelyshort notice.

A standing UN force, which some have suggested, would be unnec-essarily costly and duplicative as long as standby forces are availableand able to perform their duties effectively. The institutional frameworkfor standby forces is already in place, namely existing national land, sea,and air forces and Article 43.

The U.S. should be prepared to "do its share" of UN duty. Thisincludes military service of all kinds. Any other course would signalabdication by the U.S. of its leadership role in the UN.

Some may argue that troop commitments under Article 43 agree-ments would unreasonably restrict a state's flexibility (1) not to takeaction, (2) to act to protect its interests in some fashion other than thatadopted by the UN, and (3) to act to protect its interests when it per-ceives that the UN has failed to do so.


In the United States, the U.S. veto right in the Security Council is theanswer to (1) and (2). The U.S. can veto any proposed UN action ofwhich is disapproves, including deployment of troops. Regarding (3), inany Article 43 agreement a Member would presumably reserve the rightto use any of its troops for self-defense under Article 51 or for nationalemergencies. As a practical matter this should, in large measure, answer(3). A state would, of course, remain free to use all its troops, less thenumber covered by its standby commitment. In deciding upon the num-ber and type of its standby forces any country should take this factorinto account. It, of course, remains free to increase the overall size of itsmilitary forces. To say that an Article 43 agreement would unreasonablyrestrict a state's flexibility is tantamount to rejection of the UnitedNations collective security system, and a continuation of today's inade-quate ad hoc approach to every threat to international peace, breach ofthe peace, or act of aggression.

B. Size, Makeup, and Cost of Peace Enforcement Forces

For peace enforcement, as a starting point, a relatively small rapid-reaction force of units, totaling, e.g., 6,000 troops, with armored capabili-ty should be organized. These troops should be trained uniformly to thesame level of proficiency, including combined field exercises, andshould be placed on standby under Article 43 agreements. Air and seasupport would be included. For military effectiveness the units wouldcome from a limited number of countries. However, as soon as the forceis increased, the force composition should be broadened to include asmany states as possible when their forces have been trained to a compa-rable level of performance, subject to overriding military efficiencyrequirements.

As to cost: Troops which a country agreed to make available to theUN on call would normally come from its national forces. When not onUN duty, they would not represent an additional defense cost to thetroop-supplying country except for the cost of any special training notgiven to its other troops. This sum would be minimal.

When such troops are assigned to UN duty, under present proce-dures the UN would reimburse the troop-supplying government at stan-dard UN rates. The supplying government would absorb any differencebetween actual costs and reimbursed costs.

Because the size, duration, nature of mission, geography, climate,etc. of every UN operation is different, it is not possible to suggest a costfigure for a "typical" UN operation. However, the estimated cost to theUN of deploying a 6,000 man force with motorized and armored capa-bility is in the order of $120 million for a period of one year.s


C, Volunteerism

A study should be made whether, and to what extent, it might bepossible for standby forces, both peace enforcement and peacekeeping,to be composed of individuals who have expressly volunteered for UNduty. Troops composed of volunteers are likely to be more efficient andhave a higher morale.e In the United States and perhaps elsewhere, sucharrangement could diminish considerably political opposition to the useof UN troops when it is realized that they had expressly volunteered forUN missions.7

D. Command

The UN Charter states, understandably, that "Questions relating tocommand of such forces should be worked out subsequently/'s since themission and troop composition of each UN operation will be different.

Where units are predominantly from one country, the force com-mander should be from that country for obvious morale and efficiencyreasons. When no one nation's forces predominate, operational com-mand should be decided on a case-by-case basis, taking into account thetype of operation, its complexity, the competency of any proposed UNoperational commander, and other factors. If a fully qualified competentnon-U.S. operational commander is available, the U.S. Commander-in-Chief should be free to accept such a commander.

Article 43 agreements by governments furnishing troops can beexpected to include a condition relating to command, possibly simplythat operational command arrangements are to be agreed for each oper-ation.

The NATO model provides a solid base for building a multinationalcommand structure. There the commander-in-chief for each majorNATO command assigns strategic objectives and directions to the opera-tional commanders of the several national units under him. (Such objec-tives may be geographic, functional, or a mix.) Each unit commanderhas the operational command and responsibility for the planning func-tion for his unit in achieving the objectives assigned by the major NATOcommander. While maintaining responsiveness to the NATO opera-tional chain of command, each national commander maintains commu-nications with his national headquarters on any matter.?

Similarly, a UN Force Commander would assign strategic objectivesto national unit commanders, e.g., battalion or higher level commanders,depending upon the size of the national contingent. Each unit comman-der would do the planning and have operational command in achievinghis assigned objectives. Close coordination between and among nationalcontingent and unit commanders is essential, as is true in any joint oper-


ation. The commander of any national unit would be allowed to com-municate directly with his national headquarters on any matter.io

The possibility of incidents like the reported Italian refusal of anorder in Somalia cannot be entirely avoided, but can be reduced sub-stantially by improved UN mandates, by their improved translation intomilitary terms,n by developing uniform military doctrines and rules ofengagement, and by engaging in combined training over time.iz

According to a summary of the Presidential Decision Directive(P.D.D. 25), the President retains and will never relinquish commandauthority over U.S. forces. On a case-by-case basis the President willconsider placing U.S. forces under the operational control of a compe-tent UN commander for specific UN operations authorized by theSecurity Council. At the same time, the U.S. chain of command to thosetroops will remain intact." Otherwise, the lack of a link between U.S.troops and their Commander-in-Chief would raise constitutional issues.

E. No Derogation from Powers of President or Congress

The creation and use of standby forces does not derogate from pow-ers of the President as Commander-in-Chief. The President mustapprove any request for troops by the UN under an Article 43 agree-ment and join in any decision as to their use. Both require a decision bythe Security Council in which the President — through the U.S. repre-sentative, whose vote he directs — already has a veto. As Commander-in-Chief he retains the right to recall them.

Congressional approval is not presently required. This was settled atthe time of ratification of the UN Charter^ and enactment of the UnitedNations Participation Act (U.N.P.A.). It provides that once Congress hasapproved an Article 43 agreement no further Congressional authoriza-tion is required before Article 43 forces are made available. However, ifan Article 43 agreement should provide for a large multidivision army,e.g., a Desert Storm-size standby force, in approving the agreementCongress would be well advised to require the President to obtainCongressional approval, by a fast track procedure, prior to its use.

F. Consultation

Consultation by the Executive Branch with Congress on peace oper-ation matters has improved substantially. Because voters ultimately bearthe cost in lives and funds and because of Congress's power of the pursesuch frequent consultation is to be encouraged. Such is the object of H.R.3405, which is unobjectionable but not necessary. However, legislationthe thrust of which would be to require express approval from Congress


before the dispatch by the President of peace operation troops on anymission raises serious constitutional issues.

G. War Powers Resolution

As to the War Powers Resolution, Section 6 of the U.N.P.A. consti-tutes Congressional authorization of the introduction of armed forcesinto hostilities. Further, a joint resolution approving an Article 43 agree-ment would supersede any inconsistent provision of the Resolution.Nevertheless, when Congress approves an Article 43 agreement itwould be advisable, for the avoidance of doubt, for it to reaffirm that nofurther authorization from Congress is required for the President tomake such forces available and to deploy them.

H. Interim Measures to Be Taken

Meanwhile, as urgent interim measures until Article 43 agreementshave been negotiated and concluded: (1) UN Members should informthe UN of the number of units potentially available and for what type ortypes of operations, and keep the UN advised of the status of suchforces. They should also inform the UN as to potentially available equip-ment, facilities, and rights of passage. (2) The UN should expand its dataon potentially available forces to include peace enforcement as well aspeacekeeping troops. (3) Uniform peacekeeping and peace enforcementtraining programs should be promptly developed and started, asalready discussed. (4) Members should proceed to develop a smallrapid-reaction standby force potentially available for use at the requestof the Security Council.

VI. Military Staff Committee

The Military Staff Committee established in the Charter should bereactivated for the following purposes: providing general militaryadvice to the Council and the Secretary-General, when requested; assist-ing in the arrangements for furnishing military forces to the UnitedNations; pooling relevant intelligence information for the SecurityCouncil and the Secretary-General; and monitoring arms control treatyand nonproliferation compliance. While not in the chain of commandbetween the Security Council and force commanders, it would, onrequest, assist in the development of clearer and more realistic SecurityCouncil mandates and in the translation of objectives mandated by theSecurity Council into strategic military objectives. Troop-furnishingcountries should be encouraged to participate in the Military StaffCommittee.


VII. Role of Regional Organizations

Since the end of the Cold War the Organization of American Stateshas been active in efforts to settle disputes over, or in, such places asNicaragua, Haiti, and El Salvador. Similarly, the Conference on Securityand Cooperation in Europe has established mechanisms for resolvinglocal conflicts. NATO and the Organization of African Unity are cooper-ating with the United Nations in resolving conflicts in Bosnia andRwanda. Such efforts greatly contribute to the maintenance of interna-tional peace and security and relieve the United Nations, in whole or inpart, of its burdens in various regions.

The authority of regional arrangements and agencies under ChapterVIII of the UN Charter, however, is limited to the peaceful settlement oflocal disputes. Under Article 53, with the exception of measures againstthe enemy states of World War II, "no enforcement action shall be takenunder regional arrangements or by regional agencies without the autho-rization of the Security Council."

There has been substantial debate over the scope of the terms"enforcement action," and the issue has not been authoritativelyresolved. The Security Council in any event has the power to authorizeany use under regional arrangements of military forces for any actionother than peacekeeping.

VIII. Financial

The United States should support the recommendation of theOgata/Volker Report that the UN establish an enlarged revolving fundof $400 million. This will enable the UN to fund start-up costs of severallarge missions at one time as happened in 1992 (in Cambodia,Yugoslavia, Somalia, and Mozambique), without the delay of awaitingassessed peacekeeping contributions. The United States should alsoendorse the report's recommendations for an annual peacekeeping bud-get, a regular appropriation for peace operations training, and the grant-ing of authority to the Secretary-General to commit up to 20% of the costof an operation once the Security Council has approved it. It goes with-out saying that all Members, including the U.S., should pay both regularand peacekeeping assessments in more timely fashion.

The financing of peace operations, including budgeting, funding,and assessments, should be the subject of separate attention at a spe-cial session of the General Assembly, an international conference, or asummit meeting.


IX. Protection of Peace Operations

On the initiative of New Zealand and the Ukraine, an ad hoc commit-tee of the Sixth Committee of the General Assembly was establishedwith the task of developing an international convention to protect inter-national peace operations. An unfortunate lacuna exists in this area ofinternational law. At the 49th session of the General Assembly at the endof 1994, the United States should support the adoption of a conventionthat would provide for the punishment of attacks on the life and libertyof UN personnel and of the personnel of non-governmental organiza-tions working for or with the United Nations. Such a convention shouldbe promptly signed and ratified by UN Members.

Endnotes1 The line between these categories is not clear-cut. For example, forces protect-ing the delivery of humanitarian supplies are somewhere between peacekeepingand peace enforcement.2 The UN is developing a uniform training manual for traditional peacekeep-ing. In the area of peace operations including peace enforcement the U.S. Armyhas developed and is now using a Peace Operation Manual (FM 100-23) about tobe issued in final form. Austria, Canada, and some Scandinavian countries haveled the way in peacekeeping training.

There is, incidentally, an initiative between the U.S. Army and the RussianArmy to establish some common guidelines as a framework for potentially com-bined peacekeeping operations.3 Peacekeeping forces, not mentioned in the UN Charter, are made availableby ad hoc arrangement, as are other forces today.4 Some members, instead of providing forces, may agree to provide financial,technical, or other assistance, facilities, or rights of passage. Model agreementsshould be developed for this purpose.5 Memorandum of April 19, 1994, of R. Seitz, former Chief of Strategic Plansand Policy, U.S. Army, to H.F. Shattuck. Such a force would include a brigadeheadquarters company, three infantry battalions capable of mounted (wheel orarmored personnel carriers) or dismounted peace enforcement or peacekeepingoperations, a tank battalion, an artillery battalion, a support battalion, an engi-neer company, a medical company, and a signal company. Sealift or airlift costs,costs depending on intensiveness of operations (fuel, ammunition), and costs ofhelicopter gunships, if any, are not included in this estimate.6 Parenthetically, it is time for nations to recognize better the sacrifice of thosewho put their lives on the line in the cause of peace. In the United States theyshould be rewarded no less than volunteers for die National Service Corps.

In the United States, after enlistment each enlistee could be given the oppor-tunity to express his or her desire to be assigned as a matter of preference to UNduty when and if the occasion for such duty arises. (They are, of course, alreadysubject to being ordered to UN duty.) Such duty could carry a pay incentive.Units of, say, battalion size composed of such volunteers would serve as part of


the regular armed forces. In addition, they would be trained for UN assign-ments.a UN CHARTER art. 47, para. 3.9 Any multinational command entails at least two lines of command: opera-tional command and administrative command.10 The Military Staff Committee agreed on this principle in a 1947 report at thesame time that it agreed on the principle of a force commander.11 See Military Staff Committee discussion, infra.12 It should be noted that the U.S. dead and wounded in Mogadishu, Somalia inOctober 1993 were not the result of any UN, multinational, or dual commandstructure. The U.S. Ranger force there was entirely under U.S. command.13 U.S. DEP'T OF STATE, PUB. No. 10,161, THE CLINTON ADMINISTRATION'S POLICYON REFORMING MULTILATERAL PEACE OPERATIONS (1994).14 See Hearing on the Constitutional Roles of Congress and the President in Declaringand Waging War Before the Commission on the Judiciary, 102d Cong., 1st Sess. 5,17-25 (1991) (statement of David J. Sheffer, "War Powers and the U.N. Charter:Constraints on the President's Power to Commit U.S. Armed Forces to Combatunder the Authority of the U.N. Security Council; A Study of the LegislativeHistory in the U.S. Senate of the U.N. Charter and the U.N. Participation Act of1945").

S-wiff;« it!


I : ' i

C. Recommendation and Report on the UN Response to Iraq'sInvasion of Kuwait*

Recommendation

BE IT RESOLVED, that the American Bar Association condemns theunprovoked invasion and purported annexation of the Emirate ofKuwait by armed forces of the Republic of Iraq in violation of article 2paragraph 4 of the United Nations Charter, the detention, mistreatment,and forced removal of persons living in or transiting Kuwait, and clo-sure of diplomatic and consular missions in Kuwait and unilateral with-drawal of the privileges and immunities of these missions, in violationof relevant conventions and principles of international law.

BE IT FURTHER RESOLVED, that the Association condemns thefailure of Iraq to comply with all Security Council Resolutions adoptedsince August 2,1990; strongly supports measures taken to comply withthe decisions and recommendations of the UN Security Council, andother actions taken in conformity with the Charter of the United Nationsto protect the sovereignty, independence, and territorial integrity ofstates in the region, as well as the determination of the Security Councilto ensure compliance by Iraq with the decisions of the Council; and rec-ommends that the United States, together with the other Member Statesof the United Nations cooperating with the Government of Kuwait, useall necessary means including force as well as diplomacy to restoreinternational peace and security in conformity with the principles andpurposes, and other provisions, of the Charter of the United Nations.

Report

II. Background ...

B. Iraq's Invasion, Annexation, and Spoliation of Kuwait

In the early morning local time of August 2,1990, Iraqi troops invad-ed Kuwait. Iraqi forces quickly installed a "Provisional FreeGovernment" of Kuwait, which proceeded to close all of the country'sports and airports, ban entry into and exit out of the country, impose a

* This Recommendation was adopted by the American Bar Association House ofDelegates in February 1991. Although numerous people and committees wereresponsible for drafting the Recommendation and Report, Louis B. Sohndeserves special credit for their preparation. Previously published in 25International Lawyer 800 (1991).


curfew, and cut telecommunications with the outside world. Once inKuwait, Iraqi forces pushed towards Kuwait's border with SaudiArabia. Kuwait immediately asked for United Nations assistance.

Iraq promptly annexed the territory of Kuwait in disregard of all itsinternational obligations. It has systematically brutalized the inhabitantsof Kuwait. Hospitals have been looted without regard for the sick.Parents have been tortured and executed in front of their children.Children have been tortured and executed in front of their parents.Third-country nationals residing in or transiting Kuwait or Iraq, includ-ing diplomatic and consular personnel, have similarly been brutalized inviolation of the basic humanitarian norms; many of them were heldhostage and used as human shields. Public and private property wasseized, inhabitants were expelled, and Iraqi and other foreign nationalswere settled in confiscated houses.

C. Actions Taken by the United Nations and the United States toTerminate Iraq's Aggression and Restore International Peace andSecurity

World-wide condemnation of Iraq immediately followed its unpro-voked invasion of Kuwait. On the same day as the invasion, the SecurityCouncil of the United Nations convened in emergency session. TheUnited States was joined by the Soviet Union, China, Great Britain,France, and others in a 14-0 Security Council vote to condemn Iraq, andto demand its immediate and unconditional withdrawal from Kuwait.

Following requests from the Emir of Kuwait and King Fahd of SaudiArabia, President Bush deployed United States forces to the Gulf toassist in the defense of Saudi Arabia and other countries in the GulfRegion threatened by the Iraqi action, and provided support and assis-tance to the legitimate Government of Kuwait. In the following days andweeks, numerous other countries, including Great Britain, France,Canada, Australia, and others sent forces of their own to the area to con-tribute to this effort. A truly multinational defense force was thus estab-lished.

The United States has engaged in intensive efforts from the outset toresolve this crisis peacefully through diplomatic and other means shortof use of force. All means provided for in Article 33 of the Charter areavailable for that purpose, provided Iraq withdraws from Kuwait.United States efforts included multilateral diplomacy at the UnitedNations as well as bilateral diplomacy armed at the creation of a globalalliance to isolate Iraq from the rest of the world; the adoption of com-prehensive economic sanctions and the related imposition of a navalinterception operation; and the establishment of economic assistance


and other forms of relief for countries whose citizens are most affectedby the deleterious economic effect of the embargo.

The use of the United Nations as a vehicle for resolving this crisishas been critical. During the past four months, the Security Council in anunprecedented burst of activity has adopted ten resolutions respondingto the invasion and occupation by Iraq.

• On August 2 the Security Council condemned the invasion ofKuwait and called for Iraq's immediate and unconditional with-drawal.

• On August 6 the Security Council affirmed the inherent right of indi-vidual and collective self-defense in response to the Iraqi invasionand occupation and imposed a series of broad economic sanctionsagainst Iraq.

• On August 9 the Security Council declared the alleged annexation ofKuwait by Iraq "null and void" and declared "its determination torestore the authority of the legitimate Government of Kuwait."

• On August 18 the Security Council called for the immediate releaseof foreign nationals from Iraq and occupied Kuwait.

• On August 25 the Security Council authorized the use of force tointercept all maritime shipping going to or coming from Iraq orKuwait carrying goods or commodities in violation of the economicsanctions.

• On September 12 the Security Council established guidelines for theprovision of foodstuffs in humanitarian circumstances.

• On September 16 the Security Council condemned the aggressiveacts perpetrated by Iraq against diplomatic premises and personnelin Kuwait and demanded that Iraq immediately protect the safetyand well being of diplomatic and consular personnel and premises.

• On September 24 the Security Council authorized examination bythe United Nations of requests for economic assistance by thirdstates affected by the sanctions.

• On September 25 the Security Council strengthened the economicsanctions by clarifying restrictions with regard to aircraft flying toand from Iraq and Kuwait, and provided additional sanctionsagainst Iraqi vessels.

• On October 29 the Security Council demanded that Iraq respect itsobligations under international law towards Kuwait and third-coun-try nationals, invited states to report on violations of internationallaw committed by Iraq, and invited states to collect information onclaims against Iraq for losses or injuries resulting from the invasionand illegal occupation of Kuwait.

• On November 29 the Security Council, in resolution 678, authorizedMember States cooperating with the Government of Kuwait, unless

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Iraq fully implements the previous resolutions of the Council byJanuary 15,1991, to use all necessary means to implement these res-olutions and to restore international peace and security in the area.

III. Recommended Action

It is recommended that the American Bar Association place onrecord its views regarding the invasion and occupation of Kuwait byIraq and the actions of the Member States and the United Nations inresponse to that invasion and occupation. In doing so, the Associationwould encourage and support an understanding of, and respect for, therule of law in the relations of states, and particularly the need for statesto conform their conduct to the principles and purposes, and other pro-visions, of the United Nations Charter. The [Recommendation] accom-plishes the following three purposes: (1) condemns the unlawful actionsof Iraq; (2) expresses support for the actions of the United Nations inresponse to Iraq's aggression, and for the actions taken by the UnitedStates Government immediately following the invasion and subsequent-ly to comply with the decisions and recommendations of the SecurityCouncil relating to this matter; and (3) encourages further action by theUnited Nations and by the United States to obtain Iraqi compliance withthe decisions of the Security Council consistent with the principles andpurposes, and other provisions, of the Charter.

IV. Human Rights

The United Nations Charter sets out fundamental human rightsprinciples, urging respect for and observance of "human rights ... with-out distinction as to race, sex, language, or religion," The UniversalDeclaration of Human Rights, adopted without dissent by the GeneralAssembly as a resolution in 1948, is an authoritative amplification ofCharter norms. Principles in the Universal Declaration have been furtherdeveloped and codified in treaty form in the International Covenant onEconomic, Social and Cultural Rights and the International Covenant onCivil and Political Rights. Other treaties drafted in the United Nationsestablish detailed obligations with respect to specific topics, such asgenocide, torture, slavery, apartheid, the rights of women, the rights ofchildren, rights during armed conflicts, racial discrimination, the rightsof refugees, and the rights of stateless persons. Many of these conven-tions have been widely accepted.

Developing effective procedures in the United Nations to implementinternational human rights protections has been more difficult thandeveloping the substantive human rights norms themselves. The UNGeneral Assembly responded to concerns about the effectiveness of theUnited Nations in this area by creating the post of UN HighCommissioner for Human Rights in December 1993. The firstCommissioner, who may take steps to publicize and respond to humanrights violations without having to wait for approval from political bod-ies of the United Nations, assumed his duties in April 1994.

The first Report in this section devotes considerable attention to thisnew post of High Commissioner for Human Rights, as well as examin-ing several other ways to improve the effectiveness of the UnitedNations in promoting democracy, protecting minority rights, andaddressing other human rights abuses. This Report also notes that theUnited States currently is party to relatively few of the most widelyaccepted human rights treaties, and urges U.S. ratification of more ofthose treaties. Such a step, the Report suggests, would enable the UnitedStates more effectively to focus international attention on human rightsviolations in other countries, and would allow the United States to exer-

61


cise positive influence on UN human rights institutions and policies.The American Bar Association has adopted many other resolutions

related to human rights issues. As summarized in Appendix D, the ABAhas supported compliance with the human rights provisions of theUniversal Declaration of Human Rights and, subject to specified reser-vations, understandings, and declarations, has endorsed U.S. acceptanceof the UN Convention on the Prevention and Punishment of the Crimeof Genocide; the UN Convention on the Elimination of All Forms ofRacial Discrimination; the Covenant on Economic, Social and CulturalRights; the Covenant on Civil and Political Rights; the UN Conventionon the Elimination of All Forms of Discrimination Against Women; theUN Convention Against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment; and the UN Convention on theRights of the Child. In February 1996, following the UN Fourth WorldConference on Women, the ABA approved three resolutions relating towomen's rights. The first of these addresses the role of law in promotingequality, equal protection, and access to opportunities and benefits forwomen, the second reaffirms support for U.S. acceptance of theConvention on the Elimination of All Forms of Discrimination AgainstWomen, and the third urges measures to improve the effectiveness ofUN mechanisms concerned with the roles and rights of women.

Human Rights 63

A. Recommendation and Report on the International Protection ofHuman Rights*

Recommendation

BE IT RESOLVED, that the American Bar Association recommendsthat the U.S. Government take the following steps to advance the pro-motion and observance of international human rights:

A. Strongly support the recently created post of High Commissionerfor Human Rights.• The High Commissioner should oversee and direct the

work of all UN agencies concerned with human rights;should be able to convene sessions of the Commissionon Human Rights to address emergencies; should inte-grate human rights obligations into UN peacekeepingand humanitarian operations; and should have theauthority to raise human rights concerns in theSecurity Council.

• The High Commissioner should be based at UN head-quarters in New York so as to have ready access to theGeneral Assembly and the Security Council andshould be provided with adequate staff and resourcesto carry out the High Commissioner's responsibilities.

• To fulfill its potential, the office of the HighCommissioner must have an adequate staff that couldbe stationed around the world to help victims, provideadvisory services, give technical assistance, observedevelopments, mediate disputes, and express concernabout violations.

B. Support, in addition, the establishment of special regionalCommissioners for the protection of minority rights in regionsin which such Commissioners do not exist at present.

C. Help to increase UN resources for the promotion of democracyand the strengthening of the rule of law.

* This Recommendation was adopted by the American Bar Association House ofDelegates in August 1994. The Recommendation and its accompanying Reportare one of a series of five developed by the Working Group on Improving theEffectiveness of the United Nations, chaired by Louis B. Sohn and Jay M.Vogelson and directed by Kathryn S. Mack. Members of the Working Group'sTask Force on International Human Rights, who prepared this Recommendationand Report, were Louis B. Sohn (Chair), Patricia A. Bloodgood (Rapporteur),Richard B. Bilder, Thomas Carothers, Roberta Cohen, Hurst Harnum, Peter Spiro,and David Weissbrodt. Previously published in 29 International Lawyer 305 (1995).


D.

E.

F.

G.

Expedite the ratification of important UN conventions relatingto the protection of human rights and enact legislation thatwould make it possible to remove most of the reservations tovarious human rights treaties that have already been ratified,such as the International Covenant on Civil and Political Rights.

Strongly support the appointment of women to senior positionsin the United Nations system.

Support the strengthening of the system of Special Rapporteursand Working Groups by providing them with sufficientresources and staff to carry out their assignments and allowingthem to investigate human rights abuses within their jurisdic-tion on their own initiative.

Work to more appropriately institutionalize the relationshipbetween non-governmental organizations (NGOs) and the UNsystem so as better to reflect and utilize the full potential ofNGOs in norm creation and in more systematic scrutiny of statecompliance, and to protect NGOs providing humanitarian assis-tance.

Report

I. Reforming the UN's Work in Human Rights Through the HighCommissioner for Human Rights

The UN's work for human rights should become more staff-driven,less political, more responsive to the expertise of bodies established tomonitor the implementation of human rights treaties, and should be bet-ter funded. It also should become more capable of handling emergen-cies. In recent years, some innovative steps have been introduced to dealwith emergencies. Special sessions of the UN Commission on HumanRights have been called; on-site monitors have been deployed; andhumanitarian action has been authorized by the Security Council. Thesemeasures will need to be strengthened and streamlined and more con-sistently applied. This vision for improving the effectiveness of the UNin the area of human rights may take years to accomplish but should beseen as a long-term objective and a way of encouraging incrementalsteps towards that objective.

One significant step in improving the effectiveness of the UN in thearea of human rights took place in December 1993 when the UN GeneralAssembly established the post of the High Commissioner for Human

Human Rights 65

Rights. Although it may take years for the High Commissioner to reformthe UN's work in the field of human rights, the creation of the post ofHigh Commissioner should prompt rethinking of how the UN's effortsought eventually to be restructured.

The most important innovation in the creation of this post is that theCommissioner can act without previous authorization by the politicalbodies of the UN. Most of the UN's previous efforts required authoriza-tion by the General Assembly, the Security Council, the Economic andSocial Council (ECOSOC), the Commission on Human Rights, or otherbodies. The governments represented on those bodies have beenincreasingly willing to respond to gross violations of human rights buthave been unable to develop the consensus required for action on manyserious problems. The new High Commissioner will be able to reactmore promptly and without awaiting political approval.

In order to fulfill its potential, however, the office of the HighCommissioner must have an adequate staff . Indeed, the HighCommissioner should not only be responsible for coordinating the workof the Centre for Human Rights in Geneva but should also be the centralfocus for all of the diverse activities of the UN related to human rights.The predicted budgetary implications for the High Commissioner inDecember 1993 called for a staff of only two in Geneva and two in NewYork. The Centre of Human Rights presently has only about 150employees, including clerical staff. While the High Commissioner may,on occasion, be able to draw upon Centre staff, he will have to build asufficient staff of his own to implement his mandate effectively. Many ofthis staff should be stationed around the world to help victims, provideadvisory services, give technical assistance, observe developments,mediate disputes, and express concern about violations. The operationalnature of UN agencies like the UN High Commissioner for Refugees andthe UN Development Programme could serve as models. It will taketime and considerable resources to build the staff needed by the HighCommissioner for Human Rights to enable the High Commissioner tocarry out UN human rights objectives effectively.

The High Commissioner should coordinate the work of the SpecialRapporteurs and Working Groups. At present, ten kinds of humanrights concerns have been designated for investigation by SpecialRapporteurs or Working Groups reporting to the Human RightsCommission. They are: enforced or involuntary disappearances; arbi-trary detention; internal displacement; summary or arbitrary execution;torture; religious intolerance; mercenarism; sale of children; indepen-dence of the judiciary; and violence against women.

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1

II. Strengthening Mechanisms for Protection of Minority Rights

The upsurge in ethnic conflicts and disputes over the scope ofminority rights in recent years demands a response from the UnitedNations. Adoption of the Declaration on the Rights of Minorities by theGeneral Assembly in 1992 will have little meaning if it is not supple-mented by an appropriate monitoring mechanism. Given the sensitiveand complex nature of many issues related to minority rights, it ispreferable that they be addressed by an expert rather than a politicalbody.

This was precisely the role envisaged by the UN Commission onHuman Rights when it created the Sub-Commission on Prevention ofDiscrimination and Protection of Minorities in 1946. It is time to reinvig-orate the Sub-Commission's activities with respect to minorities, both byexpanding its research studies and by appointing a pre-sessional work-ing group to report regularly on the progress achieved in implementingthe 1992 Declaration. Ample precedent exists for such a working group,which would be similar to the Working Group on IndigenousPopulations. The expertise of Sub-Commission members could con-tribute by establishing a forum for monitoring potential conflicts andanalyzing information in a more positive way than might be possible inan intergovernmental body such as the Commission on Human Rights,and it would ensure that the Declaration on the Rights of Minoritiesbecomes more than just a piece of paper.

To assist the Sub-Commission in monitoring the treatment ofminorities, special regional Commissioners for the protection of minori-ties should be appointed similar to the High Commissioner on NationalMinorities established by the Conference on Security and Cooperation inEurope (CSCE).

III. Focusing UN Resources on Democracy Promotion

In the past several years the United Nations has become activelyinvolved in the area of democracy promotion. The focus of its activitiesin this field to date has been electoral assistance. During 1992 and 1993,the United Nations carried out more than fifty different electoral assis-tance projects. The UN's electoral work has in a few cases consisted ofcomprehensive assistance projects in which the UN is a primary actor inorganizing and carrying out national elections in a country, such as inHaiti in 1990 and Cambodia in 1993. In most cases, the electoral work ismore limited and consists of one or more of the following specific com-ponents: needs assessment and/ or technical assistance concerning elec-toral administration, assistance in the drafting of electoral laws, or elec-tion observation and reporting. In the major cases of comprehensive

Human Rights 67

electoral assistance, the UN usually acts on a basis of a specific GeneralAssembly or Security Council resolution. In the more frequent and morelimited instances of electoral assistance, the UN is usually responding toa request for assistance from the country concerned.

The primary way in which the UN's electoral activities could bestrengthened would be to increase the financial resources available tothe Electoral Assistance Unit. The Unit is quite small (approximately adozen people) and has been receiving requests for assistance in excess ofits capacity to respond.

In addition, the Centre for Human Rights and the ElectoralAssistance Unit should work together to articulate standards for freeand fair elections and to promote the formal acceptance of such stan-dards by UN member states. They should also work together to ensurethat a full range of human rights concerns are factored into the UN'swork on elections.

Electoral assistance is an important form of democracy assistancebut clearly not the only form. Democracy involves much more than theholding of free and fair elections. Another broad area of assistance pro-grams to foster democracy are programs aimed at strengthening thebasis of governing institutions of democracy — programs of technicalassistance and training for courts, government ministries, and parlia-ments in countries in transition to democracy — as well as strengtheningof the rule of law. The UN, like the World Bank, has approached thisarea through the concept of governance, or good governance, ratherthan democracy. The United Nations Development Program (UNDP)has begun to work in this area, having adopted good governance as oneof its program objectives in 1992. This area of assistance is somewhatremoved from human rights promotion, although the promotion ofdemocracy and the rule of law may clearly have implications for thehuman rights performance of any particular country.

IV. Broadening Acceptance of Human Rights Conventions

One important step the U.S. can take to strengthen the effectivenessof the UN is to broaden its own acceptance of UN and other humanrights and humanitarian conventions.

The protection and promotion of human rights is one of the UN'smajor purposes and has become one of its leading priorities. While theU.S. has been in the forefront of efforts to draft international humanrights instruments and establish an effective international human rightssystem, it has been noticeably slow in ratifying a number of the mostsignificant and widely-adopted human rights conventions. The interna-tional community has long been critical of U.S. reluctance to acceptinternational human rights obligations which most of its friends and

If68 The United Nations at 50

allies — in fact, almost all other developed and democratic nations —have accepted. Indeed, our poor record in this respect is equalled onlyby some of the world's most repressive states.

At the present time, the U.S. is party to only the following interna-tional human rights instruments: the Slavery Convention of 1926 and theProtocol amending that Convention; the Supplementary Convention onthe Abolition of Slavery, the Slave Trade and Institutions and PracticesSimilar to Slavery; the UN Convention on Political Rights of Women; theInter-American Convention on the Granting of Political Rights toWomen; the four Geneva Conventions of 1949 relating to armed conflict;the Protocol Relating to the Status of Refugees; the GenocideConvention; and the Covenant on Civil and Political Rights. Of these,the Genocide Convention and UN Civil and Political Covenant were rat-ified by the U.S. only very recently and then only subject to a long list ofreservations, declarations, and understandings which significantly limitcertain U.S. obligations under these treaties.

The U.S. has still not ratified a number of the most important andbroadly accepted human rights instruments. Four of these — theConvention on the Elimination of All Forms of Racial Discrimination,the Convention on the Elimination of All Forms of DiscriminationAgainst Women, the Covenant on Economic, Social and Cultural Rights,and the American Convention on Human Rights — have been signed bythe U.S. and submitted to the U.S. Senate, but have not as yet been actedupon. Prompt ratification of these treaties by the U.S. is necessary. Theratification of the Convention against Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment has received the consent of theU.S. Senate, but the necessary implementing legislation has not yet beenenacted, preventing the deposit of the ratification document. Otherimportant treaties — such as the 1977 Protocols I and II Additional to theGeneva Convention of 1949, the Optional Protocol to the Civil andPolitical Covenant, and the Convention on the Rights of the Child —have either not yet been signed by the U.S. or not yet submitted to theSenate for ratification.

With the end of the Cold War and increased prospects for a moreeffective UN role in international human rights efforts, it is well pasttime for the U.S. to commit itself more unequivocally to this effort bybroadening its acceptance of these international human rights instru-ments. The U.S. would be in a stronger position to persuade othernations to accept effective international human rights standards andimplementation procedures if it accepts them itself. Such broadenedacceptance could consist not only of U.S. ratification of additionalimportant human rights treaties but also enactment of legislation thatwould make it possible to remove most of the reservations to some nowratified treaties, such as the Civil and Political Covenant.

Human Rights 69

Such broadened acceptance of human rights conventions wouldimpose few new obligations and little real risk for the U.S. To the con-trary, it could have many prospective benefits, including:

• Demonstrating to the international community, as well as to ourown citizens, our strong national commitment to the goal of protect-ing and promoting international human rights, thus relieving ourcountry of charges of hypocrisy in this respect.

• Permitting us to support more effectively the UN and to work withlike-minded nations in promoting human rights and focusing inter-national attention on human rights deficiencies or violations in othercountries.

• Allowing us to participate more effectively in the processes designedto monitor the implementation of various conventions and thus helpshape relevant UN and other human rights institutions and policiesin ways we believe most appropriate, instead of abdicating suchinfluence to others.

• Through our leadership in this respect, encouraging other countriesto broaden their own acceptance of international human rights obli-gations and to participate more meaningfully in international humanrights efforts.

• More generally, signalling a renewed U.S. engagement to contributefully and seriously in building a more effective United Nations.

V. Increasing the Role of Nongovernmental Organizations

Nongovernmental organizations (NGOs) have played a critical rolein the development of contemporary human rights norms, both as policyadvocates and as watchdog groups. At the same time as the number andtype of NGOs have multiplied far beyond a few pathbreaking but nowwell-established groups (such as Amnesty International), NGO partici-pation in international institutions is hampered by inadequate status,anachronistic procedures, and insufficient accommodations. The rela-tionship between NGOs and the United Nations system should be moreappropriately institutionalized so as better to reflect and exploit the fullpotential of NGOs in norm creation and more systematic scrutiny ofstate compliance.

Institutional reforms could include:

• Enhanced rights of participation in standard-setting institutions.More than 1500 NGOs representing all regions (including substan-tial numbers from outside the West) and several non-territorialgroupings (e.g., women, indigenous peoples, the disabled) attendedthe 1993 World Conference on Human Rights at Vienna. Although

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NGOs undoubtedly affected conference results, they were excludedfrom drafting sessions due to adamant opposition from African andAsian delegations, led by China. An intergovernmental workinggroup has been established by ECOSOC to consider changes to therights and privileges of consultative status with UN bodies, includ-ing ad hoc world conferences. This group should recommend thatNGO representatives be afforded greater uniform rights in the deci-sion-making process, to approach those rights afforded national del-egations.Streamlined procedures for participating in international fact-find-ing and compliance regimes. NGO attendance in the annual sessionof the Commission on Human Rights and of treaty committees hasalso greatly increased. These bodies, however, have not efficientlyavailed themselves of the informational resources presented byNGO participants. NGOs typically have rights to circulate writtenstatements and address plenary sessions, but these voices have tend-ed to be lost in a cacophony. Papers are left unread and speeches aremade to empty halls. These institutions should consider proceduresfor information gathering more along the lines of Congressionalhearings in the U.S., in which the relevant NGOs could be invited topanel consideration of particular countries or subject areas. This andother improved mechanisms for obtaining and processing informa-tion from NGO sources should be developed by more efficientlychanneling information to both decision makers and to the public atlarge.Efforts to ensure protection of NGOs operating at the local level.Local/indigenious human rights NGOs, as groups with on-the-ground expertise, have historically formed the nucleus of efforts toexpose particular human rights violations at the international level.As a result, such groups (and their leaders) become a natural targetof repressive regimes. The UN should more systematically highlightthe importance of these groups to the protection of human rights bystressing the right to freedom of association as provided in theCovenant on Civil and Political Rights and other international instru-ments. The Subcommission on the Prevention of Discrimination andProtection of Minorities should prepare a report, perhaps on anannual basis, on the harassment and intimidation of NGOs.

V. UN Specialized Agencies

The programs, studies, and standard-setting activities of the UNspecialized agencies in economic, social, cultural, educational, health,and related fields have had profound effects. Each specialized agencywas established by its own intergovernmental agreement, some ofwhich predate the United Nations itself. The specialized agencies havebecome part of the UN system, however, pursuant to relationship agree-ments that have been entered into as contemplated in Articles 57 and 63of the UN Charter. The United States is currently a member of all theagencies examined in this section, with the exception of the UnitedNations Educational, Cultural and Scientific Organization (UNESCO).

The Working Group on United Nations Specialized Agencies andthe International Atomic Energy Agency prepared the Recommen-dations and Reports in this section in 1995, in order to assess the activi-ties of several agencies and suggest ways to improve their effectiveness.The first Report reviews the activities of the World Health Organization(WHO), which has gained a reputation for scientific excellence in itsefforts to eradicate diseases, set technical guidelines, and provide gov-ernments with advice and assistance on a wide variety of medical andpublic health matters. The Recommendation urges continued strongsupport for WHO standard setting, model legislation, regulations, andenforcement measures, all of which could help to improve public health.The next Report carefully analyzes the international financing and eco-nomic development activities of the International Monetary Fund (IMF)and other entities of the World Bank Group. The Recommendation callsfor strong U.S. support of these organizations, reexamination of theIMF's role in relation to capital movements and markets, and increasedattention to legal infrastructure. The Working Group also evaluated thework of the International Labor Organization (ILO) in developingtreaties that set standards for workers' safety and workers' rights, and inmonitoring ratified treaties; the ILO Report urges U.S. participation inILO conventions and activities, for reasons of international policy andeconomic self-interest. The Recommendation on UNESCO urges theUnited States, which withdrew from the organization in 1984, to rejoin

71


it The accompanying Report reviews UNESCO's efforts to promoteinternational cooperation through education, science, and culture, andevaluates the extensive changes in the organization's management, andin its policies towards freedom of the press, that have occurred since thelate 1980s. The final Report on the UN specialized agencies examines theFood and Agriculture Organization (FAO) and its efforts to educate peo-ple about nutrition, food, and agriculture, to develop food safety stan-dards and international agreements, and to improve ways to distributeand produce food. The FAO Recommendation, while urging continuedU.S. support for the FAO, calls for consideration of changes in its struc-ture and for improved coordination between the FAO and the organiza-tions with which it works closely.

This section also contains a Recommendation and Report on thework of the International Atomic Energy Agency (IAEA). The IAEA,although not one of the UN specialized agencies, is tied to the UnitedNations through a relationship agreement that is much like those of thespecialized agencies. The United Nations works closely with the IAEAin its safeguards operations, which seek to insure that countries notdivert to nuclear weapons any nuclear materials that are supposed to bedevoted to peaceful purposes. The Recommendation urges the UnitedStates to support specific steps to improve the effectiveness of theIAEA's safeguards system. The Recommendation and Report also raisesthe need to consider whether the IAEA's various activities, whichinclude the promotion of peaceful uses of nuclear energy and the devel-opment of nuclear safety standards as well as safeguards operations,should be separated.

UN Specialized Agencies 73

A. Recommendation and Report on the World Health Organization*

Recommendation

BE IT RESOLVED, that the American Bar Association recommendsthat the Government of the United States continue to give its strong sup-port to the World Health Organization (WHO); and

BE IT FURTHER RESOLVED, that the American Bar Associationrecommends that the Government of the United States support moreeffective implementation of public health improvements throughincreased WHO standard setting and development of elements of modellegislation, regulations, and enforcement measures, adaptable to coun-tries' individual needs.

Report

I. Introduction and Background ...

This report and recommendation address the work of the WorldHealth Organization ("WHO" or "Organization"), a specialized agencyof the United Nations1 established by a treaty separate from the UnitedNations Charter. WHO is organized in Regional and Country offices; itsbudget, structure, and policy are governed by the World HealthAssembly ("Health Assembly") of representatives from each MemberState, which meets once a year. The United States' delegation includesrepresentatives of both the United States State Department and theDepartment of Health and Human Services. The Executive Board("Board") is composed of thirty-two technically qualified persons, desig-nated by Member States, who are named by the Health Assembly. ADirector General is appointed by the Health Assembly on the nomina-tion of the Board and is the chief technical and administrative officer. Itsbudget in draft is sent to the Administrative Coordination Committee ofthe UN, but no recommendations are received from the GeneralAssembly or its designee as contemplated in the relationship agreementbetween WHO and the UN.

* This Recommendation was adopted by the American Bar Association Houseof Delegates in August 1995. The Recommendation and its accompanyingReport are one of a series of six related to selected specialized agencies of theUnited Nations and the International Atomic Energy Agency developed by theInternational Institutions Committee of the Section of International Law andPractice, through the Committee's Working Group on United NationsSpecialized Agencies and the IAEA. Members of the Working Group's TaskForce on the World Health Organization, responsible for developing thisRecommendation and Report, were H. Francis Shattuck, Jr. (Chair), Lane Porter(Rapporteur), Susan Connor, William J. Curran, and Ruth Roemer.


A, WHO Objective and Functions

The WHO Constitution came into force in 1948.2 The parties to theWHO Constitution declared several principles as "basic to the happi-ness, harmonious relations and security of all peoples/' including thathealth is "a state of complete physical, mental and social well being andnot merely the absence of disease or infirmity."

The stated objective of the Organization3 is the attainment by allpeople of the highest possible level of health. Its functions4 of particularrelevance5 are:

(a) to act as the directing and co-ordinating authority oninternational health work;...

(b) to furnish appropriate technical assistance ... uponrequest or acceptance of Governments;

(c) to stimulate and advance work to eradicate epidemic,endemic and other diseases;

(d) to propose conventions, agreements and regulations,and make recommendations with respect to internationalhealth matters;

(e) to provide information, counsel and assistance in thefield of health; and

(f) to develop, establish and promote international stan-dards with respect to food, biological, pharmaceutical and sim-ilar products.6

A significant power of the Health Assembly is its ability to adoptbinding regulations in a circumscribed area: on sanitary requirementsand other procedures designed to prevent the international spread ofdisease; nomenclatures; standards with respect to the safety, purity andpotency, and advertising of biological, pharmaceutical, and similarproducts moving in international commerce.7'8

The Health Assembly also has authority to adopt conventions oragreements which become binding upon ratification.9

B. Achievements

1. The First Five Decades

WHO's accomplishments since its origin in 1948 have been impres-sive. In the first decade, WHO focused on control of specific infectiousdiseases, i.e., malaria, yaws, tuberculosis, and venereal infections. In thesecond decade, WHO concentrated on worldwide training of new, effec-tive medical assistants. In the third decade, WHO succeeded in four spe-cific areas, i.e.: (1) smallpox eradication from the earth; (2) an expandedprogram of immunization against six diseases (diphtheria, tetanus,

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whooping cough, measles, poliomyelitis, and tuberculosis); (3) imple-mentation of an "essential drugs" policy; and (4) the control of infantdiarrhea through oral rehydration therapy, hi the fourth decade WHOinitiated primary health care (including public sanitation measures) asthe path to a goal of universal health, as provided in its Constitution. Inthe fifth decade WHO leads in coordinating control and treatment of theHIV/AIDS pandemic through the Global Programme on AIDS. (Some ofthese efforts by necessity have been funded by voluntary "extrabud-getary" contributions from WHO Member States.) International HealthRegulations10 have been adopted by the Health Assembly, requiring, inpart, official notification of diseases (plague, cholera, and yellowfever).11 No other regulations have yet been adopted.12

2. Technical Standards

Over the past forty-seven years, WHO has earned a reputation for sci-entific excellence, by setting authoritative technical standards and guide-lines and providing technical advice and assistance to governments on awide range of medical and public health matters.13 These are based on thework of WHO expert committees14 and WHO study groups15 whosereports are submitted to the Board and published in a technical series.More than 800 reports have been published16 and reflect the consensusreached by groups of experts. These reports are given great weight byhealth and science professionals worldwide as invaluable advisory refer-ences. Specific subjects include17: drug dependence; aging and workingcapacity; new areas for research concerning cardiovascular disease risk fac-tors; prevention of diabetes mellitus; schistosomiasis control; evaluation ofcertain food additives and contaminants; implementation of the globalmalaria control strategy; biological standardization; and nursing trainingand practice. The results of WHO scientific groups18 are also published.

3. International Health Regulations

WHO has chosen to exercise sparingly its powers of adopting bindingregulations or standards. The International Health Regulations, historical-ly of great importance for quarantines and navigational hygiene, are nowof less importance in modern-day travel, but are nonetheless kept current.

4. International Classification of Diseases

A much-heralded accomplishment has been the adoption of theInternational Classification of Diseases (now in its 10th version) useduniversally as the common language for disease diagnosis, as well asdefinitions related to the collection of morbidity and mortality statistics,which are the building blocks of public health.


WHO's forays into marketing standards have been limited and, tosome extent, controversial, as they have involved areas of extensivecommercial wealth: examples are the International Code of Marketing ofBreast-milk Substitutes; the Tobacco or Health Programme; and theAction Programme on Essential Drugs. Those topics were selectedbecause of the very high perceived impact on public health in the lessdeveloped world. WHO has remained generally shy of venturing intomore politically charged topics such as reproductive issues, and,although standards have been adopted as guidelines for pharmaceuticalmanufacturing, purity, labelling, etc., no effort has been made to raisesuch standards to the level of international controls. The long-term trendhas been away from specific problems to development and strengthen-ing of national health systems.

5. Coordination Efforts

Coordination with other specialized agencies has been formallyinstituted by WHO in virtually every field, with varying results. WHOcollaborates closely with FAO [the Food and Agriculture Organization],for instance, in the establishment of the Codex Alimentarius, a foodpurity code used as a standard in many less developed countries, as wellas with the International Labour Organization in setting occupationalhealth and safety standards. Coordination has also been strong, forinstance, in the successful efforts to eradicate polio and smallpox, and toincrease immunizations.

WHO has led in the establishment and effective coordination withinthe United Nations system of a joint and cosponsored United NationsProgram on HIV/AIDS ("UN AIDS Program"). It is a major currentdevelopment designed to deal more effectively with the economic,social, cultural, and medical aspects and its impact on persons livingwith AIDS. The six participating organizations of the UN AIDS Programare UNDP, UNESCO, UNFPA, UNICEF, WHO, and the World Bank."The UN AIDS Program represents an internationally coordinatedresponse. Its objectives20 are consistent with the ABA resolution onAIDS, adopted in August 1989,21 calling for effective coordination ofinternational AIDS programs.

6. Emergency and Humanitarian Relief

WHO has -been active in providing emergency and humanitarianrelief actions (e.g., Somalia, former Yugoslavia) in cooperation with otherbodies in the United Nations' system, pursuant to General Assemblyresolution 46/182 on strengthening the coordination of humanitarianemergency assistance of the United Nations. In former Yugoslavia,


WHO: (a) assessed health needs and advised health authorities andother UN organizations and nongovernmental organizations on thenutritional content of food supplies; (b) supported health care institu-tions with medical and other supplies; and (c) assisted in the physicaland psychological rehabilitation of war victims. In Somalia, the spreadof cholera was controlled in 1994 with the assistance of a team of WHOstaff.

WHO, through its Regional and Country offices, has established acommunications network, in conjunction with UNDRO, the UN's spe-cialized organization for disaster relief, and has worked effectively, par-ticularly at the Regional and sub-regional level, to coordinate the gener-ous donations from multiple sources in earthquakes in Latin America.

Health Assembly resolutions22 have strengthened emergency andhumanitarian relief actions involving the health needs of refugees andother displaced persons. Pursuant to WHA47.29 (12 May 1994) on coor-dinated relief efforts for Rwandan refugees and internally displaced per-sons, WHO conducted epidemiological assessments, delivered emer-gency health supplies, and controlled cholera, dysentery, and meningi-tis. These actions appear consistent with the ABA resolution on refugeehealth needs, adopted in August 1991.23

C. Criticism

Compared to other agencies in the United Nations system, WHOhas been subject to little criticism, perhaps because of the essentiallyapolitical character that it has conscientiously sought to maintain. Inrecent years the few criticisms by some24 have been directed to lack of acoherent strategy, which may reflect the dramatically disparate levels ofhealth throughout the world. Some critics assert that WHO does notoperate according to its own definition of health but remains dominatedby a biomedical physically based concept of health in terms of disease,disability, and premature death, virtually ignoring the mental and socialdimensions of health.25 The emphasis on primary care and increasedawareness of poor health as a reflection of poverty throughout the UNsystem would seem to belie this criticism.

WHO, as a specialized agency, established by treaty, operates underits own policies. For example, the financial regulations of WHO providethat external auditors are to be the Auditor General of a MemberGovernment and be appointed, and removed, only by the HealthAssembly.26

A most disturbing recent criticism would appear to indicate thatWHO may have lowered its guard against the "politicization" that hasaffected some of the less technically-based UN agencies. Commentatorshave referred also to allegations that WHO funds had been misused,


through letting of contracts to Board members prior to the last reelectionof the Director General. It is reported that an external audit examiningthese allegations criticized WHO for shortcomings in management, andrecommended changes in the regulations governing the letting of con-tracts to Board members.27 This, of course, must at a minimum be close-ly monitored.

D, Internal Changes

The Executive Board has been working to make changes to improveeffectiveness at WHO. It established a working group28 in May 1992 tocarry out a general process of reorganization. This group made forty-sevenrecommendations which were adopted by the Board,29 of which eighteenhad reportedly been implemented by January 1995. Board recommenda-tion 31 is to ensure that WHO be active in its response to the UN structuraland operating reforms supporting inter-agency coordination in the UnitedNations' system and health and development programs.30 Board recom-mendation 39 is to improve personnel procedures, to ensure that technicalcompetence is the primary basis for the selection and recruitment of long-and short-term staff.31 Both Recommendations 31 and 39 remain "underreview."32 We support implementation of these recommendations.

II. The Legislative Role of WHO

A. Need for WHO to Assist Member States to Update and ReviseHealth Legislation Through On-Site Technical Assistance

Because of the specialized nature of public health law and regula-tion, grounded in science and limited by resources, WHO has been theprimary source of both comparative health legislative information andexpert consultants for less developed countries. WHO has long recog-nized the need for public health laws, and their effective implementa-tion, and makes available texts and summaries of health legislation ofthe world in its unique International Digest of Health Legislation, publishedquarterly in English and French. Particularly as countries move forwardin the process of development, the need for more sophisticated regulato-ry schemes increases.33' ^ 35 The overwhelming crowding and urbaniza-tion of the globe has also increased the need for effective public healthenforcement of sanitary and other health requirements. We supportHealth Assembly resolution WHA30.44, adopted in 1977, whichrequests the Director General to strengthen its health legislation pro-gram and to assist Member States upon their request to develop appro-priate health legislation adapted to their individual needs, and to maketechnical cooperation in health legislation and its administration moreeffective, particularly in developing countries.36'37


There is a current need for WHO action pursuant to resolutionWHA30.44, and WHO should ensure its implementation. The UnitedStates should support implementation of WHO proposals38 to providesupport to countries in drafting new or revised health legislation, andfor cooperation with countries in their efforts to create public awarenessof health laws and regulations.

In evaluating the world health situation and its WHO programs onhealth during the period 1985 to 1990, WHO stated that legislation is oneof the key mechanisms for supporting health policies and programs andfor regulating health system activities. WHO's program of "health forall" cannot be achieved in the absence of an up-to-date, enlightened, andrealistic framework of laws, regulations, and other instruments thatestablish the responsibilities of government, other national and subna-tional authorities, members of the health professions, and other elementsof society concerned with health development.39

B. Examine Need for WHO Regulations or Conventions

In addition, consideration should be given by the Government of theUnited States to recommending development and adoption by theHealth Assembly of WHO regulations or conventions where: (a) a majorworldwide public health problem exists; (b) there is consensus that regu-lation is required; (c) there are international consequences across bor-ders; and (d) WHO regulations or conventions will significantly raise thelevel of international public health. For instance, any WHO regulation orconvention on environmental health should be grounded in actions theeffect of which is international, that is, consequences adversely affectinghealth across national boundaries.

HI. Conclusion

By following the measures recommended, the Government of theUnited States should support WHO in exploring means of more effec-tive implementation of public health improvements through increasedstandard setting and development of elements of model legislation, reg-ulations, and enforcement measures.

Endnotes1 Agreement Between the United Nations and the World Health Organization,adopted by the First World Health Assembly, July 10, 1948, Off. Rec. WorldHealth Organization 13, 81, 321. The UN-WHO Agreement recognizes WHO asthe specialized agency responsible for taking such action as may be appropriateunder its Constitution for the accomplishment of the objective set forth in theWHO Constitution.


2 Constitution of the World Health Organization, opened for signature July 22,1946, entered into force Apr. 7, 1947, arts. 80 & 82, 62 Stat. 2679, 14 U.N.T.S. 185thereinafter WHO CONST.].3 W.art.l.4 Mart. 2.5 For a discussion of WHO, its structure, functions, and actions, concerningparticularly the AIDS epidemic, see Susan Scholle Connor, AIDS andInternational Ethical and Legal Standards: Role of the World Health Organization, inINTERNATIONAL LAW & AIDS: INTERNATIONAL RESPONSE, CURRENT ISSUES, ANDFUTURE DIRECTIONS (American Bar Association, Lawrence Gostin & Lane Portereds.,1992).6 WHO CONST., supra note 2, art. 2.7 Id. art. 21. The Health Assembly has authority to adopt regulations concern-ing:

(a) sanitary and quarantine requirements and other procedures designed toprevent the international spread of disease;(b) nomenclatures with respect to diseases, cause of death and public healthpractices;(c) standards with respect to diagnostic procedures for international use;(d) standards with respect to the safety, purity and potency of biological,pharmaceutical and similar products moving in international commerce;(e) advertising and labelling of biological, pharmaceutical and similar prod-ucts moving in international commerce.Id, art. 22. Regulations adopted pursuant to Article 21 are to come into force

for all Members after due notice has been given of their adoption by the HealthAssembly except for such Members as may notify the Director General of rejec-tion or reservation within the period stated in the notice.9 Under Article 19, a two-thirds vote of the Health Assembly is required for theadoption of such conventions or agreements, which are to come into force foreach Member when accepted by it in accordance with its constitutional process-es.10 WORLD HEALTH ORGANIZATION, INTERNATIONAL HEALTH REGULATIONS (1969)(3d ed. 1983).11 The regulations are intended to strengthen the use of epidemiological princi-ples as applied internationally, to detect, reduce, or eliminate the sources fromwhich infection spreads, to improve sanitation in and around ports and airports,to prevent the dissemination of vectors, and, in general, to encourage epidemio-logical activities on the national level so that there is little risk of outside infec-tion establishing itself.12 Regulations concerning internal operations of the Organization, the ExecutiveBoard, and the World Health Assembly are in force.13 309 BRITISH MED. J. 1491 (1994).14 See Regulations for Expert Advisory Panels and Committees, in WORLD HEALTHORGANIZATION, BASIC DOCUMENTS (40th ed. 1994). The WHO Director Generalselects members of WHO expert committees, taking into consideration the needfor adequate representation of different trends of thought, as well as for anappropriate interdisciplinary balance. Id. para. 4.2.

8


15 See Regulations for Study and Scientific Groups, Collaborating Institutions andOther Mechanisms of Collaboration, in WORLD HEALTH ORGANIZATION, BASICDOCUMENTS (40th ed. 1994) [hereinafter WHO Collaboration Regulations]. Studygroups may be convened instead of expert committees when one or more of fiveconditions are met, including that the knowledge on the subject to be studied isstill too uncertain and the opinions of competent specialists are too diverse forthere to be a reasonable expectation of authoritative conclusions which can beimmediately utilized by the Organization. Id. para. 1.1.16 WORLD HEALTH ORGANIZATION, BOOKS AND PERIODICALS SUBSCRIPTIONS (1994).17 See id.18 See WHO Collaboration Regulations, supra note 15. The functions of scientificgroups are to review given fields of medical, health, and health systemsresearch, to assess the current state of knowledge in those fields, and to deter-mine how that knowledge may best be extended. Scientific groups play forresearch a role comparable to that of expert committees and study groups for theOrganization's program in general.19 In July 1994, the Economic and Social Council adopted Resolution 1994/24endorsing the establishment of the joint and cosponsored program and callingon the six organizations to work together to develop detailed proposals for itsimplementation.20 See information sheet provided by WHO External Relations Office,Washington, Mar. 1995 (concerning the Joint United Nations Program on AIDS).The UN Program will have the following broad functions: provide policy, strate-gic, and technical guidance on HIV/AIDS for the UN system; link the efforts ofthe six cosponsoring UN agencies at the country level, to ensure more efficientand cost-effective UN support to National AIDS programs; provide direct sup-port to National AIDS Programs in areas of greatest need, especially in planningand prioritization, program development, and evaluation of National AIDSPrograms.21 See ABA Recommendation and Report on AIDS adopted by the ABA House ofDelegates in August 1989, prepared by the Committee on International HealthLaw and proposed by the Section on International Law and Practice [published in24 International Lawyer 892 (1990)]. The resolution endorses the global strategy ofWHO for the worldwide prevention and control of AIDS. The ABA also urges: (a)the Government of the United States to strengthen its support for the WHOGlobal Program on AIDS (WHO/GPA), including AIDS program activitiesimplemented by the Pan American Health Organization (PAHO) and for bilateralprograms of research, prevention, and control; and (b) the effective coordinationof international AIDS programs conducted by the WHO/GPA, PAHO, otherglobal, regional, and bilateral arrangements, and private voluntary organizations.22 See World Health Organization, Executive Board, Ninety-fifth Session,Provisional agenda item 12, EB95/23, Nov. 14, 1994, Annex n.l, at 1."Resolutions WHA46.6 on Emergency and humanitarian relief operations (12May 1993); WHA46.39 on Health and medical services in times of armed conflict(14 May 1993); WHA47.28 on Collaboration within the United Nations systemand with other intergovernmental organizations; health assistance to specificcountries (12 May 1994); and WHA47.29 on Rwanda (12 May 1994)."


23 The ABA resolution on refugee health needs states that the American BarAssociation urges the United Nations: (a) to provide international protection forrefugee health needs; (b) to review the adequacy of current international agree-ments to address the health and related humanitarian needs of refugees and otherdisplaced persons; (c) to strengthen the protection of refugee health under theexisting international agreements; and (d) to develop international agreements, orother mechanisms, to protect the health needs of all other displaced persons.24 See Editorial, 345 LANCET 203, Jan. 28,1995.25 Id.26 Financial Regulations of the World Health Organization, in WORLD HEALTHORGANIZATION, BASIC DOCUMENTS (40th ed. 1994),27 See BRIT. MED. }., supra note 13, at 1426.28 The Working Group on the WHO Response to Global Change.29 See World Health Organization Forty-Seventh World Health Assembly,Resolutions and Decisions, Annex 2, Geneva, May 2-12, 1994,WHA47/1994/REC/1.30 Recommendation 31 states:

Ensure that the Organization be active in its response to the structuraland operating reforms taking place in the United Nations and its pro-grammes. WHO should develop concept papers or action papers to facil-itate the adoption of procedures, within the United Nations system,which further interagency cooperation and collaboration in the resolu-tion of health and development problems.

31 Recommendation 39 states:Improve the personnel procedures to ensure: technical competence asthe primary basis for the selection and recruitment of long and shortterm staff; the design and implementation of appropriate career devel-opment and continuing education programs; and the development of astaff rotation system between headquarters and regions. The Director-General should assess the impact of the geographic distribution ofposts on the quality of staff.

32 See WHO response to global change. Progress report by the Director General,Executive Board, Ninety-fifth Session, Provisional agenda item 9.1, EB95/12,Oct. 31,1994.33 See Health Sector Policy Paper (World Bank/Washington, 1980), at 42-43. Otherinternational organizations recognize the need for properly drafted national leg-islation and regulations. In a 1980 report on the health sector the World Bankemphasized that national legislation and regulations must be consistent withnew programs in basic health care in developing countries, citing two exampleswhere inappropriate legislation impeded health programs: (1) training and licen-sure requirements for health workers prohibiting the use of medical auxiliariesat the village level; and (2) civil sendee regulations that do not recognize newtypes of health workers.34 See World Bank, World Development Report, 1993, INVESTING IN HEALTH 164(1993). The World Bank considers regulation essential, for example, in formerlysocialist countries for development of efficient institutions. Observing signs ofpoorly conceived regulations already emerging, the World Bank cited"Romania's recent decision to issue lifetime licenses to doctors without estab-


lishing strict standards of practice or recertification requirements." Observingthat the legal and regulatory environment for private doctors, hospitals, andinsurance institutions is often either nonexistent or hostile, the World Bankopined that in the long term better regulation will require both training of gov-ernment inspectors and other regulatory personnel and development of govern-ment institutions such as medical licensing boards and national and local med-ical ethics committees.35

Although private medical practice is now permitted in most of theformerly socialist countries, the legal and regulatory environment forprivate doctors, hospitals, and insurance institutions is often eithernonexistent or hostile. With large numbers of private doctors establish-ing practices and private hospitals and clinics being created, regulationof providers will be critical for reducing the incidence of medical mal-practice and financial fraud. ... In the long run, better regulation willrequire both training of government inspectors and other regulatorypersonnel and development of government institutions such as medicallicensing boards and national and local medical ethics committees.

Id.36 WHA30.44 requests the WHO Director General:

(1) to strengthen WHO's program in the field of health legislation, witha view to assisting Member States, upon their request, in the develop-ment of appropriate health legislation adapted to their needs, and toenhance technical cooperation in health legislation and its administra-tion, particularly in developing countries;(2) to strengthen collaboration with other specialized agencies con-cerned in the development of guidelines for health legislation on thevarious subjects of health policies;(3) to study and implement the optimum means for dissemination oflegislative information in Member countries to serve as guides for thedevelopment of new or revised health laws;(4) to submit a report on development in this sphere to the HealthAssembly as soon as possible.

37 See also WHA33.28, adopted by the World Health Assembly in May 1980.Resolution WHA33.28 recognized that appropriate health legislation is an essen-tial component of health care services and environmental health systems for thedelivery of both personal and environmental health services, and that obsoletehealth legislation may constitute an obstacle at the national level to the attain-ment of health for all persons. WHA33.28 requested the Director General to pro-ceed with the formulation of a detailed programme of technical cooperation andinformation transfer in health legislation.38 Proposed WHO Programme Budget for financial period 1996-1997, WorldHealth Organization, Geneva, 1994, at 35 (discussing health legislation activitiesfor 1996-1997; trends for 1998-2001).39 World Health Organization, Implementation of the Global Strategy for Health forAll by the Year 2000, Second Evaluation, Eighth Report on the World Health Situation,1 GLOBAL REV. 55 (1993).

lfr


B. Recommendation and Report on the International MonetaryFund and the World Bank Group*

Recommendation

BE IT RESOLVED, that the American Bar Association recommendsthat the United States Government:

(a) Give strong support to the International Monetary Fund and theWorld Bank Group and provide assistance in the ongoingscrutiny of their operations;

(b) Support the International Monetary Fund undertaking a thor-ough re-examination of the IMF role vis-a-vis international cap-ital movements and private international capital markets,including consideration of an enhanced role for the IMF in themonitoring and appropriate regulation of international capitalmovements and capital market operations in order to achieve aprincipal purpose of its charter: the promotion of a stable sys-tem of exchange rates in the world economy; and

(c) Support the International Monetary Fund and the World BankGroup giving increased attention to the development of thelegal systems in member countries, particularly those countriesundergoing major institutional reform.

Report

I. The IMF and the World Bank Group: Introduction ...

Of all the specialized agencies of the United Nations, perhaps theInternational Monetary Fund (IMF) and the World Bank Group have thehighest profile and draw the most attention, both favorable and unfa-vorable. They stand at the center of the international economic system.This Report addresses a few key matters that appear crucial to the futureof the IMF and the World Bank Group — with particular emphasis on

* This Recommendation was approved by the American Bar Association Houseof Delegates in February 1996. The Recommendation and its accompanyingReport are one of a series of six related to selected specialized agencies of theUnited Nations and the International Atomic Energy Agency developed by theInternational Institutions Committee of the Section of International Law andPractice, through the Committee's Working Group on United NationsSpecialized Agencies and the IAEA. Members of the Working Group's TaskForce on the International Monetary Fund and the World Bank Group, responsi-ble for developing this Recommendation and Report, were H. Francis Shattuck,Jr. (Chair), Richard W. Edwards, Jr. (Rapporteur), John W. Head, Michael A.Heller, John F. Murphy, and Stephen Zamora.


issues that have a legal aspect. The Report begins with a limited set ofconclusions and recommendations. It then presents facts and findingsthat support these recommendations. The Working Group has conclud-ed that, on balance, these institutions make valuable contributions to theglobal economic order and deserve continued support from the UnitedStates, including financial support.

II. Conclusions and Recommendations

A. The Role of the United States in the IMF and the World BankGroup

(1) The United States should continue to give strong support,including financial support, to the IMF and the World BankGroup. The United States should consider increasing its levelof financial contributions to the International DevelopmentAssociation (IDA), the entity of the World Bank Group thatprovides assistance to the poorest countries of the world.

(2) Coupled with continuing U.S. support, however, should be con-tinuing scrutiny, in order to encourage the IMF and the WorldBank Group to make further improvements in certain areas.These include:

• giving adequate attention to the impact on the etiviron-ment — both physical and human — of projectsfinanced with World Bank resources;

• incorporating the views and input of beneficiaries andnongovernmental organizations in the identificationand implementation of projects supported by the WorldBank;

• providing adequate disclosure of information to earnconfidence, among governments and in the public gen-erally, as to the fairness and appropriateness of WorldBank and IMF actions; and

• emphasizing legal reform in their member countries, asdiscussed in more detail in point B(2) below.

(3) When change is needed in the IMF or World Bank Group, theUnited States should seek to build a consensus for change andshould avoid, to the extent possible, unilateral actions, such asthreats to withhold or condition U.S. financial support.

B. New Areas of Emphasis for the IMF and the World Bank Group

(1) The IMF Executive Board should undertake a thorough re-exam-ination of the IMF's role vis-a-vis international capital move-ments and private international capital markets. Such re-

m.

Site


examination should include consideration of an enhanced rolefor the IMF in the monitoring and appropriate regulation ofinternational capital movements and capital market operationsin order to achieve one of the principal purposes of its charter:the promotion of a stable system of exchange rates in the worldeconomy.

(2) Both the IMF and the World Bank Group should give increasedattention to the development of the legal systems in theirmember countries, particularly in those countries undergoingmajor institutional reform, by providing competent legaladvice on the application of effective legal structures to localcultural and legal traditions. Technical assistance (includingthat provided by the ABA's Central and East European LawInitiative) should be part of coordinated efforts, such as thatexemplified by the Joint Vienna Institute.

C. The Relationships between the United Nations and the IMF andthe World Bank Group

(1) No major change in the relationships between the UnitedNations and the IMF and the World Bank Group is necessary.Specifically, there is no need to revise the relationship agree-ments between the organizations.

(2) The United Nations General Assembly and other organizationsor groups of countries should resist the temptation to politi-cize these institutions — that is, to press the IMF and theWorld Bank Group to take actions that are not central to thoseinstitutions' economic and monetary objectives, such as metingout punishments or rewards to countries for adopting particu-lar ideologies.

(3) The IMF should establish a procedure or mechanism, perhapssimilar to the Inspection Panel of the World Bank, to assureinternal and external accountability.

III. A Map of the Institutional Landscape: The IMF and the WorldBank Group in a Nutshell

The International Monetary Fund (IMF)1 and the International Bankfor Reconstruction and Development (IBRD)2 were created by agree-ments negotiated at an international financial conference held at BrettonWoods, New Hampshire, in July 1944. The conference took place whileWorld War II was in progress and a year before the San FranciscoConference that created the United Nations.


Two financial institutions affiliated with IBRD have been created:the International Development Association (IDA)3 and the InternationalFinance Corporation (IFC).4 In addition, two multilateral treaties, onerelating to the guarantee of private investments against non-commercialrisks and the other to the settlement of investment disputes, were nego-tiated under the auspices of the IBRD and are administered by Bank per-sonnel: the Convention Establishing the Multilateral InvestmentGuarantee Agency (MIGA)5 and the Convention on the Settlement ofInvestment Disputes between States and Nationals of Other States(ICSID).6 The IBRD and IDA together are often referred to as the "WorldBank," and these two organizations plus the IFC, MIGA, and ICSID areknown as the "World Bank Group." A state cannot be a member of theIBRD without also being a member of the IMF, although the reverse ispossible.

The IMF, IBRD, IDA, and IFC are international organizations whosemembers are nation states. Each organization has nearly universal mem-bership (177 member states in the IBRD, for example), and each organi-zation has a somewhat unique mission. The IMF, IBRD, IDA, and theIBRD on behalf of the IFC have relationship agreements with the UnitedNations, described below.

A. The IMF

The International Monetary Fund (IMF) is primarily concerned withinternational monetary problems and issues, and related balance-of-pay-ments problems of its members in the short-to-medium term. The IMF'sconcern is with rich as well as poor countries (e.g., the United States hassignificantly benefited from IMF financial assistance, most recently in1978 as described below). Although the public perceives the IMF as pri-marily a lending institution, it does not in a technical sense "makeloans." It buys and sells currencies in arrangements with members thathave the financial effect of "loans." The sources of funds used by theIMF come from paid-in quota subscriptions of member countries andborrowings by the IMF from national governments and their centralbanks. The IMF has not borrowed in the public market.

The IMF is the issuer of a monetary reserve asset called the SpecialDrawing Right or "SDR." The SDR can only be owned and used by offi-cial entities, not by private parties. In dealings of governments and otherofficial holders, the SDR functions much like a national currency. As theissuer of the SDR, the IMF at the international level plays a role some-what comparable to a national central bank in national economies. TheSDR is also the unit of account of the IMF and a number of other interna-tional organizations. It is currently valued in relation to an index consist-


ing of five widely-used national currencies. On April 3, 1995, the SDRhadavalueofU.S.$1.566.

Relatively few members of the public are aware that the IMF, inaddition to its financial operations, plays regulatory roles - what havebeen called "rule-creating" and "rule-enforcing" roles. The IMF adminis-ters what are informally called "rules of good conduct" in internationalmonetary affairs. These rules, which are set forth or have their basis inthe IMF's Articles of Agreement, relate to such matters as exchange ratearrangements, national restrictions on currencies and payments, sharingof information, and obligations of members to cooperate and collaboratein dealing with international monetary problems. The IMF holds consul-tations with each of its members regularly in which the member coun-try's exchange rate arrangements and currency exchange restrictions arereviewed.

While the IMF does not directly regulate the activities of private par-ties, Article VIII, section 2(b), of the IMF's Articles of Agreementrequires member countries to assure that their administrative authoritiesand courts not enforce private contracts that are contrary to exchangecontrol regulations of another member where those controls are consis-tent with the IMF Articles. The Bretton Woods Agreements Act of theUnited States makes that provision of Article VIII directly applicable tolitigation in U.S. courts.7 It is also directly applicable in the courts ofother IMF members. The provision has spawned an extensive jurispru-dence in the state and federal courts of the United States.

B. The World Bank Group

In the field of development finance from public sources, the WorldBank Group has been, and continues to be, the dominant institution inthe world. As noted above, the founding institution, the InternationalBank for Reconstruction and Development (IBRD), has evolved into fiveorganizations. Three of these are complementary financial organizations,each created by multilateral agreement of nation states: the IBRD, theInternational Development Association (IDA), and the InternationalFinance Corporation (IFC). The World Bank Group also includes twoorganizations of a highly legal character related to private investment:the Multilateral Investment Guarantee Agency (MIGA) and theInternational Centre for the Settlement of Investment Disputes betweenStates and Nationals of Other States (ICSID).

IBRD: The IBRD is the oldest and largest of the World Bank Grouporganizations. Under its Articles, it can only lend to governments orwith government guarantee. For practical purposes, this means that vir-tually all of the Bank's loans are to governmental entities. Most IBRDloans in recent years have been made in support of projects in what


might be called the "middle group" of developing countries. These arenot the poorest countries. Nor are they the richer developing countriesthat have ready access to international capital markets. Total IBRD lend-ing since its establishment amounts to around $300 billion. In the fiscalyear ended April 30, 1994, the IBRD approved loans totaling $14.2 bil-lion.

The vast bulk of the funds loaned by the IBRD have been obtainedthrough borrowings by the Bank on the international capital market,where its bonds enjoy an AAA credit rating. In general, the Bank bor-rows long term and loans medium-to-long term. In many cases, theBank is able to borrow on the international market at low enough ratesso that, even after expenses and a modest "profit," it can loan to membergovernments at substantially lower rates than those at which they couldborrow in the market.

IDA: Because the interest rates on IBRD loans to its members arekeyed to the interest rates paid by the Bank on its own borrowings andexpenses, the rates are higher than many of the poorest members mostin need of development capital can afford. These are also countriesshunned by productive private investment (except sometimes in extrac-tive industries). In 1960 the International Development Association(IDA) was formed. As explained below, it is institutionally associatedwith the IBRD. It is primarily financed by what are called "replenish-ments," which essentially are funds periodically donated by memberstates. IDA makes loans (called "credits") to the poorest of the develop-ing countries for projects of "high developmental priority."8 The creditsare often for the very long term — usually 35-40 years. They carry nointerest charges but do have a small service charge. Often, IBRD loansand IDA credits are blended into a package. IDA has concentrated itsassistance on the poorest countries in sub-Saharan Africa and southAsia. In the fiscal year ended April 30,1994, IDA approved credits total-ing $6.6 billion.

IFC: As noted above, the IBRD is only authorized to make loans togovernments or with government guarantee of repayment. Althoughnot required by its Articles, the IDA normally only makes loans to gov-ernmental bodies. Because it is rarely appropriate for a government toguarantee the commercial success of a private enterprise, in the mid-1950s the International Finance Corporation (IFC) was formed to assistthe financing of private enterprise in developing countries. The IFC,which is affiliated with the IBRD, is authorized to make loans and takeequity positions in enterprises whether or not there is governmental par-ticipation in the enterprise. The IFC is not limited in its financing tech-niques. Article III, section 2, of the IFC's Articles of Agreement provides:"The Corporation may make investments of its funds in such form or

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forms as it may deem appropriate in the circumstances." The IFCobtains its funds primarily through borrowings in the international capi-tal market and sales of participations in its investments.

The IFC is the World Bank Group institution that has sustained themost growth in percentage terms in recent years. It is currently approv-ing new loans and investments at a rate of about $2.5 billion a year, andwithin five years the rate is expected to double to about $5 billion. It isestimated that each dollar of IFC investment leverages about $6 in otherprivate investment.

MIGA and ICSID: The World Bank Group, in addition to develop-ing international law as it relates to public lending, has worked to devel-op international legal structures to encourage and protect productiveprivate investment. As noted earlier, the Multilateral InvestmentGuarantee Agency (MIGA), affiliated with the World Bank, issues insur-ance to private investors against non-commercial risks. The InternationalCentre for the Settlement of Investment Disputes (ICSID), also affiliatedwith the Bank, provides an arbitration forum for resolving investmentdisputes between foreign private investors and host governments.

C. How These Institutions Directly Benefit the United States and U.S.Taxpayers

It seems appropriate to correct the common misapprehension thatthe IMF and the entities in the World Bank Group constitute huge finan-cial drains on the U.S. Treasury. These institutions produce a net eco-nomic gain for the United States.

In the case of the IMF, the payments made by the U.S. Treasury insupport of the U.S. subscription in that institution are in reality only anexchange of assets (dollars for SDKs), which the United States can readi-ly reverse. Indeed, unconditional drawing rights of the U.S. in the IMFare included in official statements of U.S. monetary reserves. Moreover,the IMF pays interest (technically called "remuneration") to the UnitedStates for the IMF's use of its dollar holdings in making financial trans-fers to other countries. The United States has actually made money fromits membership in the IMF.

In the case of the World Bank Group, the picture is more complicat-ed but the effect is similar. More money flows into the United States as aresult of its participation in the IBRD, IFC, and IDA than flows out in theway of subscriptions and contributions. First, as for the IBRD and IFC,only small proportions of the U.S. subscriptions have had to be paid in.The remainder is "callable." Because of the strong financial position ofthese institutions, it is doubtful that the callable capital will ever becalled in. As for IDA, although the contributions are relatively large, thetangible return is also large. That "return" takes the form of payments


made to U.S. businesses that win contracts for goods and servicesrequired under projects financed by loans supported by the World BankGroup. A recent report of the Treasury Department stated that in 1993the amounts paid by the United States — about $2.7 billion — were lessthan the amounts coming back into the U.S. private sector through suchcontracts — about $5.0 billion.9

IV. The IMF and the World Bank Group: Structure and Organization

The IMF, IBRD, IDA, and IFC have governing structures that aresomewhat different from most other non-financial international organi-zations. For one thing, weighted voting is used, as distinct from the one-state one-vote structure in, say, the UN General Assembly. A membercountry's voting power in the IMF, IBRD, IDA, and IFC is based on itsfinancial subscription in the organization, which in turn is related to thecountry's international economic position. Currently, the United Statesholds about 17% of the votes in all of these organizations, with Japan,Germany, the U.K., and France each having about 5% or 6% of the votes.

A. Governing Structures of the IMF and the IBRD

The IMF and the IBRD each has as its highest organ a plenary body(called a "board of governors") in which each member state is represent-ed by a governor and alternate governor. However, the plenary bodyusually meets only once a year (the annual combined meeting of the IMFand World Bank) and then meets only for a week. Below the board ofgovernors, the IMF and the IBRD each has an executive board. The exec-utive boards are legally in continuous session and, in fact, meet one ormore times a week. The Managing Director of the IMF and the Presidentof the World Bank preside at meetings of the respective executive board.The executive boards both make policy decisions of general applicability(e.g., the terms under which financial assistance will be made availableto member countries) and the decisions relating to specific membercountries (e.g., the approval of individual IMF stand-by arrangementsand World Bank loans).

There are currently 24 executive directors of the IMF and 24 execu-tive directors of the World Bank. A few countries (generally those hav-ing the largest subscriptions) are represented by individual directorswho represent one country only. However, most member countries arerepresented by executive directors who represent groups of countries.Voting in the executive boards, as in the boards of governors, is byweighted voting. However, in the executive board, a director cannotsplit his votes where states the director represents have different views;the votes of each director are cast as a lot. Except on matters where spe-


cial majorities are required (e.g., 70% of the weighted voting power),most decisions are in fact made on the basis of consensus as assessed bythe chairman of the board (Managing Director of IMF or President ofWorld Bank).

B. Governing Structures of the IDA and the IFC

The governing structure of the International DevelopmentAssociation (IDA), in accordance with its charter's design, is virtuallyidentical to that of the IBRD, and the same persons serve as President,governors, and executive directors of the two organizations.10

The International Finance Corporation (IFC) does not have an execu-tive board but has, similar to private corporations, what is called a"board of directors." The membership of the IFC's board of directors isbasically the same as the membership of the IBRD's executive board.The President of the IBRD is the chairman of the IFC's board of direc-tors. The IFC has its own President, who is appointed by its Board ofGovernors on recommendation of the President of the IBRD.11

C. Management and Staff

The Managing Director and staff of the IMF and President and staffof the World Bank Group play relatively more important roles in theorganizations compared to the secretary-generals and staffs of manyother international organizations. Staff members negotiate directly onbehalf of the organizations with officials in the governments of memberstates. The staffs are highly expert. Their expertise rivals, and oftenexceeds, the expertise of staffs in the finance ministries, central banks,and development agencies of member states, including even the mostpowerful of those states. Further, because of the information obligationsof member states under Article VIII, section 5, of the IMF Articles ofAgreement, the staffs have knowledge of a great deal of information anddata about national economies.

In accordance with IDA's Articles of Association, the officers andstaff of the IBRD are, to the extent practicable, appointed to serve con-currently as officers and staff of IDA.12 Although the IBRD providesadministrative services to the IFC, the staff of the IFC is legally indepen-dent of the Bank's staff.

V. The "A-Political" Focus of the IMF and the World Bank Group

The charters of the IMF and entities of the World Bank Group areintended to restrict the effects of political considerations in decisionmaking. The Articles of Agreement of the IBRD provide:


The Bank and its officers shall not interfere in the politcalaffairs of any member; nor shall they be influenced in theirdecisions by the political character of the member or mem-bers concerned. Only economic considerations shall be rele-vant to their decisions and these considerations shall beweighed impartially ... .13

The Articles of Agreement of the IMF prohibit the organization frompublishing a report critical of changes in "the fundamental structure ofthe economic organization" of a member14 — e.g., changes from a capi-talist to a socialist orientation (or vice versa).

Careful adherence to the organization's constitution is a principlethat has historically figured prominently in decision making in the IMFand World Bank. The legal departments of the organizations haveplayed important roles in the development and operations of the organi-zations. The Articles of Agreement of the International Monetary Fundhave been amended three times — in large part to clearly establish theauthority of the IMF and to avoid controversy about what some mightotherwise view as excessively flexible interpretations of a foundinginstrument. Similar concerns to assure legality have guided decisions inthe World Bank Group.

VI. Relationships of the IMF and the World Bank Group with theUnited Nations

The IMF, IBRD, IDA, and the IBRD on behalf of the IFC have formalrelationship agreements with the United Nations in accordance withArticle 63 of the UN Charter.15 While these organizations are "special-ized agencies" in terms of Article 57 of the UN Charter, the organiza-tions rarely describe themselves as "specialized agencies" and never as"agencies of the United Nations." The UN relationship agreements rec-ognize the IMF and the entities of the World Bank Group as "indepen-dent" international organizations.16

The relationship agreements restrict the information that the IMFand the IBRD are required to provide to the UN. Specifically, no infor-mation need be provided to the UN that either the IMF or the IBRDwould judge to constitute a violation of the confidence of any memberor to interfere with the orderly conduct of the organization's opera-tions.17

Both the IMF-UN agreement and the IBRD-UN agreement prohibitUN bodies from making formal recommendations to the IMF or Bankexcept after "reasonable prior consultation with regard thereto."18 Thatprohibition is buttressed by the following provision in the IBRD-UNagreement:


I

The United Nations recognizes that the action to be taken bythe Bank on any loan is a matter to be determined by theindependent exercise of the Bank's own judgment in accor-dance with the Bank's Articles of Agreement. The UnitedNations recognizes, therefore, that it would be sound policyto refrain from making recommendations to the Bank withrespect to particular loans or with respect to terms or condi-tions of financing by the Bank.19

The IMF-UN and IBRD-UN relationship agreements make clear thateven UN Security Council decisions under UN Charter Articles 41 and42 are not directly binding on the IMF and World Bank. The language isthat each of the two financial organizations "takes note" of UN CharterArticle 48 (making decisions of the Security Council under Articles 41and 42 binding on UN members), and obligates the IMF and WorldBank to "have due regard" for Security Council decisions under CharterArticles 41 and 42.20

The IMF-UN agreement and the IBRD-UN agreement contemplateno role for the UN General Assembly or the Economic and SocialCouncil of the UN (ECOSOC) with respect to the budgets of the twoorganizations.21 Representatives of the United Nations have no generalright to attend meetings of the executive boards of the IMF and Bank.22

The World Bank has a formal relationship with the United NationsDevelopment Programme (UNDP) and with the United NationsEnvironment Programme. The UNDP is an important source of technicalassistance to developing countries. Its assistance is mostly non-mone-tary, consisting of training of personnel and the assignment of experts.The UNDP and the World Bank cooperate to identify and help designdevelopment projects. However, the Bank has found it difficult to relyexclusively on other organizations for specialized expertise. The Bankfound, for example, that it was necessary to develop "in house" environ-mental expertise.

One of the reasons why UN influence has not been greater on thework of the IMF and the World Bank may relate to constituencies. TheIMF and World Bank deal primarily with persons in national financeministries and national central banks, and to a much less extent withpersons in national foreign ministries. The UN, by contrast, deals pri-marily with persons in national foreign ministries.

VII. Relationships of the IMF and the World Bank Group with EachOther and with Other Organizations

Many persons may believe that the IMF and World Bank Grouphave closer relations with each other than has proved to be the case.


While their boards of governors hold their annual meetings jointly andmany persons serve as governors (and some even as executive directors)of both organizations, in fact the IMF and the World Bank Group havenot historically had a particularly close working relationship.

One of the reasons that the organizations have not always workedclosely together is that each has seen its mission differently, reflectingthe different purposes enumerated in their charters. The IMF has beenconcerned with the macro-economic policies of its members, includingits most powerful members. The Bank historically generally had amicro-economic orientation that centered on particular projects and pro-grams of borrower countries.

Some changes in the respective roles of the IMF and the World Bankhave occurred in the past decade or so. In response to the debt crises inthe early 1980s, the IMF shifted its emphasis from primarily short-termfinancial assistance to the medium term. At about the same time, theWorld Bank began making loans for "sectoral adjustment" — medium-term loans supporting comprehensive change in sectors such as agricul-ture — in addition to loans for specific projects. With these changes,some operations of the institutions tended to overlap, prompting somecompetition and, with it, a need for better coordination between the IMFand the World Bank. With some "fits and starts," this coordination hasincreasingly been achieved. It is now common for IMF staff to be includ-ed in World Bank missions, and vice versa, when financial assistancefrom both organizations may be contemplated. However, the missionsof the IMF and the World Bank Group remain distinct. Proposals tomerge the two institutions would not achieve significant efficiencies andwould likely undermine the effectiveness of each organization.

The IMF has working relations with several international organiza-tions that are not in the "UN family," including the General Agreementon Tariffs and Trade (now succeeded by the new World TradeOrganization), the Bank for International Settlements in Basel,Switzerland, and the Organisation for Economic Co-operation andDevelopment. It also has working relations with the institutions of theEuropean Monetary System and other regional monetary institutions.

The World Bank Group has served as the model for regional devel-opment banks, including the Inter-American Development Bank, theAfrican Development Bank, the Asian Development Bank, and (to a less-er extent) the European Bank for Reconstruction and Development. TheWorld Bank Group has working relationships with these regional devel-opment banks and has participated with them in coordinated financingactivities.

a iW5VB"« --


VBDL Appraisal of the Organizations

When the IMF and World Bank were created near the close of WorldWar II, the causes of the war, especially economic policies that helpedbring on the war, were in the minds of the founders. There was a strongsense that the lack of attention to international economic relations by theLeague of Nations, and its ineffectiveness in dealing with economic mat-ters, contributed to the outbreak of World War II. The founders of theIMF and the IBRD contemplated effective and powerful internationalinstitutions that would be the forums for consultation and the drivingengines for collaboration in building a better international economicorder.

The IMF and the World Bank Group have been key players in thedevelopment of international economic law, both substantive and proce-dural. They 'do not simply administer sets of rules embodied in treaties.They are organic institutions with on-going responsibilities.

A. Appraisal of the IMF

The work of the IMF has been intensively appraised from an eco-nomic perspective.23 This appraisal centers on issues that have a legalcomponent.24 It can be said that the International Monetary Fund "virtu-ally created" international monetary law, as very little international lawrelating to monetary matters existed prior to the IMF's formation.

The purposes of the IMF, stated in the Articles of Agreement, beginwith the idea that the IMF is to be a "permanent institution which pro-vides the machinery of consultation and collaboration on internationalmonetary problems."25 The idea of creating an organic institution andnot just rules was a fundamental decision. This most important of pur-poses has been achieved.

Exchange Controls: The IMF has played a major role in the liberal-ization of trade by what can only be described as "spectacular" work inestablishing a multilateral system of payments in respect of trade andother current transactions. National foreign exchange restrictions thatinhibited trade and other current transactions were widespread andintegral to the protectionist practices that prevailed in 1944. Such restric-tions have now been virtually eliminated by the major economic powersand reduced (if not completely eliminated) by most others.26

Financial Assistance: The IMF is best known to the public for thelarge-scale financial assistance that it has provided to countries facingbalance-of-payments problems. The IMF's record in providing suchassistance has been a good one. While it is always possible to find faultwith a creditor's lending policies, the IMF has developed policies andpractices that have sought to balance in an appropriate manner the


needs of countries in difficulty and the needs to safeguard the financialintegrity of the IMF. The idea is that the IMF should stand ready to pro-vide large amounts of funds but for only temporary periods.

The IMF's "guidelines on conditionality" reflect the balance. On theone hand, the guidelines require that the IMF not provide funds to amember country without a strong showing of commitment on the partof that country to address domestic economic and financial weaknessesthat caused or contributed to the balance-of-payments problem thatprompted the request for IMF financing. On the other hand, the "condi-tionality" guidelines require that the IMF "pay due regard to the [partic-ular country's] domestic social and political objectives, economic priori-ties, and the circumstances."27 The IMF's lending policies have evolvedover time, and that process will continue as the organization seeks tolearn from the longer-term experiences of countries to which it has pro-vided assistance.28

Examples: Two examples illustrate how the right to purchase for-eign currencies from the IMF in relatively large quantities provides a"line of defense" for countries facing a balance-of-payments crisis. InNovember 1978, following a persistent decline of the dollar in theexchange markets, the United States purchased Deutsche mark andJapanese yen then equivalent to $3 billion from the IMF and used SDKs(equivalent to an additional $2 billion) to obtain currencies for use in sta-bilizing the dollar's exchange rate. This was done very quickly with noprotracted negotiations.29

In early 1995, Mexico faced a currency crisis. Mexico was permittedto draw immediately currencies equivalent to $7.8 billion from the IMFand entered into a stand-by arrangement under which it could draw anadditional $10 billion of currencies from the IMF, for a total equivalentto $17.8 billion. This was an unprecedented action both for its total sizeand in relation to Mexico's quota ($17.8 billion is 688 percent of Mexico'squota in the IMF). The IMF arrangement was critical to working out theMexico "package" that also involved assistance from the United States,the Bank for International Settlements, and other countries, making totalcredit available of about $52 billion.30

Debt Crises: The IMF played a crucial role, both in its own right andas a catalyst, in dealing with debt crises in the 1980s. While the UnitedStates and other national governments played important parts, the IMFwas the leading international organization involved — working, con-sulting, and coordinating with officials in creditor and debtor countriesin the so-called "Paris Club" involved with official debt reschedulingand with private commercial banks. Often, a key element of a reschedul-ing plan was institutional restructuring in the debtor country supportedby an IMF "stand-by" arrangement.31


Economies in Transition: Russia and countries in Eastern Europe arecalled "transitional economies." They are in the process of changingfrom centrally-planned "command economies" to more open "marketeconomies" where economic decision making is decentralized andwhere the price system plays a key role in the allocation of economicresources and labor. The IMF has provided support to these countriesboth in the form of technical assistance and large-scale financing. It istoo early to make judgments about the successes and failures of the IMFin working with its members engaged in such dynamic times. As com-mented later, structural reform is legal reform. The role of lawyers is asimportant to the success of structural reform as the role of economists.32

Technical Assistance: Although not mentioned explicitly as a pur-pose, the IMF has played an important role in providing technical assis-tance to its members. This has included legal assistance in drafting cen-tral bank legislation, reform of currency exchange controls, and othermatters. The importance of the work of the IMF and other organizations(including the Central and East European Law Initiative of the AmericanBar Association [CEELI]) has become more apparent to the general barwhen seeing the current challenges facing countries of Eastern Europe.However, this is not a new area of work for the IMF. Since its founding,it has provided technical legal assistance in domestic legal matters relat-ing to monetary law to its member countries.

Exchange Rates and Capital Movements: It is with respect toexchange stability that the IMF has been most incisively criticized.Today, exchange rate instability, rather than stability, seems to be thenorm. However, there are different views among economists and offi-cials about what is meant by "exchange stability" and "orderly exchangearrangements." Is the purpose primarily to maintain orderly exchangearrangements in the sense of system stability, or is rate stability to be thegoal? Economists and officials differ regarding whether floatingexchange rates are desirable over the long term or are only to be tolerat-ed as a temporary fact of life. In any event, the par value system thatcontemplated stable exchange rates embodied in the original Articles ofAgreement was replaced in the 1970s by softer rules that have allowednational authorities greater freedom in choosing and modifyingexchange arrangements.33

Let us now turn to concerns today that were not on the agenda in1944. In 1944 national restrictions on exchange and international finan-cial transactions were the norm. At that time only the United States andCanada had liberal regimes. By the early 1960s restrictions on paymentsfor current international transactions were by and large eliminated inthe economically powerful countries. In the last 25 years restrictions oncapital movements have been radically reduced. Private participation in


the exchange markets has grown dramatically. The result is an interna-tional financial market whose size is so large as to be almost impossibleto fathom. While active exchange markets and freedom of capital flowstransnationally have many positive aspects for economic growth, thereare also negative aspects that deserve attention.

A whole industry has developed composed of persons (usuallyemployed by commercial banks and investment houses) who seek todetect incipient movements in exchange rates and to "get on the band-wagon early." The result has been both sharp and rapid movements inexchange rates and general exchange instability as participants in themarket (primarily commercial banks) widen their "bid" and "asked"quotations for currency exchanges whenever the market appears unset-tled. The impact of large, essentially "speculative," short-term capitalmovements on exchange rates has frustrated the IMF in the performanceof one of its primary purposes — the promotion of exchange stability.34

National monetary authorities, even when they cooperate amongthemselves, have difficulty regulating, or even influencing, the conductof commercial banks and other private entities that engage in transna-tional financial operations. Effective regulation of global securities andexchange markets probably requires regulation that itself is global ascompared to national. Consideration needs to be given to an enlargedrole for the IMF in the close monitoring of large capital movements andpossible exercise of direct regulatory powers over private financial insti-tutions.35

Relations with Powerful Countries: Another challenge that hasfaced and continues to face the IMF is how to deal effectively (maintaina degree of discipline) with its most powerful members. This is particu-larly apparent in the exchange rate area. Achievement of greaterexchange rate stability is probably dependent upon the more powerfulmembers being subjected to a tighter legal regime than is the case at pre-sent.

B. Appraisal of the World Bank Group36

Shift in Loan Portfolio: The World Bank Group institutions comple-ment each other and provide a range of financing techniques that can betailored to the situation of the beneficiary country. While the WorldBank is probably best known to the public for the large infrastructureprojects that it has financed (e.g., highly visible hydroelectric dams),much of its financing (especially in recent years) has gone to smallerprojects, including some "micro-credit" loans intended to give financialsupport to small entrepreneurs. The continuing efforts of the WorldBank Group to strengthen the private sector should be noted. In addi-tion, some IBRD and IDA lending in recent years has been "program


lending" and "sectoral adjustment lending." Program lending is financein support of regulatory and institutional reforms in particular areas of acountry's economy such as energy, agriculture, or education. Sectoraladjustment lending provides financing during the transitional periodwhen fundamental institutional changes are made affecting industry,agriculture, and labor as the country moves, for example, from a com-mand economy to a market-oriented economy.

The United States should consider increasing the level of its finan-cial contributions to the International Development Association. IDAdevelopment financing goes where such financing is most needed and isnot available from other sources — that is, to the economically poorestcountries. IDA's assistance in the improvement of agriculture resulted inthe so-called "green revolution" that has led to agricultural self-suffi-ciency in such countries as India. As mentioned below under TechnicalAssistance, IDA financing can leverage broad-scale legal reform whichprivate financing cannot do effectively. Every dollar contributed by theU.S. generates about five dollars from other contributors. IDA projectsbuild markets for U.S. goods. As noted earlier, the U.S. contribution in1993 of $2.7 billion was balanced by revenues of $5 billion to U.S. ven-dors and contractors.

IFC: The IFC has historically centered its attention on the "projectdeal" rather than the broader investment environment. Most of the IFC'sinvestments have been in the "better off" developing countries. The IFCshould give more attention to the cultivation of private investmentopportunities in countries that are not as well off as those to which it hasdevoted most of its attention in the past. It needs to work more closelywith the Bank in identifying domestic institutional changes (law reform)as part of a development strategy in which private investment is an inte-gral feature.37

Technical Assistance: From its beginning, the World Bank has seentechnical assistance as an integral part of its activities. A successfulhydroelectric project, to take an example, not only requires sound engi-neering design, but creation and reform of legal institutions that set therates for electric power sales, that determine the release of water foragricultural purposes, that allocate funds for maintenance, that assurefunds are available to meet debt service obligations, and the like.

One of the advantages that the World Bank Group enjoys comesfrom its inter-governmental public character. When its assistance is con-templated, it can involve itself in broad-scale institutional reform in away that would be seen as inappropriate for a foreign private lender orinvestor, or even for an individual government. In addition, the Bankacts as a clearinghouse which collects "best practices" from around theworld and disseminates those experiences to member countries.


Institutional Reform: The World Bank Group, like the IMF, dealswith matters that governments have traditionally treated as outside thescope of international review — domestic taxation, spending, fiscal poli-cy, and industrial policy. The success of the Bank when consulting withcountries on these matters and building them into reform programs tobe supported by Bank financial assistance hinges in large measure onthe expertise of Bank personnel, the soundness of the policy recommen-dations, and the perception that the Bank and its personnel are fair andimpartial.

Role of Legal Reform: The World Bank Group has tended to seereform in economic terms. While there are economists at all levels of theBank's operations, lawyers tend to be concentrated in the Bank's LegalDepartment. Lawyers are rarely involved in substantive project designor ongoing policy dialogue with member governments. Lawyers couldplay valuable roles in other areas of the Bank, especially in groups thatnegotiate and design sectoral adjustment programs. Economists may notalways appreciate the complex legal and institutional underpinningsthat a market economy requires. Structural reform is primarily legalreform.38 Legal reform is fundamental to sustainable development. TheBank will increasingly require access to sophisticated legal skills as itslending mix continues to shift towards enabling private investment andaway from the former state-driven physical investment mold.

For example, there is a need to involve lawyers more effectively andto improve coordination among organizations that provide training sup-port in Eastern Europe to countries in transition from centrally-plannedto market-based economies. The principal multilateral institutions havemade an effort to coordinate their activities, and more could be done.The Joint Vienna Institute established by an agreement among the IMF,IBRD, the European Bank for Reconstruction and Development, theOrganisation for Economic Co-operation and Development, and theBank for International Settlements39 is an example of cooperation.

Environment and Human Rights: The World Bank has been criti-cized in the past for adverse environmental impacts of some of the majorprojects that it has financed — including deforestation and large-scaleforced movements of persons. The Bank has brought onto its staffexperts in assessing environmental impacts.40 Environmental assessmentis now an integral part of project planning. In fact, the environmentalassessment reports on projects proposed for World Bank funding arenow made available to the public. However, environmental impact ismore than a project-by-project matter. Environmental improvementmust be an integral part of development strategy.

The Bank has also been chastised for being insensitive to the humanrights records of some of the governments to which it has made loans.41


The Bank, while still resisting outside efforts that intrude upon its lend-ing jurisdiction, has come to recognize the human dimension of success-ful development. The Bank should continue to adjust its policies to seethe promotion of human rights (what sometimes are called "governanceissues") as integral to economic development.42

C. IMF and World Bank Accountability

At several places in this report, the need for the IMF and the WorldBank Group to be more accountable to governments and to the publichas been pointed out. However, it is important that these organizationsnot become the puppets of particular states or groups. When change isneeded in the IMF or World Bank Group, the United States should seekto build a consensus for change and should avoid, to the extent possible,unilateral actions. An example of a frui t ful initiative was theCongressional action in the early 1990s to require the U.S. ExecutiveDirector in the IBRD to withhold support for World Bank financing forany project unless an environmental impact assessment was releasedprior to the Executive Board's consideration of a project loan.43 Theinsistence by the United States in the early 1990s on an amendment tothe IMF's Articles of Agreement (to add a new form of punishment forthose few members that are delinquent in loan repayments) was coun-terproductive because of the ill will it engendered.44 Threats to cut offU.S. funding or to condition it on certain actions by the World Bank areusually ill-advised.

Concerns have been raised about the secretiveness of the IMF andthe World Bank, and calls have been made for an "improvement oftransparency." Meetings of the executive boards are not open to thepublic or press. Information about what transpired at those meetingsmay only become available with a delay of years. On the other hand,some commercial banks appear to have "effective intelligence net-works." They have been able to obtain, often through national officials,IMF and World Bank documents that are supposed to be confidential.This raises questions about who outside the IMF and World Bank is andshould be privy to unpublished materials.

The Executive Board of the World Bank in September 1993 estab-lished an Inspection Panel.45 The panel is composed of persons who areknowledgeable about the Bank's work but independent of the Bank. Thepanel provides a mechanism for review of the Bank's policies and prac-tices and a measure of external public accountability.

Similar steps should be taken in the IMF. The organization's policiesand actions have profound impacts on the international economy andnational economies. Its financial resources are huge. In addition to pro-cedures for auditing the uses of its funds, there is a need for indepen-


dence in program and performance evaluation. Indeed, since the IMF'suse of funds often triggers the availability of other global credit, thoughtshould be given to instituting procedures that will provide greateraccountability — both internally and externally — for all of the actionsof the IMF.

It is only in relatively recent years that nongovernmental organiza-tions have given informed attention to the work of the financial organi-zations. The IMF and the World Bank Group need to improve the mech-anisms for dealing productively with nongovernmental citizen organiza-tions, commercial banks, and other private bodies.46 Specifically, a newset of policies and procedures for information sharing and consultationwith these groups should be developed, along the lines of recent WorldBank efforts to involve beneficiaries and nongovernmental organizationsin the design and implementation of projects.

IX. Conclusion

The IMF and the World Bank Group make valuable contributions tothe global economic order. They deserve continued support from theUnited States. A few areas in which change would be desirable havebeen identified in the recommendations at the beginning of this Report.

Endnotes1 The Articles of Agreement of the International Monetary Fund have beenamended on three occasions, most recently effective Nov. 11, 1992. The textsappear at: original Articles, formulated July 22, 1944, effective Dec. 27,1945, 60Star. 1401, 2 U.N.T.S. 39; first amendment, effective July 28,1969, 20 U.S.T. 2775,726 U.N.T.S. 266; second amendment (which substituted a complete new text ofArticles and schedules in place of the former text), effective Apr. 1, 1978, 29U.S.T. 2203, U.N.T.S. ; third amendment, effective Nov. 11,1992, T.I.A.S.No. 11,898, 31 I.L.M. 1307 [hereinafter IMF Articles]. For general background onthe IMF, written from a legal perspective, see RICHARD W. EDWARDS, JR.,INTERNATIONAL MONETARY COLLABORATION (1985). See also IMF TREASURER'S DEP'T,IMF PAMPHLET SERIES No. 45, FINANCIAL ORGANIZATION AND OPERATIONS OF THEIMF (2d ed. 1991).2 The Articles of Agreement of the International Bank for Reconstruction andDevelopment have been amended once, effective Dec. 17, 1965. The originalArticles, formulated July 22,1944, effective Dec. 27,1945, appear at 60 Stat. 1440,2 U.N.T.S. 134; the amendment, effective Dec. 17,1965, appears at 16 U.S.T. 1942,606 U.N.T.S. 294 [hereinafter IBRD Articles]. For general background on theIBRD, written from a legal perspective, see IBRAHIM F.I. SHIHATA, THE WORLDBANK IN A CHANGING WORLD (1991).3 Articles of Agreement of the International Development Association, Jan. 26,1960, effective Sept. 24, 1960, 11 U.S.T. 2284, 439 U.N.T.S. 249 [hereinafter IDAArticles], For general background, see SHIHATA, supra note 2.


4 The Articles of Agreement of the International Finance Corporation havebeen amended on two occasions, most recently effective Sept. 1,1965. The textsappear at: original Articles, May 25,1955, effective July 20,1956, 7 U.S.T. 2197,264 U.N.T.S. 117; first amendment, effective Sept. 21, 1961, 12 U.S.T. 2945, 439U.N.T.S. 318; second amendment, effective Sept. I, 1965, 24 U.S.T. 1760, 563U.N.T.S. 362 [hereinafter IFC Articles].5 Convention Establishing the Multilateral Investment Guarantee Agency(MIGA), Oct. 11,1985, entered into force Apr. 12,1988, 241.L.M. 1598.6 Convention on the Settlement of Investment Disputes between States andNationals of Other States, Mar. 18,1965, entered into force Oct. 14,1966,17 U.S.T.1270,575 U.N.T.S. 159.7 22U.S.C.§286h.8 IDA Articles, supra note 3, art. I.9 U.S. DEP'T OF TREASURY, MULTILATERAL DEVELOPMENT BANKS: INCREASING U.S.EXPORTS AND CREATING U.S. JOBS (1994). See also John W. Head, InternationalBusiness Opportunities with the World Bank and Other Development Banks, INT'LCONTRACT ADVISOR (forthcoming)10 IDA Articles, supra, note 3, art. VI.11 IFC Articles, supra note 4, art. IV.12 IDA Articles, supra note 3, art. VI, § 5(6).13 IBRD Articles, supra note 2, art. IV, § 10.14 IMF Articles, supra note 1, art. XII, § 8.15 Agreement between the United Nations and the International MonetaryFund, Apr. 15,1948, entered into force Nov. 15,1947,16 U.N.T.S. 325 [hereinafterIMF-UN Agreement]; Agreement between the United Nations and theInternational Bank for Reconstruction and Development, Apr. 15, 1948, enteredinto force Nov. 15, 1947, 16 U.N.T.S. 341 [hereinafter IBRD-UN Agreement];Agreement between the United Nations and the International DevelopmentAssociation, entered into force Mar. 27, 1961, 394 U.N.T.S. 221; Agreementbetween the United Nations and the International Bank for Reconstruction andDevelopment (Acting on Behalf of the International Finance Corporation),entered into force Feb. 20,1957,265 U.N.T.S. 312.16 IMF-UN Agreement, supra note 15, art. I; IBRD-UN Agreement, supra note 15,art. I.17 IMF-UN Agreement, supra note 15, art. I; IBRD-UN Agreement, supra note 15,art, I.18 IMF-UN Agreement, supra note 15, art. IV; IBRD-UN Agreement, supra note15, art. IV.19 IBRD-UN Agreement, supra note 15, art. IV, para. 3.20 IMF-UN Agreement, supra note 15, art. VI; IBRD-UN Agreement, supra note15, art. VI.21 IMF-UN Agreement, supra note 15, art. X; IBRD-UN Agreement, supra note15, art. X.22 IMF-UN Agreement, supra note 15, art. II; IBRD-UN Agreement, supra note15, art. II.23 For recent appraisals from an economic perspective, see MANAGING THEWORLD ECONOMY: FIFTY YEARS AFTER BRETTON WOODS (Peter B. Kenen ed., 1994);BRETTON WOODS COMMISSION, BRETTON WOODS: LOOKING TO THE FUTURE (1994).


24 For a comparable analysis, see Stephen Zamora, Economic Relations andDevelopment, in 1 UNITED NATIONS LEGAL ORDER 503 (Oscar Schachter &Christopher C. Joyner eds., 1995).25 IMF Articles, supra note 2, art. I(i).26 See Toward Full Convertibility, 1995 IMF SURVEY 33.27 IMF Executive Board Decision No. 6056 (79/38) (1979), in SELECTED DECISIONSAND SELECTED DOCUMENTS OF THE INTERNATIONAL MONETARY FUND 85 (19th issue,1994). See also the Executive Board's other general decisions on the use of theIMF's financial resources, collected in id. at 55-192.28 See, e.g., MARGARET GARRITSEN DE VRIES, BALANCE OF PAYMENTS ADJUSTMENT,1945-1986: THE IMF EXPERIENCE (1987); INTERNATIONAL ADJUSTMENT ANDFINANCING: THE LESSONS OF 1985-1991 (C. Fred Bergsten ed., 1991).29 See EDWARDS, supra note 1, at 532-34.30 See IMF to Lend up to $17.8 Billion to Mexico, 1995 IMF SURVEY 33; IMF TakesExceptional Action to Support Mexican Program, 1995 IMF SURVEY 53. See alsoMexico Unveils Program of Harsh Medicine, WALL ST. }., Mar. 10, 1995, at A3;Argentina is Seeking More IMF Funding as Fallout from Mexican Crisis Continues,WALL ST. J., Mar. 10,1995, at A6.31 See generally MARGARET GARRITSEN DE VRIES, THE IMF IN A CHANGING WORLD(1986); BANKING CRISES: CASES AND ISSUES (V. Sundararajan & Tomas J.T. Balinoeds., 1991); JOSEPH GOLD, PROSPECTS FOR INTERNATIONAL LENDING ANDRESCHEDULINGS (SMU Institute Int'l Finance, 1988).32 See infra note 38 and accompanying text. See also Assessing the Reform Record inTransitional Economies, 1995 IMF SURVEY 2; Russia and the IMF to Sign Loan Pact of$6.25 Billion Amid Doubt on Reforms, WALL ST. J., Mar. 10, 1995, at A6. For criti-cism of the IMF's dealings with Russia, see Jeffrey Sachs, The Reformer's Tragedy:Hew the IMF Pusiied Russia to the Brink, N.Y. TIMES, Jan. 23,1994, at E17.33 For discussion of actions taken by international organizations and nationalcourts when dealing with uncertainties caused by fluctuating exchange rates, seeJOSEPH GOLD, LEGAL EFFECTS OF FLUCTUATING EXCHANGE RATES (1990). See also JOSEPHGOLD, EXCHANGE RATES IN INTERNATIONAL LAW AND ORGANIZATION (1988) (exhaus-tive examination of the international legal regime applicable to exchange rates).34 IMF Articles, supra note 1, arts. I(iii), IV, § 1.35 See Stephen Zamora, Regulating the Global Banking Network: What Role for theIMF?, 62 FORD. L. REV. 1953 (1994); Richard W. Edwards, Jr., InternationalMonetary Law: The Next Twenty-Five Years, 25 VAND. J. INT'L L. 209, 222-23 (1992).36 For appraisals of the World Bank on its 50th anniversary in 1994, see BRETTONWOODS COMMISSION, supra note 23; KENEN, supra note 23; Harry Owen, The WorldBank: Is 50 Years Enough?, 73 FOR. AFF., No. 5, at 97 (Sept./Oct. 1994). See alsoSHIHATA, supra note 2.37 See generally RICHARD W. RICHARDSON & JONAS H. HARALZ, MOVING TOMARKET: THE WORLD BANK IN TRANSITION (Overseas Development Council, 1995).38 See Cheryl W. Gray et al.. The Legal Framework for Private Sector Development ina Transitional Economy: The Case of Poland, 22 GA. J. INT'L & COMP. L. 283 (1992);Cheryl W. Gray et al., Hungarian Legal Reform for the Private Sector, 26 GEO. WASH.J. INT'L L. & ECON. 293 (1992).39 Agreement for the Establishment of the Joint Vienna Institute, entered into

mm


force Aug. 19,1994, 331.L.M. 1505.40 See Ibrahim F.I. Shihata, The World Bank and the Environment: A LegalPerspective, 16 MD. J. INT'L L. & TRADE 1 (1992); John W. Head, EnvironmentalConditionality in the Operations of the International Development Finance Institutions,I KAN. J.L. & POL'Y 15 (1991).41 For discussion of tension between the World Bank and the United Nationsrelating to Bank lending in the 1960s and human rights, see 1967 U.N. JURID.Y.B.109-31.42 See document entitled "The World Bank and the Promotion of HumanRights" submitted to the 1993 World Conference on Human Rights, U.N. Doc.A/CONF.157/PC/61/Add.l9 (1993). See also WORLD BANK, GOVERNANCE ANDDEVELOPMENT (1992); LAWYER'S COMMITTEE FOR HUMAN RIGHTS, THE WORLD BANK:GOVERNANCE AND HUMAN RIGHTS (1993); Ibrahim F.I. Shihata, The World Bank andHuman Rights: An Analysis of the Legal Issues and the Record of Achievements, 17DEN. J. INT'L L. & POL'Y 39 (1988).43 U.S. International Financial Institutions Act, 22 U.S.C. g 262m-7.44 See John W. Head, Suspension of Debtor Countries' Voting Rights in the IMF: AnAssessment of the Third Amendment to the IMF's Charter, 33 VA. J. INT'L L. 591(1993).45 IBRD Res. 93-10 (Sept. 23, 1993); IDA Res. 93-6 (Sept. 23, 1993). See generallyIBRAHIM F.I. SHIHATA, THE WORLD BANK INSPECTION PANEL (1994); David D.Bradlow, International Organizations and Private Complaints: The Case of the WorldBank Inspection Panel, 34 VA. J. INT'L L. 553 (1994). See also A World Bank PanelBreaks Legal Ground, NAT'L L.J., Dec. 19,1994, at 1.46 See Ibrahim F.I. Shihata, The World Bank and Non-Governmental Organizations,25 CORNELL INT'L L.J. 623 (1992). See also Bradlow, supra note 45.


C. Recommendation and Report on the International LaborOrganization*

Recommendation

BE IT RESOLVED, that the American Bar Association recommendsthat the United States continue to be an active, supportive member ofthe International Labor Organization;

BE IT FURTHER RESOLVED, that the American Bar Associationcommends the United States Government for creating and maintainingthe tripartite President's Committee on the ILO, Consultative Group onthe ILO, and Tripartite Advisory Panel on International LaborStandards, and urges accelerated progress by these bodies toward ratifi-cation of those ILO conventions on human rights that are consistent withU.S. law and practice.

Report

I. History and Functions

A bill recently introduced in the U.S. Senate would, among otherthings, prohibit the use of any appropriated funds for payment of U.S.membership in the International Labor Organization ("ILO"). Althoughthe bill has recently been withdrawn (for failure to obtain sufficientvotes to cut off debate), it could be reintroduced at any stage in its pre-sent form or in some other bill. A vote on the proposal in whatever formcould then occur at any time.

The ABA has a clear interest in supporting U.S. participation in theILO, which develops and monitors legal standards in its field world-wide.

The ILO is the oldest specialized agency in the United Nations sys-tem. Founded in 1919 (under Part XIII of the Treaty of Versailles) toabolish the "injustice, hardship and privation" which workers suffered

* This Recomendation was adopted by the American Bar Association House ofDelegates in August 1995. The Recommendation and its accompanying Report areone of a series of six related to selected specialized agencies of the United Nationsand the International Atomic Energy Agency developed by the InternationalInstitutions Committee of the Section of International Law and Practice, throughthe Committee's Working Group on United Nations Specialized Agencies and theIAEA. Members of the Working Group's Task Force on the International LaborOrganization, responsible for developing this Recommendation and Report, wereH. Francis Shattuck, Jr. (Chair), Frederic L. Kirgis, Jr. (Co-Rapporteur), Virginia A.Leary (Co-Rapporteur), John McDonald (Co-Rapporteur), Robert Gilbert, RichardD. O'Connor, and David Waugh (Advisor).


and to guarantee "fair and humane conditions of labor," it survived thedemise of the League of Nations and in 1946 became a specializedagency within the United Nations system. The ILO has continuouslyemphasized the importance of fair labor conditions as a means of main-taining social peace. The ILO was awarded the Nobel Peace Prize in1969, on its 50th anniversary. It celebrated its 75th anniversary in 1994;173 countries are members.

The ILO is unique in the UN system because it is the only agency inwhich representatives of the private sector are full and active partici-pants, with voting rights. Representatives of employer and employeeorganizations participate with government delegates in ILO decisionmaking, making it a tripartite process. This is consistent with the centralfeature of the modern workplace: consensus building between manage-ment and workers for greater productivity through management andunion-sponsored employee involvement mechanisms. It is also consis-tent with the advance of democracy around the world, as workersbecome more involved in decisions — in the workplace and elsewhere— that affect their lives and well-being.

Although the United States actively participated in the founding ofthe ILO, it did not join the organization until 1934. From 1977 to 1980 theUnited States left the organization because of allegations of politiciza-tion, erosion of tripartism, selective concern for human rights, and disre-gard for due process. The United States rejoined when it was satisfiedthat its objections were satisfactorily addressed. Since 1980 the UnitedStates has been an active and committed member of the Organization.U.S. participation demonstrates the concern in this country for the eco-nomic and social stability of nations, the rights of children and minori-ties, and the achievement of a level playing field for international com-merce.

Much of the current focus of the ILO is on human rights issues in theemployment context — especially discrimination in employment, equal-ity for women workers, forced labor, child labor, and freedom of associ-ation, as well as issues related to stimulating employment opportunities.The ILO has always recognized that there is a linkage between the rightsof workers and international trade, since inadequate labor standardslower the cost of production by shifting risks and expenses to workers,thus artificially lowering the cost of goods produced and giving them anunfair advantage in international trade. Recently the ILO GoverningBody has begun to consider how the sanctions procedure could bestrengthened in order to address unfair advantages created by this link-age. It has to do with a level playing field, which is an important matterfor the United States, as demonstrated during the recent NAFTAdebate.1


The ILO establishes its international labor standards by adoptingconventions (treaties) and recommendations. The conventions are bind-ing only on countries that choose to ratify them; recommendations arenot binding. The ILO also provides technical assistance on employmentmatters to member countries that request it.

II. Structure

The International Labor Conference is the ILO's plenary body. Eachmember country is represented by four delegates: two from the govern-ment, one representing employers, and one representing workers. Eachof them has voting rights.2 The employer and worker representatives arechosen from the most representative organizations in each country.American employers are represented by the United States Council forInternational Business; American workers by the AFL-CIO. TheConference, which meets in June of each year, adopts new conventionsand recommendations to be submitted to member countries, and moni-tors the application of existing labor standards. In addition, each secondyear it adopts a biennial budget, and each third year it elects theGoverning Body.

The Governing Body is the executive body of the Organization. It cur-rently consists of 56 members: 28 government representatives and 14representatives each from employers' and workers' organizations.3 Itmeets three times a year. Under the current ILO Constitution, the UnitedStates holds its seat on the Governing Body as one of ten countries ofchief industrial importance. (A pending amendment to this provisionhas not received enough ratifications to enter into force.)Representatives of other member countries are elected at the Conferenceevery three years, taking into account geographical distribution. Theemployers and workers elect their own representatives.

The present Director-General and head of the International Labor Officeis Michel Hansenne of Belgium. Two Americans, John Winant (1939-1941) and David Morse (1948-1970) have served as Directors-General.The Office is the permanent secretariat of the Organization. It employsabout 3000 persons at its headquarters in Geneva and in 40 field officesaround the world. Approximately half of its employees are now work-ing in the field.

III. Activities

The work of the ILO is carried out primarily through:

(1) The setting of international labor standards in the form ofconventions (subject to ratification by member countries), rec-ommendations, and guidelines;


(2) The monitoring of these standards by independent or tripartitecommittees of the Organization;

(3) Technical assistance to member states relating to labor andemployment matters;

(4) Research on issues relating to employment and labor.

A. Standard Setting

Since its founding, one of the most important activities of the ILOhas been the setting of international labor standards. The standards, inthe form of conventions, recommendations, or guidelines, are intendedto provide international benchmarks for national action. The 176 con-ventions adopted to date and the accompanying recommendations arereferred to collectively (and somewhat misleadingly) as the"International Labor Code." It is not a true code, since the conventionsare binding only on countries that have ratified them and the recom-mendations are not binding.

The conventions to which the ILO has devoted special attention, andwhich have received the highest number of ratifications, are the tendealing with human rights. They relate to freedom of association, collec-tive bargaining, forced labor, child labor, discrimination in employment,and equal pay.

Other conventions cover a wide range of subjects, including voca-tional training, occupational safety and health, maternity protection,social security, and protection of categories of workers such as seafarers,nursing personnel, indigenous peoples, and plantation workers. Inrecent years, conventions on part-time work, on chemical accidents, andon night work have been adopted. Some of the conventions have flexi-bility provisions designed to make it possible for states that could notmeet stringent standards to ratify the conventions. The number of ratifi-cations varies from convention to convention.4

The participation of governments, employers, and workers in thedrafting of conventions increases the likelihood that all relevant interestswill be taken into account. This in turn increases the likelihood that con-ventions will set realistic standards that can be complied with. Furtherassurance is provided by the long gestation period for a convention orrecommendation — usually about five years from the time when thesubject is chosen, during which time the text is carefully reviewed andrepresentatives of all the relevant interests are consulted.

B. Supervision of Standards

The ILO has developed an extensive system for the monitoring ofratified conventions. It includes submission of reports by member coun-tries on how well their law and practice conform to ratified conventions


and recommendations; evaluation of the reports by an independentCommittee of Experts composed of experts on labor relations, labor law,international law, and constitutional law;5 further evaluation by a tripar-tite committee of the Conference (called the Committee on theApplication of Standards) and in some cases by the Conference itself;6 acomplaints procedure allowing a country that has ratified a conventionto seek appointment of an independent Commission of Inquiry to con-sider whether another ratifying country is complying with the conven-tion; a similar procedure for complaints by employers' or workers' asso-ciations or delegates to the Conference; and a practice of informally con-tacting member countries about infractions.

In the field of freedom of association and trade union rights, theGoverning Body has established a Committee on Freedom ofAssociation. Like the Governing Body itself, the committee is tripartite— composed of representatives of governments, employers, and work-ers. It meets three times a year. By now it has considered more than 1500cases involving complaints of violations of freedom of association stan-dards by member countries, and has published its opinions.7

C. Technical Assistance and Research

In recent years, the ILO has emphasized technical assistance. It hasrecognized that in many cases, countries simply lacked the means orexpertise to improve labor practices. They needed external assistance.ILO programs provide assistance on vocational training, occupationalsafety and health, drafting of labor legislation, labor inspection, employ-ment programs, and workers' education. Most funds for these programscome from the UN Development Program or voluntary contributionsfrom member countries.

The ILO also carries out a number of research programs on mattersrelating to employment policy and other labor issues.

IV. The United States and the ILO

As mentioned previously, the United States has been an active par-ticipant in the ILO since 1934, with the exception of 1977-1980. TwoAmericans have served as Directors-General; the United States hasalways been represented on the ILO Governing Body; and U.S. employ-er and worker organizations participate regularly in ILO activities. Anumber of eminent Americans have served on the ILO Committee ofExperts which monitors ratifying countries' compliance with conven-tions. These Americans have included Benjamin Aaron, Archibald Cox,Paul Herzog, Frank McCulloch, and Earl Warren. Janice R. Bellace,Deputy Dean of the Wharton School of the University of Pennsylvania,is currently a member of the Committee.


The United States has ratified only 12 of the 176 ILO conventions,including only one of the major ILO human rights conventions. MostWestern European countries have ratified more than 60 ILO conven-tions, including all of the human rights conventions.

In the United States, since 1980 a Tripartite Advisory Panel onInternational Labor Standards (TAPILS), a legal subgroup of thePresident's Committee on the ILO, has examined ILO conventions todetermine whether there are any legal obstacles to ratification. TAPILSmembership consists of legal advisers representing the Departments ofLabor, State, and Commerce, the United States Council for InternationalBusiness, and the AFL-CIO. TAPILS has recently reviewed several con-ventions and found no substantial obstacles to ratification.

The ABA Committee finds the work of TAPILS useful and encour-ages it to work expeditiously to determine whether or not the UnitedStates could ratify more labor conventions.

V. Achievements

The main contribution of the ILO is in the area of social peace. TheILO has always recognized that it is necessary to establish and protectbasic rights of workers in order to maintain social peace. Since socialunrest in one country can spread to other countries, the ILO effort onbehalf of the rights of workers helps to maintain international peace.8

And since employers' groups are represented in the ILO, the effort nec-essarily takes their interests into account as well.

A. The ILO Supervisory System

The bulwarks of the ILO supervisory system are the independentCommittee of Experts, which meets once a year to review reports sub-mitted by governments regarding their compliance with ILO conven-tions they have ratified, the tripartite Committee on the Application ofStandards, which meets during each annual session of the InternationalLabour Conference, and the Governing Body's tripartite Committee onFreedom of Association, which — as noted above — meets three times ayear to consider complaints within its domain. These supervisory bodieshave operated even-handedly and in some instances quite courageously.

During the Cold War, for example, the ILO Committee of Expertsmaintained steady pressure on the Soviet Union regarding its noncom-pliance with the Forced Labor Convention of 1930, which the SovietUnion had ratified. The Forced Labor Convention requires each party tosuppress forced labor, subject to some exceptions such as one for thenormal civic obligations of citizens. The Russian Republic was directingindividuals to perform specific employment if — in the eyes of Russian


officials — they were not performing "socially useful work"; anotherregulation prohibited farm workers from moving out of a collective farmwithout the consent of a management committee. Both the Soviet Unionand its constituent Russian Republic gradually eased these rules as theCommittee of Experts maintained its watch over them.9

The Committee of Experts and the Conference Committee on theApplication of Standards have sometimes kept a critical eye on Westerngovernments as well, but the Organization has maintained a sense ofjust how far it should or should not push. For example, the Committeeof Experts has been critical of the British government for its refusal toallow employees at a government communications headquarters tobelong to a trade union. There has been heated debate within theConference Committee over the issue, with the Conference stoppingshort of censuring the U.K.10

The Governing Body's Committee on Freedom of Association hasheard complaints against a great many governments. Among otherthings, it has criticized the government of the Peoples' Republic of Chinafor its interference with workers' rights, including the denial of basiccivil rights in connection with the Tienanmen Square incident in 1989.11

More recently, it has considered serious complaints against Indonesiaand Peru. The complaint against Indonesia alleges such things as denialof workers' rights to establish and participate freely in organizations oftheir own choosing. Peru has been charged with physical violenceagainst trade union members, repression of demonstrations, and ran-sacking of union premises.12

ILO Commissions of Inquiry have also been important componentsof the supervisory system. Respondents in cases submitted toCommissions of Inquiry have included Portugal, Liberia, Greece, Chile,Haiti, the Dominican Republic, Poland, the then Federal Republic ofGermany, Romania, and Nicaragua.

The case against Poland arose out of Solidarity's efforts to free itselffrom the repression of the Communist Polish government. The govern-ment was charged with violating the ILO conventions on freedom ofassociation, which it had ratified. The three-member Commission ofInquiry heard testimony and considered documentary evidence. It con-cluded that the Polish government had violated ILO Convention No. 87,by suspending and then dissolving Solidarity and other unions. The casehad the effect of putting pressure on the government to ease up onSolidarity.13

The ILO supervisory system relies on the power of persistent per-suasion and the mobilization of shame against governments that fail tolive up to the obligations they have voluntarily undertaken. This hasproved to be both a strength and a weakness. Its obvious weakness is


the fact that it is not a sanction in the coercive sense known to domesticlaw. But that is also a strength: it does what can be done in an interna-tional system that would not tolerate a global sheriff with real power topunish sovereign governments for their failure to live up to acceptedlabor standards.

The ILO does this through the use of independent and tripartitebodies that have established good track records of impartiality. Theyhave made a difference despite the lack of any means to coerce govern-ments into compliance. The ILO Committee of Experts reports that, overthe last thirty years, there have been more than 2000 cases in whichnational legislation or practice was changed to meet the requirements ofa ratified convention following comments by one or more of the ILOsupervisory bodies.14

B. Workers' Rights and International Trade

The ILO is the only UN organization currently examining new andmore powerful mechanisms for dealing with enforcement problemscaused by the relationship between international trade and inadequateworking conditions. The issue has been raised in the GATT/WTO, butthat organization has not yet seriously dealt with it.

The ILO was founded on the understanding that working conditionsin one country are linked to those in other countries, and that minimumlabor standards, universally applied, would provide basic protection toworkers exposed to international trade. No single country, alone, couldmaterially raise its labor standards without increasing its costs andthereby jeopardizing its competitive status.

The ILO's system of international supervision of voluntarily ratifiedlabor standards is found wanting by those who would prefer trade sanc-tions as a more powerful tool for penalizing trading countries that vio-late the principles embodied in ILO standards. But sharp trade sanctionscan harm consumers more than they help labor; they also often lead toretaliation. Voluntary compliance, as in the ILO, removes suspicions ofprotectionist intent and thus avoids the risk of retaliation.

The issue thus is not just a matter of trying to enforce human rightssimply because it is the right thing to do; it is also an economic matter.Since the issue potentially affects international trade, it is in the UnitedStates' interest to support a reasonable effort by the ILO to raise workingstandards in any trading country that has significantly lower standardsthan the United States has — especially if that country exports its low-labor-cost goods to the United States. Consequently, the United Statesgovernment has been active in raising the issue internationally, includ-ing its efforts during the adoption of the North American Free TradeAgreement.


The ILO has not yet reached any conclusions on this issue. TheOrganization is currently undertaking a research project to determinewhat might constitute a package of minimum labor standards to whichall states should adhere. Since existing U.S. standards are so much high-er than those in the ILO member countries where the primary concernlies, it is unlikely that the ILO study would call for any significantchange in U.S. standards. In any event, the results of the study wouldnot result in any obligation for the United States in the absence of itsconsent.

C. Private Sector Representation (Tripartism)

As has been noted earlier in this report, tripartism in the ILO is intune with current concepts of effective management-labor relationships.Moreover, the principle of democracy underlying the ILO's tripartism,which gives a direct, nongovernmental voice and vote to people whowill be affected by what the Organization does, could well be applied tosome other international organizations dealing with current problemssuch as environmental protection.15 In a rudimentary form, the principleis already at work in some organizations and conferences outside theILO, but it is restricted to informal input from nongovernmental organi-zations, which are not permitted to participate in drafting conventionsand other legal instruments. Public interest groups and other privateassociations are actively seeking a more significant role.16 Thus, thedemocratic principle underlying tripartism is anything but an anachro-nism, despite what some ILO critics have said about it.17

VI. Conclusions

The ILO, like many other large organizations, could and should bemore efficient than it is. It has grown substantially over the years, andprobably could now be streamlined somewhat without losing its effec-tiveness. To say, however, that it should be trimmed in size and mademore efficient is not to say that it should be abandoned.

U.S. participation in the ILO cannot be assessed simply by looking atthe cost of membership. It is obviously in the interest of the UnitedStates to promote social peace in the world. The ILO is dedicated to thatgoal, and has pursued it as evenhandedly as could possibly be expected.Its tripartite decision-making process helps to ensure evenhandedness.

Moreover, the ILO has enjoyed a significant measure of success inarticulating fair and attainable labor standards, and in supervising howthose standards are actually applied by countries that have agreed tothem. It has built a substantial body of case law that supplies precedentsfor the consistent, predictable application of standards, much as case lawin the United States does.

I


The case for continued U.S. support of the ILO does not rest aloneon principles of social peace. There is also a strong economic reason tostay the course, and to do so vigorously. In the context of the new eco-nomic paradigm in which the Uruguay Round and NAFTA are impor-tant steps towards the elimination of trade barriers, it would be counter-productive for the United States to turn its back on the one proven inter-national mechanism for leveling the playing field of labor costs as theyaffect traded goods. The principal mechanism is found not in GATT orNAFTA, but rather in the ILO. As long as the United States remains anactive member of the ILO, it will heavily influence the terms of socialregulation that in turn influence the terms of trade.

U.S. influence would be even stronger if it were a party to more ofthe key ILO conventions than it now is. Then the United States couldseek compliance by other ILO members without being open to thecharge that it tries to enforce obligations that it is not willing to haveenforced against it.

It would be counterproductive for the United States to turn its backon the ILO. The $64 million funding level proposed by President Clintonfor the ILO for fiscal year 1996 is a small price to pay for the only inter-national organization that not only fosters social peace in the workplace,but also seeks to redress the unfair comparative advantage some coun-tries that exploit their own workers enjoy over the United States in inter-national trade.

Without U.S. participation, the ILO could not hope to achieve thesegoals. The United States would be among the losers.

Endnotes1 The Business Roundtable, comprised of chief executive officers of leadingAmerican corporations, has called on the United States to upgrade its participa-tion in the ILO. Among other things, the Business Roundtable said the UnitedStates should promote efforts to improve the ILO's supervisory machinery.Business Roundtable Statement, International Trade and Investment and Labor:Constructive Approaches (May 9,1995).2 ILO CONST, art. 3.3 Id. art. 7.4 The conventions and recommendations adopted up to 1991 may be found in1-2 ILO, INTERNATIONAL LABOUR CONVENTIONS AND RECOMMENDATIONS 1919-1991(1992).

Each year this committee publishes its report under the designation,International Labour Conference, Report III, Part 4A: Report of the Committee ofExperts on the Application of Conventions and Recommendations.

The debates and action of the Committee on the Application of Standards,and of the Conference itself, are published each year in the Record of Proceedingsof the International Labour Conference.


7 The opinions of the Committee on Freedom of Association are published inthe ILO Official Bulletin, Series B.8 The link between social justice and international peace has been recognizedsince the inception of the ILO in 1919. It is expressly set forth in the ILOConstitution's preamble, which refers to unjust labor conditions on such a scalethat they can imperil the peace and harmony of the world.9 See the reports of the Committee of Experts in successive years beginningwith Int'I Labour Conf., 59th Sess., Rep. Ill, Part 4A, at 88 (1974).10 See Int'I Labour Conf., 71st Sess., Rep. Ill, Part 4A, at 193 (1985); Int'I LabourConf., 76th Sess., Rep. Ill, Part 4A, at 234 (1989); Int'I Labour Conf., 76th Sess.,Record of Proceedings, at 26/54 (1989); FIN. TIMES, June 15,1995, at 8.11 Case No. 1500,73 ILO OFFICIAL BULL., Series B, No. 1, at 99 (1990).12 WORLD OF WORK [the magazine of the ILO], May/June 1995, at 37.13 See Report of the Commission Instituted under Article 26 to Examine the Complainton the Observance by Poland of the Freedom of Association and Right to OrganizeConventions, 67 ILO OFFICIAL BULL., Series B, Special Supp. (1984). The membersof the Commission were from Greece, Switzerland, and Venezuela.14 See Int'I Labour Conf., 81st Sess., Rep. Ill, Part 4A, at 9 (1994).15 See, e.g., Geoffrey Palmer, New Ways to Make International Environmental Law,86 AM. J. INT'L L. 259, 280-81 (1992). Palmer is a former Prime Minister of NewZealand.16 See, e.g., David A. Wirth, Reexamining Decision-Making Processes in InternationalEnvironmental Law, 79 IOWA L. REV. 769 (1994).17 The same principle underlies a recent step taken by the World Bank. TheBank has established an independent Inspection Panel consisting of experts nototherwise affiliated with it. The Panel will investigate complaints by privategroups of people adversely affected by a particular Bank project, in order todetermine whether the Bank has followed its own policies and procedures indesigning or carrying out the project. The results of the Panel's investigations areto be made public. 1994 WORLD BANK ANN. REP. 74. On the need for greater pub-lic participation in the UN itself, see ERSKINE CHILDERS & BRIAN URQTJHART,RENEWING THE UNITED NATIONS SYSTEM 171-81 (1994).


D. Recommendation and Report on the International Atomic EnergyAgency*

Recommendation

BE IT RESOLVED, that the American Bar Association recommendsthat the United States Government continue and enhance its support ofthe International Atomic Energy Agency, and take the following steps,with the cooperation and agreement of other nations whenever appro-priate.

A. Take positive steps to enhance the safeguards system, which isintended to provide assurances of compliance by non-nuclear-weapon states to their commitments under the Non-Proliferation Treaty ("NPT") and provide early warning in theevent of any violations. To this end, and in support of steps theAgency has initiated since the 1991 Gulf War which revealedmajor shortcomings, the United States Government should:

provide to the Agency, as appropriate, and encourageother states to do so also, information from national techni-cal means and other sources relating to suspicious activi-ties or potential violations of the NPT, any safeguardsagreements, or any UN Security Council resolution relat-ing thereto;support inspections by the Agency at premises notdeclared by non-nuclear-weapon states parties to the NPTin order to determine whether they contain any type ofnuclear activities and, if they do, to perform regularinspections of any nuclear materials and facilities so locat-ed;insist that the Agency, as a condition to any agreement tocarry out safeguards in states not parties to the NPT as inall non-nuclear-weapon states parties to the NPT, subject

1.

2.

3.

* This Recommendation was adopted by the American Bar Association House ofDelegates in August 1995. The Recommendation and its accompanying Reportare one of a series of six related to selected specialized agencies of the UnitedNations and the International Atomic Energy Agency developed by theInternational Institutions Committee of the Section of International Law andPractice, through the Committee's Working Group on United NationsSpecialized Agencies and the IAEA. Members of the Working Group's TaskForce on the International Atomic Energy Agency, responsible for developingthis Recommendation and Report, were H. Francis Shattuck, Jr. (Chair), PaulSzasz (Rapporteur), George Bunn, John B. Rhinelander, and John H. Shenefield.


B.

C.

all nuclear materials and facilities to full-scope safeguards,including inspections;

4. insist that the Agency rescind permission to transfer con-trolled items, such as nuclear-powered submarines, to non-weapon military activities to which no safeguards apply.

Review and revise its historic position and insist that theAgency's safety standards, or authorized equivalents, beapplied to all nuclear facilities that have received internationalassistance, whether commercial or non-commercial, includingall those to which the Agency applies safeguards pursuant tothe NPT or otherwise.

Consider whether there is a need to separate promotional andcontrol activities relating to nuclear energy, including the rela-tive merits of the following options:

Retaining the current structure of the Agency, and therebycontinuing to undertake both promotional and controlactivities through a single entity; orReplacing the Agency with the following:a. a worldwide International Energy Agency with amandate relating to all types of energy, to which theIAEA's power-related activities would be transferred;b. an International Arms Control Agency with a man-date relating to controls under all multilateral arms limita-tion and disarmament conventions, which would take overthe IAEA's safeguards, carried out pursuant to the NPT orotherwise, and other monitoring responsibilities; andc. an International Nuclear Safety Agency, which mighteither be an independent organization, or be a joint sub-sidiary organ of the World Health Organization (WHO)and the International Labour Organisation (ILO), or possi-bly be attached to the proposed International EnergyAgency;while transferring the IAEA's isotope-related activities tosuitable existing agencies of the United Nations system.

1.

2.

...The Recommendation relates to strengthening the safeguardsadministered by the [International Atomic Energy] Agency [("IAEA" orthe "Agency")] against diversion of fissile materials into nuclearweapons, to increasing adherence to safety standards developed by theAgency, and to a possible division of the Agency's functions.


I. The Beginnings of the Agency

It is the singular misfortune of the Agency that it was founded in thelate 1950s on two major misconceptions relating to the course of devel-opment of nuclear energy: that this would rapidly become a major if notessential source of electrical energy in many countries; and that therewould be only a limited number of suppliers of nuclear materials andequipment. Consequently, if these suppliers were all to cooperate withthe Agency (which they could control through an appropriately struc-tured Board of Governors), then the IAEA would become the central fac-tor in a vital economic activity and would be in a position to regulatethat activity in the recipient countries (to prevent diversion to bomb pro-duction and to ensure safety) by controlling the supply of materials anditems essential to their continued power production. The unrealizabilityof such a. program was a natal flaw that has required the Agency tomodify both its goals and the means to achieve them.1

The impulse for the creation of the IAEA was given by PresidentEisenhower's "Atoms for Peace" address to the UN General Assemblyin December 1953, when in the wake of Stalin's death it was thoughtpropitious to essay a modest easing in U.S.-U.S.S.R. tensions and at thesame time benefit the world community by having each of the two mainnuclear-weapon states transfer to the proposed Agency some of the fis-sile materials in their stockpiles (thus reducing these). The new organi-zation could make these materials available, subject to appropriate con-trols, to other states wishing to establish nuclear-generated electricalpower programs. After some three years of difficult negotiations, theIAEA was established with a somewhat broader agenda: "to accelerateand enlarge the contribution of atomic energy to peace, health and pros-perity throughout the world."2 In many ways the new Agency was mod-eled on the U.S. Atomic Energy Commission, and like it its principaltask was to be the furtherance of nuclear power subject to controlsagainst military diversion and to ensure safety, with other activities,such as isotope-related research, of secondary importance.

When the Agency started its operations in 1958 with some eightymembers it was faced with the difficulty that readily available nuclear-generated electrical power was then still almost as far down the pike aswhen Eisenhower had spoken, and certainly was not an immediateprospect for most of its members. Indeed, most of these were not at adevelopmental stage that would have allowed them to utilize such atechnology, except as an entirely foreign implant. Consequently, theAgency had to develop activities that would maintain the interest of thebulk of its membership and also prepare it for the eventual arrival ofnuclear power. Thus, from the very beginning, the Agency's programs


were skewed towards technical assistance and isotope-related activities,primarily in agriculture, medicine, and industry.

As to the organization's principal objective, assistance in the devel-opment of nuclear power, its activities never became more than periph-eral. Largely this was due to the attainment of electrical power genera-tion turning out to be much more complicated and expensive than origi-nally foreseen, so that significant projects to that end were alwaysbeyond the technical and above all the material capacity of the Agency— whose annual budget was never more than a minor fraction of thecost of a medium-size power reactor.

Consequent on the lag in the establishment of nuclear reactors forpower generation, the Agency's safeguards also received an unevenstart. Instead of constituting a control on Agency-assisted projects,which were few in number and insignificant from a potential militarypoint of view, once the Agency's safeguards rules were established theirfirst extensive application was to U.S.-assisted overseas projects (thesafeguards under which the U.S. assigned to the Agency). Anotherunexpected factor was that during the initial years the U.S.S.R., whichhad initially opposed the plans for establishing the Agency on theground that it would lead to uncontrollable proliferation, activelyopposed strong safeguards — on this point supporting India and otherimplacable opponents. Some years later the U.S.S.R. once more switchedpositions and from then on (including Russia as the U.S.S.R.'s successor)became a partner of the U.S. on most safeguards proposals.

II. The Agency's Current Activities and Management

A. Safeguards

Objectively, and certainly from the point of view of most developedcountries, the most important activity of the Agency is its safeguards —that is, the control measures to prevent a non-nuclear-weapon state fromdiverting to nuclear weapons any nuclear materials ostensibly devotedto peaceful purposes — which the Agency carries out pursuant toArticles III.A.5 and XII of its Statute. The safeguard control measures arenot, as was originally conceived, an ancillary function of the Agency'snuclear-power programme, but rather since 1970 constitute the imple-mentation of one of the world's primary arms control measures, theNon-Proliferation Treaty ("NPT" or the "Treaty"),3 under Article III.3 ofwhich all non-nuclear-weapon states parties to the Treaty must concludesafeguards agreements with the IAEA. Consequently, in most of thecountries in which safeguards are carried out, this is done not to controlmaterials or equipment that the Agency has made available, nor evensuch as have necessarily been imported from some other state, but

I

1


rather to control all declared peaceful nuclear activities — whether theseare based wholly or in part on foreign assistance or are of purely domes-tic origin. Indeed, from the point of view of the efficacy of these controls,there is no doubt about the superiority of so-called "full-scope safe-guards" (i.e., those that apply controls to all peaceful nuclear materialsand facilities in a country rather than only to those that have beenreceived from or been produced with direct or indirect assistance from aforeign state). While full-scope safeguards are applicable to all non-nuclear-weapon states parties to the NPT, they do not apply to non-par-ties, which at present include India, Israel, and Pakistan. Further, thesafeguards do not apply under the terms of the NPT to any of the facili-ties in the five nuclear-weapon states, although the U.S. and others havevoluntarily put some of their peaceful programs under IAEA safe-guards.

Over the years opponents of safeguards did succeed in whittlingthem down, from the very strict ones authorized (but not commanded)by the IAEA's Statute; to those set out in a series of "SafeguardsDocuments"; to those authorized in the respective safeguards agree-ments with states; to those provided for in the subsidiary implementa-tion arrangements; to those that were actually carried out under prevail-ing circumstances. This constitutes a hierarchical scheme, in which nolower measure can ever be stricter than what is authorized by the high-er, and in which any concession reluctantly made to one state generallyhas to be applied to all.

Nevertheless, for many years the Agency considered that its safe-guards controls, while necessarily not perfect, were at least adequate toenable it to raise a hue and cry if a significant (i.e., from the point of viewof making a minimum size bomb) quantity of nuclear materials couldnot be accounted for — or rather when it was deliberately preventedfrom carrying out controls required for such an accounting. It was clear,of course, that carrying out full-scope safeguards was dependent on thehonesty of at least the initial reports made by the controlled country asto the peaceful nuclear activities that were being carried out within it, asthe Agency had neither the legal (under the applicable safeguards agree-ment) nor the material capacity to roam around freely so as to detect anyconcealed nuclear activities or installations. However, the Agency actedas though what it might not be able to detect directly might neverthelessbe hinted to it by states with effective intelligence services or withnational technical means (e.g., low earth-orbit satellites) that could noteif something suspicious went on within the borders of a controlled coun-try — whereupon the Agency could, after some legal/political maneu-vering, have its Board of Governors authorize a special inspection toobserve more closely undeclared but suspicious facilities or activities.


Until 1990, it certified annually that no state under safeguards had likelysucceeded in diverting, whether covertly or overtly, a significant quanti-ty of nuclear materials.

This complacency was shattered by the discoveries made in Iraq inthe wake of its defeat in the Gulf War. Even though that country hadsince 1972 been under full-scope safeguards under a safeguards agree-ment* required because of its participation in the NPT and even thoughspecial attention had been focused on that country in the wake of the1981 Israeli destruction of its one declared reactor, it was discoveredafter the war by inspectors on the ground that Iraq had advanced quitefar on several parallel tracks towards building nuclear weapons. Thesediscoveries were made not as a result of normal IAEA safeguards, but inthe course of unique special inspections, carried out in part by theAgency and in part by a special UN Commission, both acting under theauthority of the UN Security Council. The fact that previously theAgency had had no hard evidence or even suggestion of the extent ofthese activities constituted not so much a failure of the Agency's overtsafeguards system, because it was always recognized that even full-scope safeguards could not normally detect deliberately unreportedactivities, as it did failure of the implicit backup through the above-men-tioned national intelligence services, which in this instance had failedcompletely. Neither the CIA, nor Mossad, nor other reputedly effectiveservices seemed to have understood what was really going on in thatextremely closed society. The Iraqi debacle has led to a re-examinationof important premises of the safeguards system, and in particular to astrengthening of the rules relating to special inspections — the first realtightening of any aspect of the safeguards system since its establishment.

Soon, however, the difficulties of implementing an NPT-based safe-guards agreement5 against determined opposition were demonstrated ina different context by North Korea. Here suspicion was aroused by adiscrepancy as to amounts of plutonium separation noted by Agencyinspectors, as well as by information obtained from a secondary source(i.e., U.S. satellite images showing probable waste sites), but were hard-ened by the refusal of the target country to allow certain special inspec-tions, which could only be explained rationally by a desire to conceal adiversion. The Agency was thus in a position to inform the SecurityCouncil of this likelihood — that is, to strike the international alarm —which is all the Agency could ever expect to do to prevent diversion.

Because at a recent conference the parties to the NPT extended itsterm indefinitely, the Agency's safeguards responsibilities under thatTreaty have similarly been prolonged. The NPT parties at the same timealso declared that "Decisions adopted by the [IAEA's] Board ofGovernors aimed at further strengthening the effectiveness of Agency


safeguards should be supported and implemented and the Agency'scapability to detect undeclared nuclear activities should be increased."

Finally, it should be noted that the Agency's post-Gulf War actionsin Iraq were justified by the charge under its Statute and its RelationshipAgreement with the United Nations6 to assist the Security Council at thelatter's demand. Similar justifications would have to be found if theAgency were to be charged, as has been proposed, with implementingthe verification system of a Comprehensive Test Ban Treaty.

B. Protection of Health and Safety

On its face, the Agency's right and obligation to impose controlsrelating to the protection of health and safety are, under its Statute,almost precisely the same as those relating to safeguards. The drafters ofthat instrument evidently considered that failures to maintain a safenuclear environment would constitute a danger to the world communitycomparable to nuclear weapons proliferation.

Notwithstanding, the Agency almost from the beginning took acompletely different approach in respect of these two control activities.Yielding to the strongly held position of practically all member states,that safety is basically a domestic concern, the IAEA never attempted toimpose any real safety controls over nuclear activities — not even withrespect to the few that were directly assisted by the Agency. Only in thewake of the almost disaster of Three Mile Island and the massive one ofChernobyl was it recognized that such events could not only have sig-nificant material trans-boundary effects, but ako injure the prospects ofpeaceful nuclear activities throughout the world. Yet, even Chernobylwas not able to reverse the rejection of international controls in this area,as appears clearly from the 1994 Nuclear Safety Convention7 developedby the Agency after extensive studies and negotiations, which reaffirms"that responsibility for nuclear safety rests with the State having juris-diction over a nuclear installation" and "entails a commitment [by statesparties] to the application of fundamental safety principles for nuclearinstallations rather than of detailed safety standards."

Aside from the failure to impose its safety standards, which was alsodue to the absence of any external treaty regime (such as the NPT) thatwould have required states to accept such standards and Agency con-trols, it also seems likely that the Agency's functions as a promotor ofnuclear power tended to interfere with impulses to take safety reallyseriously when advising states about the design of existing or futurefacilities. Safety (unlike safeguards) can be very expensive, and mayaffect the competitiveness of nuclear power in particular situations.Also, some three decades of practically accident-free operations world-wide tended to justify complacency.


This having been said, one must hasten to add that the Agency hasaccomplished something of great utility in this field: the continuousdevelopment of a series of safety standards for all types of nuclear activ-ities. Utilizing its own staff, as well as national experts and those ofother international agencies, in particular the WHO and ILO in the UNsystem and regional ones such as the ENEA of OECD and Euratom, ithas promulgated a series of standards that can be utilized directly, orincorporated into national or international legislative or regulatoryinstruments. While perhaps not essential for the few most highly devel-oped states able to create such standards for themselves — though eventhese may benefit when international uniformity is required, such as intransport regulations — most countries could not through their ownefforts create health and safety instruments of such high quality.

C. Nuclear-Related International Legislation

Over the years, the Agency has sponsored a number of internationaltreaties related to the civil uses of nuclear energy. The first of these wasthe Vienna Convention on Civil Liability for Nuclear Damage,8 whichtook decades to enter into force for a minimal number of states and forvarious fundamental reasons is unlikely to accomplish the missionimpossible for which it was designed; this is largely also true of the[Brussels] Convention on the Liability of Operators of Nuclear Ships.9

More useful is the Convention on the Physical Protection of NuclearMaterials.10 The two post-Chernobyl treaties, the Convention on EarlyNotification of a Nuclear Accident11 and the Convention on Assistancein the Case of Nuclear Accident or Radiological Emergency,12 governmatters for which the formal treaty structure appears somewhat tooheavy and clumsy but which nevertheless are helpful. Finally, the newConvention on Nuclear Safety,13 though considerably compromisedduring the years of its negotiation, still does impose some minimal safe-ty-related obligations on the parties and thus tends to internationalize amatter that most states with nuclear activities still insist is primarilydomestic. Work has started on a convention on the safety of radioactivewaste management.

D. Other Activities

The other activities of the Agency can roughly be lumped underheadings such as research and development and technical assistance,with many in effect fitting into both these categories. Many are no doubtuseful, though few are really essential to the role of the IAEA as con-ceived by the U.S. Isotopes or other radiation sources have become use-ful tools in aspects of agriculture, medicine, industry, and other


research. But, as these techniques become well-established, they take onthe nature of tools that are better wielded by those expert in the trade inwhich they are used rather than by the toolmaker himself. For the nonce,the Agency cannot afford to surrender these and similar activities entire-ly, for it would risk becoming irrelevant to the bulk of its membership,whose sole contact with the organization would then be through themild burden of safeguards.

E. Governance

Like all similar international organizations (e.g., the specializedagencies), the IAEA is governed by an all-member General Conference,a restricted Board of Governors, and a Director General who heads theSecretariat. Over the years, the power relations between these organshave somewhat shifted. The Board of Governors is clearly the centralorgan of the Agency. Though nominally the General Conference is hier-archically superior, in effect it can take few actions without a recommen-dation of the Board. The latter meets more frequently, and its membersare always present in Vienna though the number of its formal sessionshas been far reduced.

One distinct change that has occurred is in the composition of theBoard. Originally it had 23 members, only 10 elected by the Conferencewhile the majority were co-opted by the Board from a rather restrictedgroup of nuclear suppliers. Now the Board has 35 members, of whom 22are elected by the Conference — to which it has therefore become farmore responsive. Thus, the originally designed dominance of the suppli-ers has waned.

F. Financing

Article XIV of the IAEA Statute foresees that the Agency will havean administrative budget (including unreimbursed safeguards expenses)to be met from assessed contributions, that it would earn money fromoperations in accordance with a scale of charges established by theBoard, that it may receive voluntary contributions, and that it might bor-row money (solely on its own credit), presumably for capital expendi-tures. The budget is drafted annually by the Director General (though onthe basis of biennial programs established in the framework a rollingsix-year plan), and recommended by the Board to the GeneralConference (which can only approve it or send it back to the Board).

For 1995, the total budget approximated U.S.S319 million, of which$203 million (63.6%) was raised by assessment on member states (on ascale adapted from that of the UN), $11 million (3.4%) from miscella-neous services and sales, $9 million (2.8%) from other UN system organ-


izations for joint programs, $63 million (19.7%) from voluntary contribu-tions for technical assistance, and $36 million (11.3%) from contributionsto special projects. Of the expenditures, $90 million (28.2%) was spentfor isotope-related activities (mostly in the form of technical assistance),$77 million (24.1%) for safeguards, $23 million (7.2%) for nuclear-power-cycle-related activities, $32 million (10.0%) for health and safety, $6 mil-lion (1.9%) for reimbursed work, and $91 million (28.5%) for manage-ment and other overhead. There have never been any large capital pro-jects requiring loans, nor has the Agency engaged in the sale of or othertransactions in nuclear materials.

G. Coordination

The Agency is part of the UN system of organizations, not technical-ly as a "specialized agency" as foreseen in UN Charter Articles 57 and63, but still bound to the UN by a Relationship Agreement substantivelyidentical to those of most similar institutions (e.g., ILO, FAO, WHO,UNESCO) and like these organizations less independent than theBretton Woods institutions. It also has Relationship Agreements withmany of these UN-related agencies, as well as Cooperation Agreementswith several regional organizations.

As pointed out above, the Agency's principal substantive activity isthe implementation of NPT-required safeguards. In recent years it has inaddition carried out extensive controls in Iraq on the behest of theSecurity Council. Other activities are undertaken on behalf of commonefforts such as those for the protection of the environment, in which con-nection Agency collaborators include UNEP, IMO, and the BaselConvention Secretariat.

HI. The Future of the Agency

There are two important structural problems relating to the Agency:one inherent in itself, and one in the system within which it functions.The former is that the Agency combines the functions of promoting andof controlling nuclear energy — an incompatibility that years ago led tothe splitting up of the U.S. Atomic Energy Commission eventually intothe DOE and the NRC — and that is specifically condemned for nationalorganizations by the Agency-sponsored new Nuclear SafetyConvention. No matter how honestly they might try, nuclear promotersare too often incapable of the tough love required to insist on the greatcost of additional safety measures or to give a true assessment of amishap.


The external problem is that the world lacks a real energy agency,one capable of assessing on a continuing basis the competing alterna-tives and choosing the one most suitable for a particular task; one whosemandate is not to promote a particular form of energy but to promoteregard for basic values, such as all aspects of the environment, the prop-er balancing of current and future inputs and outputs, energy conserva-tion, and social and economic costs.

The logical response therefore is to establish an International EnergyAgency (not the limited European one created in the wake of the 1974 oilshock) into which the IAEA's nuclear power functions would be folded,and an International Arms Control Agency which would take over safe-guards pursuant to the NPT as well as the controls for the ChemicalWeapons Convention14 and for a Comprehensive Test Ban Treaty andany limitations agreed on the trade in or the production of conventionalarms. Nuclear safety might require a specialized institution, anInternational Nuclear Safety Agency, which might either be an indepen-dent organization, or be a joint subsidiary organ of the WHO and ILO,or possibly be attached to the proposed International Energy Agency.Activities such as the many isotope-related ones would be transferred tothe organization responsible for the substantive field in which radiationtechniques have proven or may prove to be useful, e.g., to FAO, WHO,UNIDO.

If this separation of functions is too ambitious a goal in the shortrun, the following more limited reforms should in any event be imple-mented:

(a) Safeguards should, on the basis of the Agency's experience inIraq and North Korea, as well as developments in countriessuch as in India, Pakistan, Israel, and South Africa, be madefull-scope for all non-nuclear weapons states. Also, as has hap-pened since the Gulf War, the Agency should be unshackledfrom restrictions to officially declared facilities and materials,so as to allow (obviously subject to negotiated restrictions) forinspections any place and time — as originally foreseen inArticle XII.A.6 of the IAEA Statute and as largely acceptedunder the Chemical Weapons Convention. This would mean:(i) that the Agency would no longer agree to carry out safe-guards in non-NPT parties that are restricted merely to certainnuclear materials and facilities, but would insist that, as in allnon-nuclear-weapon NPT states, all nuclear materials andfacilities be subject to controls; (ii) the permission to transfercontrolled items to non-weapon military activities (e.g., anuclear submarine reactor) to which no controls apply, shouldbe rescinded; (iii) the Agency should be given considerable


freedom to perform at least cursory inspections of unreportedpremises, merely to determine whether they contain any typeof nuclear activities — and if they do, regular inspectionsshould be carried out.15

(b) Safety controls should be greatly enhanced, to include therequirement of substantive adherence to the Agency's safetystandards (as developed from time to time) and compulsorymonitoring of compliance by major facilities (in particular,reactors), at least in respect of all nuclear activities that haveany international aspect. This would mean that the Agencycould insist that its safety standards—or authorized equiva-lents—be applied at least to all nuclear facilities that havereceived any international assistance (even if supplied on afully commercial basis), including perhaps all those to which itapplies safeguards, whether pursuant to the NPT or otherwise.

Endnotes1 See generally LAWRENCE SCHEINMAN, THE IAEA AND WORLD NUCLEAR ORDER56-80 (1987).2 IAEA Statute, Oct. 26,1956, art. II, 8 U.S.T. 1093,276 U.N.T.S. 3.3 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T.483, 729 U.N.T.S. 161. Safeguards are also carried out under the Latin AmericanTlatelolco Treaty, Feb. 14, 1967, 22 U.S.T. 762, 634 U.N.T.S. 281, and the SouthPacific Rarotonga Treaty, Aug. 6,1985, 241.L.M. 1440, usually in association withNPT-based controls.4 Agreement for the Application of Safeguards in Connection with the Treatyon Non-Proliferation of Nuclear Weapons, Feb. 29,1972, IAEA-Iraq, 872 U.N.T.S.219.5 Agreement for the Application of Safeguards in Connection with the Treatyon Non-Proliferation of Nuclear Weapons, July 1, 1968, IAEA-Dem. People'sRep. of Korea, IAEA/INFCIRC/403, 33 I.L.M. 319, U.N.T.S. Reg. No. 28,986.Safeguards had previously been applied under a non-NPT agreement set out inAgreement for the Application of Safeguards to the Research Reactor Facility(IRT), July 20,1977, IAEA-Dem. People's Rep. of Korea, 1065 U.N.T.S. 525.6 Article III.B.4 of the IAEA Statute, supra note 2, requires the Agency to submitreports on its activities "when appropriate, to the Security Council," and "if inconnexion with the activities of the Agency there should arise questions that arewithin the competence of the Security Council, the Agency shall notify theSecurity Council... and may also take the measures open to it under this Statute,including those provided in paragraph C of article XII [i.e., to carry out inspec-tions provided for in safeguards agreements and to impose sanctions in case ofnon-compliance by a safeguarded state]." Article IX of the UN/IAEARelationship Agreement, Oct. 23,1957, and Nov. 14,1957, 281 U.N.T.S. 369, pro-vides that "[t]he Agency shall co-operate with the Security Council by furnish-ing it at its request such information and assistance as may be required in the


exercise of its responsibility for the maintenance or restoration of internationalpeace and security."7 June 17,1994, IAEA/INFCIRC/449, 33 I.L.M. 1518.8 May 21,1963, IAEA Legal Series No. 2, at 501-12, IAEA Legal Series No. 4, at3-15,1063 U.N.T.S. 265.9 IAEA Legal Series No. 4, at 36-46.1° T.I.A.S. No. 11,080, IAEA/INFCIRC/274/Rev.l, U.N.T.S. Reg. No. 24,631.11 Oct. 29,1986, IAEA/INFCIRC/335, 25 I.L.M. 1377, U.N.T.S. Reg. No. 24,404.!2 Sept. 26,1986, IAEA/INFCIRC/336, 25 I.L.M. 1369, U.N.T.S. Reg. No. 24,643.13 Supra note 7.14 Convention on the Prohibition of the Development, Production, Stockpilingand Use of Chemical Weapons and their Destruction, Jan. 13, 1993, U.N. Doc.CD/CW/WP.400/Rev.l, 32 I.L.M. 800.15 At present, the IAEA is moving towards accomplishment of (iii), but not (i)and (ii).


E. Recommendation and Report on the United Nations Educational,Scientific and Cultural Organization*

Recommendation

BE IT RESOLVED, that the American Bar Association urges theUnited States Government to rejoin UNESCO at the earliest possibletime, so that it may take part in UNESCO's mandate to promote interna-tional cooperation through education, science, and culture.

Report

...This Report concerns the UN Educational, Scientific and CulturalOrganization. In particular it describes the problems that led the UnitedStates to leave the organization in 1984 and the progress UNESCO hasmade in resolving those problems. It concludes that it is in the interest ofthe United States to rejoin UNESCO. The Recommendation relates tothat issue.

I. UNESCO's Purpose and Functions

UNESCO was established in 1945 as one of the original group ofspecialized agencies. Its purpose, as stated in Article I of its Constitution,is "to contribute to peace and security by promoting collaborationamong the nations through education, science and culture in order tofurther universal respect for justice, for the rule of law, and for thehuman rights and fundamental freedoms which are affirmed for thepeoples of the world, without distinction of race, sex, language or reli-gion, by the Charter of the United Nations." Article I of its Constitutionalso gives it a mandate to promote "mutual knowledge and understand-ing of peoples through all means of mass communication."

UNESCO's work in setting standards in the areas within its mandateis of particular importance to the American Bar Association. While it is

* This Recommendation was adopted by the American Bar Association House ofDelegates in August 1995. The Recommendation and its accompanying Reportare one of a series of six related to selected specialized agencies of the UnitedNations and the International Atomic Energy Agency developed by theInternational Institutions Committee of the Section of International Law andPractice, through the Committee's Working Group on United NationsSpecialized Agencies and the IAEA. Members of the Working Group's TaskForce on UNESCO, responsible for developing this Recommendation andReport, were H. Francis Shattuck, Jr. (Chair), John H. Knox (Rapporteur), HurstHannum, Steven Marks, and John F. Murphy.


not possible to describe all of UNESCO's conventions and recommenda-tions here, the following gives an indication of their scope and impor-tance.

Education:

• UNESCO's Convention and Recommendation Against Discrimina-tion in Education are intended to eliminate and prevent discriminationand to promote equality of opportunity and treatment in education.• The Beirut and Florence Agreements facilitate the internationaltransmission of educational materials, by exempting books, films,recordings, and other listed materials used for educational purposesfrom customs duties. The United States is a party to both Agreements.• Together with the International Labor Organization, UNESCO hasdeveloped conventions and recommendations on the status of teachersand in the field of technical and vocational education.• UNESCO has adopted six regional conventions on the recognition ofstudies, diplomas, and degrees in higher education.

Science:

The Convention on Wetlands of International Importance isdesigned to identify and protect wetlands and their flora and fauna. TheUnited States has been a party since 1986.

• In 1970, UNESCO adopted a convention to prevent the illicit import,export, and transfer of ownership of cultural property, to which theUnited States is party.• UNESCO's convention concerning the protection of the world cul-tural and natural heritage, which created the World HeritageCommittee, provides an ongoing mechanism for the international com-munity to recognize monuments, buildings, other human works, andnatural sites which should be protected. Most of the countries of theworld, including the United States, are party to the convention.

Information:

The Universal Copyright Convention of 1952, as revised in 1971,establishes the standards governing the International law of copyright.The United States is also party to the Convention, which requires partiesto protect the rights of authors, including foreign authors, and othercopyright holders. UNESCO shares responsibility over this area with theWorld Intellectual Property Organization.


UNESCO is not primarily a rule-making body, however. It hasimportant ongoing programs in all of the areas within its mandate. Itserves as an umbrella organization for a large number of intergovern-mental institutions, which provide concrete mechanisms for internation-al scientific cooperation in particular areas. Examples include theInternational Hydrological Program, the Program on Man and theBiosphere, the International Geological Program, and the InternationalOceanographic Commission.

In addition, UNESCO has many programs to address specific prob-lems. Current programs include: promoting literacy, particularly literacyof girls and women, in developing countries; assisting scientific educa-tion in developing countries, including training women for seniorresearch and policy positions in the sciences and communications; pro-moting education for human rights; promoting environmental educa-tion; and promoting a free, pluralistic press. UNESCO has also begun topromote "peacebuilding" projects, such as programs to involve armiesof developing countries in providing emergency services or communica-tions for isolated villages.

UNESCO's programs often help the least developed countries, inways that help those countries become more self-sufficient. For example,UNESCO in recent years sent advisers to develop nonintrusive tourismat Angkor Wat in Cambodia, helped to move the Indus River away fromancient ruins in Pakistan, and developed an audio-visual education sys-tem for Haiti designed to teach occupational skills and literacy.

UNESCO works closely with institutions of higher learning, includ-ing universities in the United States. Recent initiatives in this countryinclude the establishment of the International Literacy Institute at theUniversity of Pennsylvania, the International Institute for Theoreticaland Applied Physics at Iowa State University, and an academic chair ininformation and resources studies at Columbia University.

II. Governance and Budget

UNESCO now has 183 members, which include almost all of thecountries of the world. All of the members belong to the GeneralConference, which meets biennially. Its next session is to be held in Parisin October-November 1995. The General Conference elects the DirectorGeneral, the head of the Secretariat, to a six-year term. UNESCO'sExecutive Board, which meets twice a year, is elected by the GeneralConference and consists of 51 member states. States are required toappoint representatives qualified in one or more of UNESCO's fields ofcompetence.

The budget of UNESCO is sent in draft to the AdministrativeCommittee on Coordination, which is composed of the UN Secretary-


General and the heads of the specialized agencies and the InternationalAtomic Energy Agency. UNESCO does not receive comments on itsbudget from the UN General Assembly.

III. U.S. Withdrawal from UNESCO

The United States, which was one of the founding 44 members ofUNESCO, withdrew from the organization on December 31,1984. TheUnited Kingdom and Singapore followed one year later.

There were two primary reasons for the withdrawal. First, theUnited States accused UNESCO of mismanagement, resulting in over-centralization of decisions, an unfocused program of work, and run-away budget growth. Second, the United States accused UNESCO of"politicization."1 The United States pointed to a proposal for UNESCOto endorse a so-called New World Information and CommunicationOrder, which purported to address the perceived monopoly of commu-nication by large corporations in developed countries. Free-press organi-zations, and many countries, including the United States, saw it as a pre-text for government suppression of a free, pluralistic press.

IV. Previous ABA Resolutions on UNESCO

The American Bar Association has considered the issue of U.S. mem-bership in UNESCO twice since the United States withdrew.

In February 1986, the American Bar Association adopted a resolu-tion supporting efforts by the United States and other nations to bringabout reforms in UNESCO designed, inter alia, to emphasize its core pro-grams, eliminate politicization, and reform budgetary and managementpractices. The resolution also supported the active continued participa-tion of the United States through its observer mission, so that the UnitedStates would be in a position to consider a return to membership.

In February 1989, the American Bar Association adopted a resolu-tion supporting the return of the United States to UNESCO, and urgedthe U.S. Government to finalize arrangements necessary to enable it "torenew at the earliest feasible time its membership."

V. Has UNESCO Resolved the Problems That Led the United Statesto Withdraw?

In examining whether to reaffirm the February 1989 recommenda-tion for the United States to rejoin UNESCO, this report first addresseswhether UNESCO has successfully resolved the problems that led theUnited States to withdraw.

In November 1987, UNESCO elected a new Director General,Federico Mayor Zaragoza of Spain. Under his leadership, UNESCO has


undertaken significant reforms, designed at least in part to address theconcerns expressed by the United States and others about mismanage-ment and press freedoms.

A. Mismanagement

In December 1988, Director General Mayor appointed an indepen-dent commission chaired by Knut Hammarskjold to make recommenda-tions on overall personnel and management issues. The report was sub-mitted in December 1989. It echoed in many respects a comprehensivemanagement review of UNESCO prepared by the General AccountingOffice in 1984.2 The two reports identified the following weaknesses inUNESCO's management:

1. UNESCO's governing bodies provided ineffective oversight ofthe Secretariat;

2. the Director General delegated too little authority;3. UNESCO's services were too centralized at headquarters, and in

particular its field offices' authority and accountability should bestrengthened;

4. the program was unfocused with too many activities;5. activities were not adequately planned or evaluated;6. staff appraisals were not credible;7. the use of consultants was not adequately controlled; and8. budget growth was excessive.

In June 1992, GAO reviewed UNESCO's progress in each of theseareas. It concluded that since Director General Mayor's election inNovember 1987, UNESCO had "begun addressing the problems identi-fied by GAO and the Hammarskjold commission."3 In particular, itmade the following conclusions and recommendations:

1.

3.

4.

UNESCO's Executive Board had strengthened oversight of theSecretariat. GAO made no further recommendations.The new Director General had delegated significant authority tohis staff. GAO made no further recommendations.Although the Director General and the governing bodies hadadvocated decentralization, specific criteria for determiningwhat activities to decentralize, how many people or how muchmoney to put into the field, and where to locate these resourceshad not been developed. GAO therefore recommended thatUNESCO develop criteria, country data bases, and specific oper-ational plans for decentralizing.The program focus had improved, by decreasing the number ofactivities funded from 2041 in 1988-1989 to 1354 in 1990-1991.

int.


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GAO found no evidence that any of these activities were consol-idated or otherwise hidden in the program budget. GAO recom-mended that to improve program management, UNESCOshould better track activities.

5. Although planning activities had improved, evaluation of theirimpact needed improvement. To that end, GAO recommendedthat UNESCO ensure that work plans include expected impact,and develop an evaluation plan.

6. UNESCO had introduced a new appraisal system based on jobperformance and had proposed a new promotion system basedon merit and open competition. To ensure that personnel reformcontinue, GAO recommended that UNESCO continue to haveperiodic external reviews and develop a personnel data base.

7. UNESCO had made some reforms with respect to consultantcontracts, but had not satisfactorily addressed concerns that itused too many supplementary staff and did not control theiruse. GAO therefore recommended that UNESCO develop a pro-cedural checklist to control the contract authorization processfor hiring such staff and make it more transparent and uniform.

8. Perhaps most impressively, UNESCO had reduced its real bud-get growth to 0.6 percent, from an average of 2.5 percent annual-ly between 1977 and 1983. Except for salaries, which are linkedto the UN system as a whole, its budget had had less than zeroreal growth since 1988.

Nine months later, in March 1993, GAO evaluated the extent towhich UNESCO had implemented its June 1992 recommendations. Itconcluded that "UNESCO's member states, Director General, managers,and employee associations have demonstrated a commitment to man-agement reform through their actions."4

In particular, the March 1993 report stated that UNESCO hadalready implemented or taken most of the necessary steps to implementeight of GAO's twelve June 1992 recommendations. For example, it hadimplemented the new merit-based promotion system, which requiresopen competition for each promotion. It had developed the recommend-ed checklist for hiring consultants to ensure consistency and had revisedits regulations to make them easier to follow. The only area laggingbehind was decentralization, but even there UNESCO had taken con-crete steps towards developing criteria for decentralization and develop-ing country data bases, the two recommended precursors to developingoperational plans.

In its June 1992 and March 1993 reports, GAO also noted areas inwhich UNESCO was undertaking reforms in addition to those proposedby GAO and the Hammarskjold report. Most important, GAO notedthat in 1989 UNESCO broadened the role of its inspector general to


include independent financial and management audits, and increasedthe number of the inspector general's professional staff from six to ten.(The inspector general is still, as in other specialized agencies, appointedby the Director General.) GAO found that the inspector general's officeappeared to be having a greater effect within the organization. Forexample, after the inspector general found employees engaged in fraud,UNESCO terminated their employment. After the inspector general rec-ommended that clear policies be established for recruiting, training,evaluating, and promoting staff, the organization implemented the rec-ommendations.5

B. Press Freedoms

A number of organizations and countries, including the UnitedStates, were concerned in the 1980s that UNESCO was consideringrestrictions on press freedoms through the New World Information andCommunication Order. UNESCO has not only ceased that considera-tion; it has renewed its efforts to promote a free, pluralistic press.

Shortly after his election, Director General Mayor met with free-press groups and pledged his commitment to press freedom. Heappointed individuals in whom free-press groups had confidence to behis directors of public information. Examples of the resulting change inapproach include:

• a conference of independent African journalists held byUNESCO in May 1991 in Namibia, which emphasized the roleof a free press in promoting democracy and development;

• a declaration by the UNESCO General Conference that "a free,pluralistic and independent press is an essential component ofany democratic society";

• a decision by UNESCO's International Program for theDevelopment of Communication to make freedom of the pressand pluralism and independence of media "priority considera-tions in project selection; and

• a declaration by Director General Mayor in May 1992 onInternational Press Freedom Day (now an annual UNESCOevent) pledging support "wherever press freedom is endan-gered or suppressed."

These examples and others were cited by the Executive Director ofthe World Press Freedom Committee, a nongovernmental organizationhighly critical of UNESCO's policies in the 1980s, in a June 1993 letter tothe State Department expressing support for revisiting the issue of U.S.membership. The letter stated in part, "For many years, UNESCO waspart of the problem in world communications. Today, it is increasingly


11

IE.k

part of the solution. Free-press organizations around the world nowconsider it a partner in their efforts to promote a free press and to lessenabuses against journalists."

The President of the Federation Internationale des Editeurs desJournaux (FIEJ) has urged the U.S. Government to rejoin UNESCO, say-ing in part:

UNESCO has become, under the leadership of DirectorGeneral Mayor, an important partner and ally. In the area ofpressuring governments to respect freedom of expression,UNESCO is uniquely placed to intervene and demand therespect by member states of the principles enshrined in itsConstitution. We are satisfied that UNESCO is now using itsstrong influence in this respect; it is reacting rapidly andeffectively when cases of abuse are brought to its attention. Ina broader sense, the organization is well on its way to becom-ing a real moral and political force in the defense of freedominternationally.

In terms of bringing material and other assistance to theindependent press, UNESCO has made important reformswhich permit its programmes to bring measurable improve-ments to these media. We are now absolutely satisfied that theorganization wishes to work closely with the appropriate pro-fessional bodies ... to ensure that the overriding criteria forthe selection and implementation of its projects are their realeffectiveness in furthering the cause of freedom of the press.Again, we believe that UNESCO has a unique role here whichcannot be played on a global scale by any other organization.

The FIEJ presented Director General Mayor its 45th Anniversary Prize inMay 1993 in recognition of his work.

Professor Leonard Sussman, the former Executive Director ofFreedom House and a close observer of UNESCO, has informed theState Department that American and international nongovernmentalorganizations concerned with freedom of the press have seen "UNESCOdemonstrate its fundamental commitment to press freedom, pluralistjournalism and assistance to developing countries in enlarging anddemocratizing their media of news and information." He states that it is"past time" for the United States to rejoin UNESCO.

The conclusion is inescapable that UNESCO has satisfactorilyaddressed the problems that led the United States to withdraw. Underthe leadership of Director General Mayor, it has reformed its manage-


ment and stabilized its budget. It now promotes in concrete ways a free,pluralistic press. The members of UNESCO reaffirmed their commit-ment to this changed course by electing the Director General in 1993 to asecond six-year term.

VI. Should the United States Rejoin UNESCO?

At the time it withdrew, the United States made clear that it wouldrejoin UNESCO if it made necessary changes. Now that UNESCO has madethose changes, it might be argued that the United States should rejoin inorder to fulfill its previous commitment, regardless of other factors.

This argument has great force. A failure to rejoin under these cir-cumstances undoubtedly risks lowering the United States in the eyes ofthe international community.

Nevertheless, it is important to examine all factors relevant to thedecision. At a minimum, however, UNESCO's reforms create anextremely strong presumption that the United States should rejoin. Thereport concludes that, far from overcoming this presumption in favor ofrejoining, the other relevant factors reinforce the importance ofUNESCO and indicate that it is in the United States' interest to rejoin.

Rejoining would enable the United States to ensure that the policiesundertaken under Director General Mayor would continue and growstronger. The United States, more than any other country in the world, isin a position to support and strengthen UNESCO's activities. In particu-lar, rejoining would allow the United States to participate actively inUNESCO's important work to safeguard press freedoms and promotepluralistic, democratic press institutions. It would allow the UnitedStates to have a say in UNESCO's important normative work, such as itscurrent efforts to draft a new instrument on bioethics. And it would givethe United States great influence on management and budget matters.

An example of the ongoing work of the organization in which theUnited States cannot participate as an observer is the consideration bythe UNESCO Executive Board of whether and how to give theInternational Oceanographic Commission more autonomy. The UnitedStates has a strong interest in the Commission, in which it continued toparticipate after its withdrawal from UNESCO. The United States willnot, however, be able to participate in the decisions about theCommission's structure and budget until it rejoins UNESCO.

Conversely, a failure to rejoin would greatly reduce the UnitedStates' influence over the organization. The withdrawal has undoubted-ly been a significant factor in the reforms UNESCO has made. But nowthat UNESCO has met the goals set by the United States in the 1980s, theUnited States will lose its leverage in the organization if it does not fulfillits commitment to rejoin.


Rejoining would support the many persons and organizations in theUnited States engaged in scientific/ educational, and cultural activitieswho would benefit from UNESCO's international programs in thoseareas. Such organizations that have announced their support for thereturn of the United States to UNESCO include the AmericanAssociation for the Advancement of Science, the American Associationof Engineering Societies, the American Association of Museums, theAmerican Chemical Society, the American Library Association, theAmerican Physical Society, the American Society for Microbiology, theNational Academy of Engineering, and the National Academy ofSciences.

Rejoining would also lead to greatly increased participation by U.S.nationals in the organization's staff. Like other UN organizations,UNESCO hires nationals primarily from its member states; in the last tenyears, the Secretariat has hired only two U.S. nationals to its permanentstaff.

Finally, rejoining would demonstrate the United States' commitmentto addressing international problems cooperatively, before they developinto international conflicts. The preamble to UNESCO's Constitutionstates,."Since wars begin in the minds of men, it is in the minds of menthat the defenses of peace must be constructed." UNESCO's mission isto construct these defenses of peace through peaceful means: interna-tional cooperation in education, science, culture, and communications.Recent events in virtually every continent in the world underscore thatUNESCO's mission is no less important now than when it was founded.

The U.S. Government has recognized the value of rejoiningUNESCO. A June 1993 interagency review of UNESCO recognized itsprogress in reforming its management and in changing its approach tothe press, and concluded that its current programs provide valuable ser-vices in a range of fields that reinforce the United States' foreign policyagenda.

The Clinton Administration did not seek funds for UNESCO mem-bership in the fiscal year 1996 budget, however. In January 1995, inresponse to a letter from John Whitehead, Elliot Richardson, and CyrusVance on behalf of the United Nations Association of the United Statesof America urging that the United States rejoin, President Clinton statedthat he looked forward to the United States' rejoining UNESCO "as soonas our resources permit." The only obstacle to rejoining thereforeappears to be that it would add to the United States' financial commit-ments.

The United States' share of UNESCO's budget would be one-quar-ter, which would amount to about $65 million in fiscal year 1996. It isimportant to recognize that U.S. dues to UNESCO would not be out ofline with its current dues to other specialized agencies. On the contrary,


they would be significantly less than current dues to the World HealthOrganization ($106 million), the Food and Agriculture Organization ($95million), and the International Atomic Energy Agency ($80 million), forexample. They would be in the same range as U.S. dues to theInternational Labor Organization ($58 million).

The United States pays all of its dues to international organizations(other than development banks) from the Contributions to InternationalOrganizations account in the State Department. For fiscal year 1996, theAdministration has requested $934 million for that account, and another$425 for voluntary contributions to international organizations.UNESCO's dues would increase the total of those accounts by less thanfive percent. The Administration has requested about $21 billion for thetotal international affairs budget in fiscal year 1996; UNESCO's dueswould be only about three-tenths of one percent of that amount. Theentire international affairs budget is, in turn, only about one percent ofthe total U.S. budget. It is clear that, in the context of total U.S. contribu-tions to international organizations, total international expenditures, andthe total federal budget, the addition of the U.S. share of dues toUNESCO is not an unduly large amount.

In particular, it is a small amount to pay in return for the concreteways in which UNESCO promotes activities around the world that areextremely important to the United States: development of a free press,maintenance of the international copyright system, education in poorcountries, promoting women's literacy, retraining developing countries'armies, and international scientific and cultural cooperation in general.

VII. Conclusion

For all of the reasons discussed above, and most importantlybecause UNESCO has successfully addressed the problems that led theUnited States to withdraw, the United States should delay no longer indeciding to rejoin UNESCO.

Endnotes1 For a description of the reasons the United States gave for its withdrawal, seeU.S. DEP'T OF STATE, PUB. No. 9771, THE ACTIVITIES OF UNESCO SINCE U.S.WITHDRAWAL: A REPORT BY THE SECRETARY OF STATE 1-2 (1990).2 Improvements Needed in UNESCO's Management, Personnel, Financial, andBudgeting Practices (GAO/NSIAD-85-32, Nov. 30,1984).3 UNESCO: Status of Improvements in Management, Personnel, Financial, andBudgeting Practices 3 (GAO/NSIAD-92-172, June 9, 1992) [hereinafter Status ofUNESCO Improvements].4 UNESCO: Improvements in Management Practices I (GAO/NSIAD-93-159).5 Status of UNESCO Improvements, supra note 3, at 26-27.


F. Recommendation and Report on the Food and AgricultureOrganization*

Recommendation

BE IT RESOLVED, that the American Bar Association recommendsthat the United States Government take the actions listed below:

(a) Continue to give strong support to the Food and AgricultureOrganization of the United Nations (FAO), including its activi-ties in setting international standards and providing technicalassistance in drafting and implementing appropriate nationallegislation;

(b) Encourage FAO in its efforts to restructure itself, streamline itsoperations, and strengthen its transparency and accountability;

(c) Endorse stronger coordination efforts within the United Nationssystem which clarify the mandate, roles, and tasks, especiallyat field level, of FAO and the organizations (UN, governmen-tal, and nongovernmental) with which it works most closely.

Report

Introduction and Background...

[The Food and Agriculture Organization of the United Nations(FAO)], among other things, plays a key role in the development of legalstandards worldwide....

FAO is one of the largest of the specialized agencies of the UnitedNations. The U.S. has been involved in FAO since its inception whenPresident Roosevelt convened the UN Conference on Food andAgriculture in the U.S. in 1943.1 FAO was founded with the adoption ofits Constitution on October 16,1945.

FAO is governed by a 171-member2 Conference which meets bienni-ally and a 49-member Council which meets four times in each biennium.

* This Recommendation was adopted by the American Bar Association House ofDelegates in August 1995. The Recommendation and its accompanying Reportare one of a series of six related to selected specialized agencies of the UnitedNations and the International Atomic Energy Agency developed by theInternational Institutions Committee of the Section of International Law andPractice, through the Committee's Working Group on United NationsSpecialized Agencies and the IAEA. Members of the Working Group's TaskForce on the Food and Agriculture Organization, responsible for developing thisRecommendation and Report, were H. Francis Shattuck, Jr. (Chair), Ellen Kern(Co-Rapporteur), Sompong Sucharitkul (Co-Rapporteur), Hurst Hannum, andJohn H. Knox.


The Conference sets FAO policy, and the Council oversees operationsand budget. The Secretariat, headed by the Director-General, adminis-ters FAO's day-to-day operations. Standing committees of the Council,such as the Committees on Agriculture (COAG), Fisheries (COFI),Forestry (COFO), and World Food Security (CFS), meet to review opera-tions and technical aspects of FAO's work for the governing bodies. Aprocess is continuing to improve both cost-efficiency and effectivenessof FAO's governing bodies.3 Member nations are usually represented atFAO by their agriculture and foreign ministries.

II. FAO's Aims, Functions, Mandate, and Priorities

A. Aims

The Preamble to FAO's Constitution defines FAO's aims as:

1. raising levels of nutrition and standards of living;2. securing improvements in production and distribution of food

and agricultural products;3. bettering the conditions of rural populations; and4. contributing towards an expanding world economy and ensur-

ing humanity's freedom from hunger.4

B. Functions

Under Article 1(2) of the FAO Constitution, FAO's main functions are:

1. to collect, analyze, interpret and disseminate information onnutrition, food, and agriculture; and

2. to promote and recommend national and international actionwith respect to —

(a) scientific, technological, social, and economic research;(b) the improvement of education and administration relating

to nutrition, food, and agriculture;(c) the conservation of natural resources and the adoption of

improved methods of agricultural production;(d) the improvement of the processing, marketing, and distrib-

ution of food and agricultural production;(e) the adoption of policy for providing adequate agricultural

credits; and(f) the adoption of international policies on agricultural com-

modity arrangements.

Under Article 1(3), FAO also furnishes such technical assistance asgovernments may request and organizes, with the cooperation of con-cerned governments, such missions as may be needed to assist them to


fulfill the obligations arising from the acceptance of the recommenda-tions of the UN Conference on Food and Agriculture and of the FAOConstitution.

C. Mandate

FAO is the core UN agency on food and agriculture issues. Food is abasic human need, and freedom from hunger is viewed increasingly as afundamental human right.5 The satisfaction of this basic human needpromotes world peace.

FAO serves as a forum for the resolution of food and agriculturalissues of importance to its member nations.6 FAO also serves as TaskManager within the UN system to promote international action relatedto Chapters 10 (Integrated Approach to the Planning and Managementof Land Resources), 13 (Sustainable Mountain Development), and 14(Sustainable Agriculture and Rural Development) of Agenda 217 in closecollaboration with the Commission on Sustainable Development and inpartnership with other international organizations.8 By virtue of this roleand by chairing the work of the Subcommittee on Rural Development ofthe UN's Administrative Committee on Coordination (ACC), FAO'smandate to improve not just agricultural production or productivity butrural development as a whole appears to be recognized within the UNsystem.

D. Priorities

Within FAO's three major ongoing work programs in agriculture,fisheries, and forestry, its governing bodies set FAO's five major priori-ties for work during the 1993-1995 biennium as:

environment and sustainable development;policy advice;people in development;poverty alleviation, nutrition, and food security; andtechnical and economic cooperation among developing coun-tries^

Like other actors in the field of international development, FAO hasattempted to streamline its operations to focus on those areas in which itfeels it has a comparative advantage and where it can play a catalyticrole. Areas in which FAO feels it has a comparative advantage includeproviding high quality global agricultural statistics, information, analy-sis, national policy advice, and national technical assistance.10

FAO also participated actively in the preparation of the UnitedNations Conference on Environment and Development (UNCED), held


in June 1992. Like other development organizations and UN specializedagencies, FAO's structure, strategy, priorities, and programs were pro-foundly shaped by the decisions at UNCED and by the continuing fol-low-up program within the UN system as a whole through the work ofthe UN's Commission on Sustainable Development (CSD).

HI. Achievements of FAO

FAO's efforts in collaboration with other UN specialized agenciesand its member nations have enabled the world to produce, distribute,and consume more and better food than was possible at the end ofWorld War II. In addition to these development achievements, FAO,especially through its distribution of food for the World Food Program(WFP), has played a significant role in famine relief in the Sahel,Somalia, Rwanda, and Bosnia, among other countries.

Past efforts by FAO and its member nations have improved the foodsecurity and nutrition situation at global, national, regional, and house-hold levels. FAO has fulfilled its role through collection and dissemina-tion of information, promotion of appropriate international and nationalaction, and provision of technical assistance. FAO's achievements havecome in areas where it has the best specialized technical competence anda normative role. Its normative role manifests itself in the formulationand Implementation of harmonized11 standards and international agree-ments in the fields of food and agriculture. Notable areas of achievementare highlighted below.

A. Collection and Dissemination of Information on Nutrition, Food,and Agriculture

Over the past fifty years, FAO has excelled in its function to collect,analyze, interpret, and disseminate information on nutrition, food, andagriculture. Information developed by FAO is disseminated freely, espe-cially to member nations, and this practice has multiplied the impact ofthis information.

1. Statistical Databases and Technology for Monitoring Trends in andImproving Food and Agriculture

FAO is the world's leading organization for statistics and computersoftware on matters related to nutrition, food, and agriculture. The well-known Global Information and Early Warning System (GEEWS), jointlyoperated by FAO with the World Meteorological Organization (WMO),provides timely warnings of impending food shortages through a con-tinuous flow of reliable and up-to-date information on the supply of


basic foodstuffs.12 Other programs provide information on agriculture(WAICENT),13 water management (AQUASTAT),1* and irrigation(SIMIS).15 A major goal of FAO's information-gathering system is toimprove the quality of national information provided by its membernations.

2. National Legislation

FAO collects and disseminates information on legislation related tofood and agriculture in its member nations.16 It maintains a central data-bank consisting of about 118,000 legislative texts, indexed by subject andby country. FAO annually publishes summaries of the year's mostimportant national legislation in the periodical, Food and AgriculturalLegislation.

3. Reports on the State of Food and Agriculture

FAO's reports on the state of food and agriculture to the Conference,the world's agricultural summit, are invaluable benchmarks used in theevaluation of not only agriculture and rural development in the worldbut also global economic and social development.17

B. Promotion and Recommendation of National and InternationalAction in its Specified Sphere of Competence

FAO has fulfilled its function to promote and recommend nationaland international action not only by developing international andnational law on these matters but also by mobilizing international coop-eration and funding within its sphere of competence through proposedaction programs and international conferences.

Development of Standards and International AgreementsConcerning food and Agriculture

FAO contributes directly to the evolution of international lawregarding food and agricultural matters through the formulation andadoption, under its auspices, of influential nonbinding legal instrumentsand proposed international agreements. Through its participation injoint programs with other UN agencies and its function as secretariat forimportant international programs, FAO also influences the codificationof international standards. In addition, FAO's Conference may makenonbinding recommendations to members concerning questions relatingto food and agriculture.18 Conference resolutions represent careful nego-tiation by governments of member nations and are binding mandatesfor the governing bodies of FAO. A member nation's acceptance,through its usual ratification or other national procedure, makes these


agreements, standards, and recommendations legally binding on thatparticular nation.19

a. International Agreements Regarding Food and Agricultural MattersFAO has actively assisted the development of international law

regarding food and agricultural matters. Under its auspices, membernations have successfully negotiated binding international agreements.20

These include the Agreement to Promote Compliance with InternationalConservation and Management Measures by Fishing Vessels on theHigh Seas ("Compliance Agreement")21 and the International PlantProtection Convention.22 Other agreements have fostered technicalprogress and cooperation on food and agricultural matters.23

b. Food Safety StandardsThe Codex Alimentarius, a trade standardization program jointly

proposed and planned by FAO and WHO, sets nonbinding24 interna-tional food product safety and quality standards for pesticides and bac-terial residues, food additives, and food preservation methods.25 Thesecodes of practice, guidelines, and other recommended measures, partic-ularly MRLs for pesticides or veterinary drugs in food, are widely usedby developing countries, especially in (he absence of national legislation,to guide their policy, legal, and enforcement actions to protect the healthof their consumers and ensure fair practices in the food trade.

c. Codes of ConductNonbinding instruments, such as the International Undertaking on

Plant Genetic Resources and the International Code of Conduct on theDistribution and Use of Pesticides,26 have been very influential amongmember nations once approved by the Council and adopted by theConference. While these instruments are voluntary, they are widelyadhered to, and FAO's Development Law Service actively assists mem-ber nations, especially developing countries, to implement their provi-sions in national legislation.

2. Improvement of Education and Administration Relating to Nutrition

The FAO-organized International Conference on Nutrition (ICN) inDecember 1992 adopted specific goals on nutrition for the world's popu-lation. The main responsibility for follow-up activities under this WorldDeclaration and Plan of Action for Nutrition lies with the governmentsof member nations. To enable member nations to fulfill the ICN's goals,FAO has established two new Special Action Programs which build onpast support27 and strengthen FAO's capacity to assist member nations


in developing, implementing, and monitoring food security and nutri-tion plans and programs.28 In addition, the Council has approved a spe-cial program for pilot projects to assist low-income food-deficit countriesin attaining a higher degree of food self-reliance by developing localfood production in support of food security.29

3. Improvement of Methods of Production, Conservation, andDistribution of Food

Over the past fifty years FAO has enabled member nations to steadi-ly improve methods of animal and plant production and conservation aswell as distribution of food. Three means of doing so — improvementsin disease control, protection of genetic resources, and sustainable devel-opment — are highlighted below.

a. Control of DiseasesImproved control methods developed by FAO and the development

of forms of immunization by FAO as a means of combatting animal dis-eases have been adopted in many regions of the world. Research pio-neered and supported by FAO led to the development of environmen-tally benign methods of tsetse eradication and control. FAO's ongoingregular and field programs have led to improved long-term preventionand control programs. In addition, FAO's programs in plant, pest, andanimal disease control have mobilized national and multilateralresponses to transboundary disease emergencies, thus protecting U.S.and non-U.S. agriculture from potentially costly losses.30

b. Improvement and Protection of Genetic ResourcesResearch and assistance from FAO has resulted in the wide and

increasing use of high-yielding varieties of crops, leading to greater foodsecurity. FAO plays a fundamental role in improvement of production,conservation, and distribution of food crops through its Global Systemfor the Conservation and Sustainable Use of Plant Genetic Resourcesand its implementation of the International Undertaking on PlantGenetic Resources. It is expected that these will be expanded to includeanimal genetic resources.31

c. Sustainable Development of Food and AgricultureFAO's work programs and budgets have subsumed, under the term

"sustainable development, FAO's specific mandates in improving roodand agriculture, adopting improved methods of agricultural production,conserving natural resources, and improving the processing, marketing,and distribution of food and agricultural production. The FAO


Conference launched the International Cooperative Framework forSustainable Agriculture and Rural Development (ICPF/SARD) inNovember 1991 to assist and encourage the sustainable development ofagriculture. While FAO has begun responding to its governing bodies'requests for better analytical information, benchmarks, and programimplementation criteria for the ICPF/SARD, the success of this frame-work has yet to be evaluated fully. Other FAO programs have benefitedrural farmers with the conservation and utilization of plant geneticresources, the prevention of land degradation, the restoration of produc-tivity of degraded lands, the promotion of integrated plant nutrient sys-tems, and the increased efficiency of water management and use foragricultural purposes.

C. Provision of Technical Assistance

FAO has assisted countries with policy, technical, and legal adviceas well as training on nutrition, food, and agricultural matters. TheDevelopment Law Service within FAO's Legal Office is the focal pointfor the legal aspects of the development process within FAO's mandate.It offers a broad range of legal advice on agriculture and renewable nat-ural resources management to both member governments and in-houseFAO technical units. The Service also advises and assists its membernations, especially developing countries, with the review, analysis, anddrafting of appropriate national legislation in a particular field of natur-al resources management. The Service also conducts training, collectsand disseminates legal information, performs legal research and writing,and contributes to the development of international legal instruments.Approximately thirty countries in any one year receive assistance withthe drafting of laws to manage forest, water, food, land, animal, plant,environment, fish, and other resources.

IV. Shortcomings of FAO

The world's major problems in food, nutrition, and sustainabilityrequire coordinated action, both immediate and long-term, at nationaland international levels in order to attack the root causes of persistentfood insecurity. It is not surprising that FAO has failed to achieve ormake progress on some of its broad aims which, by definition, requireextensive and intensive coordination with other bodies. FAO has recent-ly taken steps to address problems perceived in its management, person-nel, and budgetary practices which have limited its capacity to deliverits program and project services. Finally, FAO has found itself divertingscarce development resources to sometimes duplicative humanitarianand emergency relief.


A. Improving Coordination and Avoiding Duplication of Functions

There is a continuing need for a broad participation of multilateral[and] bilateral [organizations], donor agencies, and nongovernmentalorganizations to fulfill FAO's mandate as the core agency for food andagriculture.32 Too often, however, statements of cooperation do nottranslate into consolidation, synthesis, or coordination in practice.Duplication of efforts, whether resulting from lack of coordination orinstitutional infighting, waste time and money on the part of FAO andof the institution within a member nation which executes an FAO pro-ject. In addition, coordination, especially in response to emergencies, issometimes done at the UN level by interagency representatives at theexpense of rapid action at the country and field levels.

Particularly close cooperation is needed between the three Rome-based food and agriculture organizations of the UN system, in view oftheir related and complementary mandates: FAO, IF AD,33 and WFP.34

The Conference has also highly recommended that FAO strengthen itscooperation on funding issues within the UN system. Specific coopera-tive agreements have been reached with UNDP and the World Bank, forwork on food security and, with the latter, also on investments.35

Past efforts have been made to address organizational overlap andduplication in the UN system by sharing information and consultantsamong various agencies, e.g., among FAO, UNEP, the World Bank, andenvironmental NGOs in the field of environment and natural resourcesmanagement.36 Member governments and UN agencies can do more,however, to avoid duplication, ensuring that mandates do not overlapand are mutually reinforcing.

B. Overcoming Management and Personnel Problems and anInability to Translate Information Effectively into the Field

With the election of a new Director-General in November 1993, FAOentered a long-awaited period of reform directed at a role as a decentral-ized, efficient, transparent, and accountable provider of expertise andadvice on food and agricultural matters. FAO's new Director-Generalhas initiated, and the FAO Council has approved, far-reaching proposalsto streamline, restructure, and progressively decentralize FAO's opera-tions.37 The process of formulating, adopting, and implementing thesechanges has been slowed by extensive consultations with membernations and within FAO38 and by management decisions such as the oneto fill post vacancies and, recently, consultancies only with qualifiedcandidates from unrepresented countries. FAO's governing bodiesshould continue to scrutinize this reorganization to ensure that it meetsneeded goals.


One of FAO's strengths is the sheer breadth of available humanexpertise on a range of technical subjects which have as their objectivethe sustainable satisfaction of basic human needs in rural areas. FAO'seffectiveness depends on attracting and retaining high quality and dedi-cated professionals in these specialized fields through improved person-nel practices, especially recruitment and advancement, on the basis ofcapability and performance. The success or failure of ongoing reorgani-zation, restructuring, and decentralization initiatives should be moni-tored continuously to ensure that FAO's information is maintained,updated, disseminated in the field, and, most importantly, transferredthrough training and capacity-building to member governments andothers in the field.

C. Redressing Weak Budgetary Practices

The FAO Conference approves FAO's budget. Like other UN spe-cialized agencies, FAO receives comments on its budget from the ACC,which is composed of the UN Secretary-General and the heads of thespecialized agencies and IAEA. Since the UN Charter and Article XIV ofthe Agreement between the United Nations and FAO provide for closebudgetary and financial relationships with the United Nations, moretransparent budgetary approval procedures and greater governing bodyoversight should be encouraged within the context of overall reform ofthe UN system.

From July 1994 on, the Director-General initiated an internal audit ofall Regional Offices, FAO Country Representations, and Liaison Offices,"perhaps the most comprehensive internal audit undertaking ever per-formed within the UN system."39 This internal audit permitted the eval-uation of FAO's operations to date and contributed to the formulation ofthe streamlining discussed above. Although there is a progressivetrend,40 it is too early to tell whether significant downsizing and cost-saving measures will be implemented. FAO's governing bodies shouldcontinue to monitor carefully implementation of the recommendationsfrom this internal audit.41

Despite timely payments in recent years, U.S. arrears, accumulatedin the mid-1980s, amount to almost one year's dues. Since the U.S. con-tribution is 25% of FAO's budget, the failure to pay dues in full and ontime has serious consequences for FAO's regular program.42 That pro-gram is approved and adopted by FAO's governing bodies with U.S.participation. More fundamentally, this failure violates the U.S.'s legalobligations under the FAO Constitution. It also starts to place the U.S. atrisk of losing its vote in the FAO Conference. The FAO Constitution pro-vides that members who are two years or more in arrears lose their rightto vote.43 For all of these reasons, the U.S. Congress should appropriate


the full amount of the U.S. contribution, and the U.S., like all other FAOmembers in arrears, should continue to pay off its arrears as soon as pos-sible.

A January 1994 report by GAO stressed the need for additional gov-erning body oversight of the technical cooperation program.44 Since theGAO report, a Technical Cooperation Department has been establishedwithin FAO to implement the operational side of its project activities.Progress in reforms and responses to GAO recommendations shouldcontinue to be monitored.

D. Monitoring, Evaluating, Following Through, and Following upActivities

Some of FAO's activities have either not been implemented in a sat-isfactory manner or cannot be evaluated for lack of monitoring and eval-uation criteria.45 Some member nations have stressed the need for a bet-ter balance between regular program and field activities. More flexibleproject design, effective monitoring, and frequent review of implemen-tation are needed.46 Separate Program Implementation and EvaluationReports, introduced to the FAO Conference in 1993, are an importantstep in redressing this shortcoming.47

Other activities cannot be evaluated or monitored because of inade-quate information gathering and dissemination. FAO's over-reliance onmember nations' official figures and statistics is one factor, and commu-nications with FAO are another. Steps are being taken to improve FAO'scommunications48 and national capacities in this respect. Additionalprograms to address this shortcoming are new cooperation agreementsfor the use of experts for Technical Cooperation among DevelopingCountries (TCDC), cooperation among countries in transition in Centraland Eastern Europe, and cooperation with academic and research insti-tutions in the developed countries.49 Further upgraded communicationand computer technology to support member nations and put moretimely information on line should be considered.

E. Avoiding Diversion of Resources from Development toHumanitarian and Emergency Relief

Because of its core mandate in food, FAO continues to play an essen-tial role in the coordinated efforts of the UN system to provide humani-tarian and emergency assistance and in the continuum from relief torehabilitation and development.50 FAO's role includes assessing needsfor food as well as for agricultural relief and rehabilitation, especially inareas affected by war or civil strife. Crop and food supply assessmentmissions carried out jointly by FAO and WFP as well as GIEWS are cru-


cial to fulfilling this role. However, meetings and reports on coordina-tion of humanitarian assistance to which FAO has been called upon tocontribute have increased considerably, and such emergency actionshave a high cost. FAO is not a famine relief organization. Its efforts tosustain funding for development in human resources, institutions, andinfrastructure, which could help prevent emergencies and disasters,should be emphasized instead.

V. Conclusions and Recommendations

Continued U.S. support to FAO benefits the U.S. directly. Enhancingfood security and nutrition, especially in developing countries, throughsustainable agriculture and rural development contributes to overalleconomic development in those countries. This decreases future depen-dence of those countries on financial resources of the U.S. In addition,countries which sustain agriculture and rural development becomepotential trading partners and export markets for the U.S. FAO also pro-motes activities around the world that are extremely important to theU.S. such as standardization of food product safety which benefits theU.S. in particular as a country whose food exports are expected toexceed U.S.$42 billion in 1995.

It is therefore recommended that the U.S. Government continue tosupport FAO strongly, including its activities in setting internationalstandards and providing technical assistance in drafting and implement-ing appropriate national legislation, encourage its restructuring,strengthen its transparency and accountability, and endorse the clarifica-tion of its role within the UN system.

Endnotes1 SERGIO MARCHISIO & ANTONIETTA DIBLASE, THE FOOD AND AGRICULTUREORGANIZATION (1991).2 There are 169 member states, one member organization (EuropeanCommunity), and one associate member (Puerto Rico). The U.S.S.R. could havebecome an original member by accepting the FAO Constitution. It never did.The Russian Federation continues the rights of the former U.S.S.R. and is entitledto become an original member by accepting the FAO Constitution. See G. Moore,FAO Legal Counsel, communication dated July 13,1995.3 Report of the Council of FAO, 107th session, Rome, Nov. 15-24,1994, paras. 196-204 [hereinafter CL107/REP].4 Article 1(1) confirms that agriculture and its derivatives include not onlycereals and vegetables but also fisheries, marine products, forestry, and primaryforestry products. This Report uses the term "agriculture" in this all-inclusivesense. The way in which FAO actually operates, however, is that agriculture,forestry, and fisheries are three separate program areas. Council Committees,such as COAG, COFI, COFO, and CFS, established under Article V.6 of the FAO


Constitution, do the bulk of FAO's technical work. Other standing committeeswhich assist FAO in performing its functions as Secretariat are the Committee onConstitutional and Legal Matters (CCLM) (7 members), the Committee onCommodity Problems (CCP), the Finance Committee (9 members), the ProgramCommittee (9 members), and the World Food Program (WFP)'s Committee onFood Aid Policies and Programs, as well as the WFP Subcommittee on Projects.Five Regional Conferences also facilitate FAO's work: Asia and the Pacific,Africa, Europe, Latin America and the Caribbean, and the Near East. Referencesin this Report to FAO's Constitution and governing documents are taken fromthe compilation of Basic Texts of the Food and Agriculture Organization of the UnitedNations (1980 ed.).5 The phrase "freedom from hunger" was added to the FAO Constitution in1965 in response to Article 11 of the then draft Covenant on Economic, Socialand Cultural Rights (States Parties to the Covenant recognize the fundamentalright of everyone to be free from hunger). The United States is not a party to thisCovenant. See also 1948 Universal Declaration of Human Rights, art. 25 (every-one has right to adequate standard of living, including food).6 Report of the 13th Session of the Committee on Agriculture, Rome, Mar. 27-31,1995, para. 21 (reported to the 108th session of the Council, held June 5-16,1995)[hereinafter COAG - CL108/9].7 Agenda 21 was adopted as a plan of action for sustainable development bythe countries attending the United Nations Conference on Environment andDevelopment (UNCED), which was held in Rio de Janeiro, Brazil, in June 1992.8 COAG - CL 108/ 9, supra note 6, para. 49.9 C 93/REP, para. 172. See also COAG - CL 108/9, supra note 6, para. 9 (overrid-ing priorities are food security and SARD).10 See COAG - CL 108/9, supra note 6, para. 20; COFI - CL 108/7, paras. 50, 52(FAO's role especially important to build capacity at national and regional lev-els); Report of the 12th Session of the Committee on Forestry, Rome, Mar. 13-16,1995,para. 28 (reported to the 108th session of the Council, held June 5-16,1995) [here-inafter COFO - CL 108/8].11 The word "harmonized" means similar or consistent but not uniform.12 GIEWS also helps monitor climate changes, assisting member nations to takeappropriate actions to deal with food shortages. Over 100 countries now partici-pate in GIEWS, which has been operating since 1975.13 The Council has urged FAO to provide electronic access to the informationsources, strengthen capacities of member countries in accessing the information,develop national systems so that national data could be readily transferred tothe World Agricultural Information Centre (WAICENT) system, and consultwith information users of WAICENT. COAG - CL 108/9, supra note 6, para. 31.14 AQUASTAT is a global database on water use in rural development whichwill contribute to better water management by consolidating and making avail-able information on irrigation, water drainage, environmental impact of waterresources development, and water balance in rural areas worldwide.15 Scheme Irrigation Management Information System (SIMIS) is designed tohelp reduce water losses in irrigation.16 Under Article Xl.i of the Constitution, all member states and associate mem-


bets are required to communicate regularly to the Director-General the texts ofpublished laws and regulations pertaining to matters within the competence ofthe Organization which the Director-General considers useful for the purposesof the Organization.17 See, e.g., CL 107/REP, supra note 3, paras. 7-11 (considering the State of Foodand Agriculture 1994, report of the 19th session of the Committee on WorldFood Security, 22-25 March 1994, Rome, which notes that the global food securi-ty situation deteriorated further in 1994 and that commitments of external assis-tance to agriculture had declined in real terms in recent years),is FAO CONST, art. IV.3.19 International agreements adopted under Article XIV of the FAO Constitutionare accepted by member nations through their usual ratification procedures.Standards adopted by the Codex Alimentarius Commission, whether or not theyhave been accepted by member nations, are recognized under Article 3(2) of theWorld Trade Organization's Agreement on the Application of Sanitary andPhytosanitary Measures, Apr. 15, 1994 [hereinafter WTO's SPS Agreement], asvalid and do not constitute non-tariff trade barriers.20 Under Article XIV of the FAO Constitution, the Conference or the Councilmay adopt, by a two-thirds majority vote, conventions and agreements concern-ing questions relating to food and agriculture. These become binding on mem-ber nations once they have been ratified by the members concerned.21 Approved in November 1993 by the 27th session of the FAO Conference, theCompliance Agreement is not yet in force. As of January 1995, the ComplianceAgreement had been ratified by Canada, Georgia, Madagascar, Myanmar,Norway, St. Kitts and Nevis, and Sweden.22 The International Plant Protection Convention (IPPC) came into force in 1952and was revised in 1979, by Resolution 14/79 at the 20th session of the FAOConference. As of September 1994,102 countries, including the U.S., were par-ties to the IPPC, which guides member nations in plant quarantine matters. Likethe Codex Alimentarius Commission's standards, phytosanitary standardsadopted by the FAO Conference under its established IPPC procedures are alsorecognized under WTO's SPS Agreement, supra note 19, as valid and do not con-stitute non-tariff trade barriers.23 Examples include the Agreement for the Establishment of a Regional AnimalProduction and Health Commission for Asia and the Pacific, the Agreement forthe Establishment of the General Fisheries Council for the Mediterranean,numerous regional fisheries agreements, and regional plant protection agree-ments such as the Agreement for the Asia and Pacific Plant ProtectionCommission.24 As noted above, while not binding, the Codex standards have some indirectlegal force under the WTO's SPS Agreement. See supra note 19.25 A joint secretariat operates the program under the intergovernmental guid-ance of the joint FAO/WHO Codex Alimentarius Commission (CAC), whichwas set up under Article XVI of the FAO Constitution. To date, 200 standards, 40codes of practice and guidelines, and 2000 maximum residue limits (MRLs) havebeen finalized.26 Others include: the International Code of Conduct for Plant GermplasmCollecting and Transfer (adopted by the FAO Conference at its 27th session in


111

November 1993); the International Code of Conduct on the Import and Releaseof Exotic Biological Control Agents (approved by COAG for forwarding to theCouncil for approval and to the Conference for adoption in 1995, see COAG - CL108/9, supra note 6, para. 52); and the most recent, the International Code ofConduct on Responsible Fishing, which was drafted under the auspices of FAOand is on a fast track for approval by the FAO Conference in October-November1995. Certain provisions of the latter will have been given legal effect by meansof other binding legal instruments among the parties, such as the ComplianceAgreement discussed above.27 Support in the past has come under the Food Security Assistance Scheme(FSAS). FSAS was set up in 1976 to help developing countries map out theirnational food security policies, identify projects, and mobilize funds. Projectsfinanced under FSAS were directed mainly towards setting up or expandingfood storage facilities at the national level, training to improve food stock man-agement, and establishing and improving national early warning systems.28 C 93/REP, para. 71.29 Director-General's [September 1994] Report on Implementation of Decisions Takenby the Council at its 106th Session, paras. 4-10 (reported to the 107th session of theCouncil, held in Rome Nov. 15-24,1994) [hereinafter DG - CL 107/14],30 In the 1970s FAO stopped the spread of swine fever in the DominicanRepublic which prevented the decimation of the swine industry in the U.S. Theeradication efforts cost approximately U.S. $25 million and saved several billionU.S. dollars. Fifty years of progress in the field enabled FAO's Council recentlyto approve the Emergency Prevention System (EMPRES) for TransboundaryAnimal and Plant Pests and Diseases, focusing on locusts and rinderpest. Thedesert locust component of EMPRES will implement early warning and surveyactivities in the Horn of Africa and Arabia in 1995. The animal diseases compo-nent will strengthen FAO's capacity for global monitoring of rinderpest and thecausal virus with the eventual goal of global rinderpest eradication. Id. paras. 11-18.31 See CL 107/REP, supra note 3, paras. 86-92.32 FAO formally coordinates its work with, among others: the UN Economicand Social Council (ECOSOC) on food aid, restructuring, and Women inDevelopment; GATT/WTO and UNCTAD on free trade, economic develop-ment, and commodity prices or agreements; WHO on Codex Alimentarius, ICN,and AIDS; IAEA on food irradiation; and WMO on global early warning sys-tems. For recommendations on consolidation, synthesis, and coordination with-in the UN system to meet the need for a wider support base, see generally ESKINECHILDERS & BRIAN URQUHART, RENEWING THE UNITED NATIONS SYSTEM (1994)[hereinafter RENEWING THE UN SYSTEM].33 The Agreement establishing the International Fund for Agr icul tura lDevelopment (IFAD) as a specialized agency with capital funding operationswas adopted on June 13, 1976 by a Conference of Plenipotentiaries, based onResolution XIII of the World Food Conference in November 1974. After high-level consultations, the Director-General expected a 25% expansion in the jointprogram of work for FAO and IFAD in 1994. See CL 107/REP, supra note 3, App.D (Statement by the Director-General).


34 The World Food Program (WFP) is the UN system's largest single source ofgrant assistance. FAO handles distribution of food for WFP. The regular pledg-ing target for WFP's biennium is recommended by governments in theCommittee on Food Aid Policies and Programs (CFA) and separately endorsedby the FAO Council for approval by the Conference and by ECOSOC forapproval by the UN General Assembly. Both FAO and ECOSOC select membersof WFP's standing committees. WFP accounts for about half of total grant expen-diture for operational activities in Africa, and was the largest provider of grantassistance for environmental activities in developing countries and the largestpurchaser of food and services from them. Concern has been expressed that thebalance of WFP resources has swung increasingly towards emergency opera-tions with a corresponding decrease in development projects. See C 93/REP,paras. 217-220.35 The existing cooperation program with the World Bank was reviewed inApril 1994. Under the program, FAO's Investment Center assesses proposedinvestment projects of development banks, such as the World Bank and theAsian Development Bank, in the agricultural sector. As of November 1994, FAOwas involved in 55 investment projects in 38 countries. See CL 107/REP, supranote 3, para. 104 & App. D (Statement by the Director-General).36 See also Resolution 7/93, adopted by the 27th session of the Conference ofFAO, C 93/REP, paras. 105-108 (the.Conference directed FAO through theCommission on Plant Genetic Resources to harmonize the InternationalUndertaking on Plant Genetic Resources with the provisions of the Conventionon Biological Diversity in a manner which does not duplicate the work of thegoverning body of that Convention); COAG - CL 108/9, supra note 6, para. 62(FAO's Council recently directed FAO to collaborate closely with UNEP indeveloping a legally binding instrument on the Prior Informed Consent (PIC)procedure which would be consistent with GATT principles).37 See DG - CL 107/14, supra note 29, paras. 19-24 (changes include internalrestructuring of key FAO divisions, strengthening of regional offices, establish-ment of a cadre of national professional officers in country representationoffices, and redeployment of staff in joint divisions with the UN RegionalEconomic and Social Commissions).38 Due to budgetary constraints, posts have been frozen effectively for severalyears now, and new hiring is at a virtual standstill. Numerous divisions areunderstaffed, and human resources are not available to fulfill redirected regularprogram activities or additional tasks to follow up UNCED and the InternationalConference on Nutrition.39 DG - CL 107/14, supra note 29, para. 32.40 See CL 107/REP, supra note 3, paras. 196-204 (as part of a continuing processto improve both cost-efficiency and the effectiveness of FAO's governing bodies,the Council endorsed generally proposals made in the Director-General'sReview of the Working Methods of the Conference streamlining future meetingsin timing, duration, and agenda).41 The Office of Internal Audit, Inspection and Management Control is attacheddirectly to the Director-General's Office within FAO's administrative structure.This office undertook the internal audit. A separate audit report by the External


Auditor who is appointed by the Council, which reviewed the financial state-ments of the regular program and UNDP for the biennium 1992-1993, highlight-ed the need to balance delegation of authority to the field offices and retain ade-quate control and review by headquarters, particularly during the proposedinternal changes. FAO intends to publish a manual of financial rules and proce-dures which would reflect both the authority and powers delegated at each leveland the corresponding levels of responsibility and accountability. Controls wererecommended to identify cases of non-compliance with headquarters policy andprocedures. Additional training for field personnel in financial reportingrequirements, adequate use of imprests, and administrative procedures was rec-ommended. See CL107/REP, supra note 3, paras. 150-154.42 See id. paras. 140-149.« Id. paras. 205-209.44 See Foreign Assistance: U.S. Participation in FAQ's Technical Cooperation Program(GAO/NSIAD-94-32, Jan. 1994).45 For example, after a revaluation of FAO's activities in following up the 1980World Conference on Agrarian Reform and Rural Development (WCARRD),FAO's current activities emphasize: improving monitoring and evaluation (toredress the failure to develop a meaningful database from the years of countryreports to date); implementing the Minimum Plan of Action in Africa (to remedythrough training WCARRD's technical failures in Africa); and continuing regu-lar program activities to implement WCARRD's goals (to provide research andextension and to assist with policy formulation, especially in rural land mar-kets). See Report of tite Expert Consultation on Reorganization of Agrarian Structuresin Rapidly Changing Economic Environments, FAO, Rome, Dec. 12-14,1994.46 COFO - CL108/8, supra note 10, para. 37.47 C93/REP, paras. 145-151.48 The project concerning field information technology infrastructures, aimingat providing Wide Area Network services to all FAO office locations, is proceed-ing "according to schedule." Internal coordination, physical deployment, andtraining are being addressed. DG - CL 107/14, supra note 29, paras. 35-37.49 CL 107/REP, supra note 3, paras. 118-120. See also id. App. D (Statement bythe Director-General) (as of Nov. 1994, 26 member states had signed the TCDCagreement).50 For a discussion of recommendations to strengthen the UN system's capaci-ties to respond to humanitarian emergencies, see RENEWING THE UN SYSTEM,supra note 32, Chap. VII (Humanitarian Emergency Capacities).

VI. Oceans and the Environment

Activities within one country that harm the environment may wellhave an adverse effect on regional or global ecosystems. Many types ofpollution and many natural resources, such as fisheries, do not respectnational boundaries. Thus, successful efforts to prevent pollution andconserve natural resources require international cooperation.

The United Nations has played a central role in efforts to preventpollution, to conserve natural resources, and, more generally, to createlegal regimes for the major portions of the oceans and the atmospherethat lie outside the territory of any country. The United Nations and itsspecialized agencies have conducted significant studies of the oceansand the environment, and have advised and assisted countries concern-ing resource management. Such entities as the UN EnvironmentProgram have been at the center of efforts to develop treaties concerningthe oceans and the environment. The 1972 UN-sponsored Conference onthe Human Environment in Stockholm and the 1992 UN Conference onthe Environment and Development in Rio de Janeiro have been instru-mental in setting agendas and action plans to address environmentalissues.

The first Report in this section examines the UN Convention on theLaw of the Sea, which entered into force in November 1994. The Law ofthe Sea Convention contains rules to help ensure freedom of navigationfor military and commercial shipping. Convention provisions alsoaddress such issues as the exploitation of oceans resources, marine sci-entific research, maritime boundaries, environmental safeguards, andthe peaceful resolution of oceans disputes. The Recommendation andReport urges the United States to become a party to the Convention andto a July 1994 agreement that modifies the Convention's deep seabedmining regime, aspects of which the United States and other developedstates had found objectionable.

Global environmental challenges are the subject of the secondRecommendation and Report in this section. This Report, although writ-ten before the 1992 UN Conference on the Environment andDevelopment, highlights many of the issues of concern there. The

-I


Report succinctly surveys worldwide environmental concerns and therange of legal and institutional responses to such concerns. Theseresponses include the efforts of UN entities to study the environment, toconclude treaties, and to promote compliance with existing global andregional environmental agreements.

Oceans and the Environment 161

A. Recommendation and Report on the United Nations Conventionon the Law of the Sea*

Recommendation

BE IT RESOLVED, that the American Bar Association recommendsthat the United States become a party to the 1982 United NationsConvention on the Law of the Sea and to the Agreement Relating to theImplementation of Part XI of the United Nations Convention on the Lawof the Sea of 10 December 1982, dated July 29,1994.

Report

For the United States and the world, widespread adoption of a codi-fied rule of law for the oceans is of paramount importance. The 1982Convention on the Law of the Sea, which has now been accepted byover 60 nations and will enter into force November 16, 1994, will pro-vide a stable framework for the interaction of nations on oceans issues.Concerns of the United States and other major industrialized nationswith certain technical and institutional features of Part XI of theConvention, relating to deep seabed mining, have been addressed in aJuly 1994 Agreement Relating to the Implementation of Part XI of theUnited Nations Convention on the Law of the Sea, which will be inter-preted and applied together with Part XI as a single instrument. TheUnited States signed the 1994 Agreement on July 29,1994.

The 1982 United Nations Convention on the Law of the Sea definesrights and duties with respect to uses of the oceans. The Conventionguarantees transit passage through straits, the right of overflight overstraits, the right of sea lanes passage through archipelagic waters, andother navigational freedoms important to the United States. TheConvention provides a comprehensive framework of rules and principlesrelating to the protection of the marine environment. The Conventionalso satisfies important United States interests by establishing wide limitsto the continental shelf regime and defining the regime of the 200-mileexclusive economic zone. With respect to other issues as well — marinescientific research, management of fisheries and other marine resources,maritime jurisdiction and boundaries, and other lawful uses of the oceans

* This Recommendation was approved by the American Bar Association Houseof Delegates in August 1994. The Recommendation and Report were developedby John E. Noyes, Louis B. Sohn, and Houston Putnam Lowry. Previously pub-lished in 29 International Lawyer 252 (1995).


— the Convention will be particularly important to nations such as theUnited States whose public and private interests benefit from a stablelegal framework within which to conduct their activities.

Particularly in an era with new threats to United States securityposed by the end of the Cold War and by the rise of new nations andregional powers, it is important to seek long-term stability of rules relat-ed to the oceans. Unilateral claims of coastal nations can undermine andchange rules of the customary law of the sea. Unilateral assertions ofextensive national jurisdiction over the oceans can disrupt the balance ofrights and duties agreed upon in the 1982 Convention. The Conventionprovides treaty rules that are hard to change unilaterally.

The Convention contains institutional features that can help to pro-mote compliance with Convention norms and thus to stabilize the law ofthe sea. The Convention includes provisions for obligatory third-partyadjudication of many issues. The United States could choose to have atribunal review and pronounce on whether another nation's actionswere legal under the Convention. The presence of a comprehensive dis-pute settlement system also will help to deter violations and unreason-able unilateral interpretations of Convention norms. These dispute set-tlement mechanisms will not likely be available to the United States if itdoes not become a party to the Convention.

Although the United States was not among the 159 signatories of the1982 Convention on the Law of the Sea, its concerns with theConvention have been tied only to certain technical and institutional fea-tures of the seabed mining regime of Part XI. With regard to otherissues, the United States has supported the norms contained in theConvention. The President invoked the Convention and internationallaw in 1983 when he proclaimed a United States exclusive economiczone extending 200 miles from the United States coastline and encom-passing over 2,000,000 square miles. He also stated that "internationallaw, as reflected in the applicable provisions of the 1982 Convention onthe Law of the Sea" supported a broader jurisdiction over the territorialsea when, in 1988, he extended United States territorial waters from 3 to12 miles. United States representatives to the United Nations have notedthat the United Nations Convention on the Law of the Sea represents amajor accomplishment in the development of the international lawaffecting the oceans. The Convention was negotiated with the support ofthe U.S. Executive Branch and the Congress through four Democraticand Republican presidential administrations.

The American Bar Association recognized the difficulties containedin the Convention's deep seabed mining regime in a 1983 report. Theconcerns included:

L.


• Provisions that would actually deter future development ofdeep seabed minerals resources when such development shouldserve the interests of all countries;

• A decision-making process that would not give the United Statesor others a role that fairly reflects and protects their interests;

• Provisions that would allow amendments to enter into force forthe United States without its approval;

• Stipulations relating to mandatory transfer of private technolo-gy and the possibility of national liberation movements sharingin benefits; and

• The absence of assured access and security of tenure for futurequalified deep seabed miners to promote the development ofthese resources. (American Bar Association Section of Inter-national Law and Practice Report to the House of Delegates,August 1983, p. 5.)....

The United States government has never disputed the desirability ofan international agreement that retains other basic features of Part XI.Section 3 of the 1980 Deep Seabed Hard Mineral Resources Act, forexample, stated that the United States "does not... assert sovereignty orsovereign or exclusive rights or jurisdiction over, or the ownership of,any areas or resources in the deep seabed" and urged the Secretary ofState to negotiate a comprehensive law of the sea treaty to "give legaldefinition to the principle that the resources of the deep seabed are thecommon heritage of mankind." A widely accepted international regimefor the deep seabed can provide stable rules for future mining opera-tions and can deter unilateral coastal state expansion into internationalcommon areas.

The difficulties of the United States and other industrialized nationswith certain technical and institutional provisions of Part XI were dis-cussed at a series of consultations that began in 1990, undertaken at theinitiative of the United Nations Secretary-General. The Secretary-General's consultations sought to develop a way to achieve widespreadacceptance of the 1982 Convention by the time it entered into force. Theyled to the Agreement Relating to the Implementation of Part XI, whichwas adopted and opened for signature at the United Nations on July 29,1994. The Agreement makes the following fundamental changes to theseabed mining regime of Part XI that are responsive to the concerns ofindustrialized nations:

• Improves the prospects for future development of deep seabedminerals resources, when such development becomes economi-cally feasible, by (1) eliminating large annual fees miners wouldhave to pay prior to commercial production, (2) eliminating pro-


duction limitations (replacing such limitations with restrictionson the subsidization of seabed mining, based on the GeneralAgreement on Tariffs and Trade), (3) subjecting the Enterprise,the mining arm of the International Seabed Authority, to thesame obligations as other commercial mining enterprises, and(4) eliminating the requirement that parties fund the Enterprise'smining operations;

• Provides the United States with a greater role in the decision-making process, including decisions concerning the sharing ofbenefits derived from seabed mining, by (1) guaranteeing it aseat in the Council of the Authority, (2) allowing industrializednations acting in concert to block decisions in the Council whenit proves impossible to arrive at a consensus, (3) ensuring thatthe Assembly of the Authority will be able to act only uponCouncil recommendations, and (4) allowing the United States toblock decisions on important financial or budgetary matters inthe Finance Committee;

• Ensures that future amendments to the seabed mining regimecould not be adopted over United States objections;

• Eliminates any requirement that would compel the transfer ofprivate technology, and requires the Enterprise and developingnations to "seek to obtain such technology on fair and reason-able commercial terms and conditions on the open market, orthrough joint venture arrangements"; and

• Promotes access to seabed mining by U.S.-licensed multination-al consortia on terms "no less favorable than" terms given toentities whose mine site claims have already been registered bythe Law of the Sea Preparatory Commission.

In recognition of the fact that deep seabed mining operations are notnow commercially feasible, and are not expected to become so in thenext several decades, the Agreement acknowledges the need to establishand run international institutions only on an evolutionary, cost-effectivebasis. Thus, for example, the Enterprise will not become operationaluntil the Council so decides.

The 1994 Agreement Relating to the Implementation of Part XIincludes procedural devices that seek to promote widespread accep-tance of the 1982 Convention along with the new Agreement. Nationsthat in the future accept the 1982 Convention on the Law of the Sea mustalso accept the Agreement, which is to be interpreted and appliedtogether with the Convention as a single instrument. Nations that havealready ratified the Convention will be bound by the Agreement bysigning it, unless they take affirmative steps to indicate their intent notto be bound. In order to enter into force, the Agreement must be accept-


ed by forty nations, including seven developed nations. The Agreementwill apply provisionally for up to four years if it has not entered intoforce by November 16,1994, in order to give nations time to accept it.

The Section of International Law and Practice, in pursuance of GoalVIII and the establishment of a rule of law in relations among nations,strongly recommends that the United States become a party to the 1982United Nations Convention on the Law of the Sea along with the 1994Agreement Relating to the Implementation of Part XI.


B. Recommendation and Report on Protection of the GlobalEnvironment*

Recommendation

BE IT RESOLVED, that the American Bar Association urges theUnited Nations and each nation of the world to adopt and implementappropriate measures to ensure that activities within its jurisdiction orcontrol will be conducted with respect for Nature, and in a manner thataccounts for the interests of present and future generations; to developand foster policies and long-term strategic plans for sustainable develop-ment, encouraging the betterment of human life through conservationand efficient use of natural resources; and to cooperate with othernations and with international organizations in developing regional andworld-wide arrangements to preserve and protect the environment andto mitigate the effects of environmental damage.

Report

I. The Worldwide Environmental Concerns

The side effects of industrialization, aggravated by a swellinghuman population, are disturbing the web of elements on which life aswe know it depends. United Nations experts expect an additional threebillion people by 2025, with ninety-five percent of the increase occurringin the already hard-pressed, developing countries. What sort of worldwill it be? Warnings are being sounded in at least twelve major areas ofuncertainty.

Fresh Water: Worldwide, sources of potable and even agriculturalgrade water, both above-ground in rivers and below-ground in aquifers,are suffering from over-appropriation and pollution. In some nations,much of the water is reportedly too polluted even for industrial use.

Arable Land: Farmlands are under pressure, too. Rich topsoil iswashing away into rivers or, overgrazed and under-irrigated, blowing

I I*A large number of individuals contributed to the preparation of thisRecommendation and Report, including Sanford E. Gaines, Daniel B. Magraw,C.J. Poirier, Louis B. Sohn, Christopher D. Stone, and Tomme R. Young. TheRecommendation and Report, which was endorsed by the Tort and InsurancePractice Section, the Business Law Section, the Kansas City Metropolitan BarAssociation, and the Section of International Law and Practice, was previouslypublished in 26 International Lawyer 281 (1992).


away in the wind. Elsewhere, arable land is being lost or degraded. InAfrica, along the Sahel's 3000-mile front, more than ten million havebeen displaced by soil gone barren.

Forests: Forests are being stripped, stressed, and burned. In much ofthe Third World, the reduction in biomass signifies something worse.Almost one half the world's population depends on fuelwood as itsprincipal energy source. Deforestation represents yet another threat. Theglobe-spanning belt of tropical moist forests, now under increasing pres-sure, are particularly rich in plant and animal species, and constitute asignificant factor in drawing excess carbon dioxide out of the world'satmosphere. These tropical forests are believed to be particularly hard toreestablish, once ravaged.

The Oceans: The oceans are being tampered with. Modern technolo-gy is making it possible for the intensive fishing nations, having deplet-ed favored stocks along their own coasts, to sweep distant seas withhuge nylon driftnets thirty miles long, "the single most destructive fish-ing technology ever devised by man."

The coastal wetlands, a basic breeding ground for the replenishmentof marine life, are under the pressures of oil spills, commercial develop-ment, and sewage and waste. The deeper reaches of ocean floor are alsobeing affected by coastal runoff and wastes that are dumped into theoceans.

Biodiversity: Meanwhile, on land, plant and animal species arebeing eliminated or placed at risk. Some of the threat, such as to whales,elephants, and "game" animals, arises from killings that are coolly delib-erate. More commonly, the loss is the unintended consequence of dis-ruption of habitat by human development, or by the introduction of anexotic species which, unchecked by any native predator, destabilizes thelocal environment.

The consequent reduction in biological diversity is an impoverish-ment of nature. It also raises concern from humankind's point of view.Today, medicinal advances remain partially dependent upon a supplyof newly discovered natural ingredients from plants and animals. Thesame, yet-to-be-inventoried stock of genetic material is also of value toagriculture. This is because the crops which flourish in any decade are atthe risk of weakening or obliteration by disease, pests, or rapid shifts inclimate and soil conditions. In modern times the risk has been increasedby the spreading reliance, across vast harvest areas, of a single high-yield strain of each of a few crops (called "monoculture"). One insuranceagainst the risks of collapse has been to maintain a broad "portfolio" ofcrop varieties whose genetic codes are held untapped in the wilds. It isthis portfolio that we are now liquidating.

The Ozone Shield: In the stratosphere, the fragile layer of ozone thatshields life below from some of the sun's potentially most lethal harmful


ultraviolet radiation is under assault. There is now substantial evidencethat chlorofluorocarbons (CFCs), halons, and other gaseous by-productsof refrigerators, air conditioners, fire extinguishers, computer chip sol-vents, and certain other products are implicated in chemical reactionsthat may be depleting this protective layering. The thinner the ozonelayer, the more radiation will pass through to the earth's surface,increasing the incidence of skin cancer and cataracts.

The Atmosphere: Below the stratosphere, each year hundreds ofthousands of tons of carbon monoxide, nitrogen oxides, sulphur dioxide,hydrocarbons, and various particulates are discharged into the tropo-sphere (the layer of the atmosphere nearest the surface). There, theyengage in chemical reactions that may depress crop yields, affect humanhealth, and corrode materials. The effects are not only local: the atmos-phere currents can carry them to other regions and continents.

Climate: There is the possibility of far-reaching changes in climateparameters, such as cloud cover, temperature, precipitation, and storms.One apprehension is that we may be poised at the beginning of thegreenhouse effect. The planet is enveloped by layers of water vapor,ozone, carbon dioxide, and other gases through which incoming short-wave radiation from the sun can readily pass to heat the earth. But whenthe earth's surface re-radiates that heat in the form of long-wave(infrared) radiation, these same gases absorb some of the reboundingradiation, trapping heat somewhat in the manner of a greenhouse. Somesuch trapping is vital: without any "greenhouse" effect, the earth wouldbe perhaps 60° F colder than it is — essentially unlivable for most life-forms. The trouble is that many of the same gases that deplete the ozoneshield are allying with increased emissions of methane and carbon diox-ide (largely a by-product of humankind's fossil fuel consumption) tothicken the blanket of these "greenhouse gases" in the atmosphere. Thisthickening may threaten or may presage a shift in the radiation balance,resulting in the planet's capturing more radiation than it presently isreflecting back out into space. Projections as to the likely magnitude offuture temperature rise and its consequences vary. However, within therange of possible elevations in global temperature are values that couldintensify hurricanes, destabilize glaciers, raise sea levels, and transformpatterns of weather which influence agriculture, water, and energydemand. Some regions could benefit, while other regions, richly produc-tive today, could be adversely affected.

The Polar Regions: The Arctic and Antarctic are being polluted withfar-blown haze and the direct wastes of encroaching human outpostsand activities. In both zones, but particularly at the Southern continent,the prospects of oil and mineral exploitation, and of tourism, raise fearsof further sacrifice of some of the planef s most unique vistas, flora, andfauna.


Aggravated Tensions Between Rich and Poor Nations: Unfortunately,human disruption of the environment is not exclusively a result of ourhighly developed industrialized societies. Many developing countrieswant to achieve equivalent development. But such nations are not onlyunder pressure to provide the basic needs of burgeoning populations.They are under obligation, at the same time, to pay the interest on growingmountains of international debt, hi this context, many developing coun-tries, already resentful of growing wealth disparities, may particularlyresent criticisms about their supposed disregard of the environment, andhesitate to divert government funds into global clean-up efforts.Environmental awareness may have to attend upon economic develop-ment; and economic development, in turn, may depend upon some dedi-cated effort, and sacrifice, by the industrialized nations to help our neigh-bors build. Certainly, unchecked population growth cannot be ignored inany concerted effort to help more equalize standards of living among dif-ferent societies without sacrificing significant environmental values.

Hence, efforts to secure cooperation on environmental issues takesplace against an emotionally charged and complex international back-ground.

The Environment in War: Recent developments in military technol-ogy have added another dimension to the threats the environment faces:as a casualty of war. The specter of earth-as-casualty appears most omi-nously in connection with the "nuclear fall" many scientists predictwould follow an extensive nuclear exchange. But even hostilities on amore limited scale threaten the environment in disturbing new ways.The war in Southeast Asia demonstrated that the arsenals of advancednations already included, by the 1970s, such environmental modificationtechniques as defoliation. In the Persian Gulf War, there have beendeliberate discharges of oil into the Gulf and massive oil well fires there-by initiating at least temporary modifications in local and regionalweather patterns.

II. Social Choice in the Face of Uncertainty

The scientific sides of the debate can — and will — go on and on.For every self-concerning (negative feedback) mechanism that isadvanced as a possible solution to a particular problem, there seems tobe another theory suggesting a positive feedback, that is, a dynamic thatthreatens further aggravation of the problem. Moreover, any hoped-fortechnological "cures" may prove worse than the diseases they are aimedat.

As lawyers, we should avoid taking policy stands on controversialtechnical judgments beyond our competence. But even in the context ofconsiderable controversy at the margins, two considerations stand out.

1

h

*-,

"Iff1''


First, there are many environmental problems that require legalattention right now.

Second, as to the projected but uncertain future problems, it may begranted that the most dire scenarios, such as a melting of the polar icecaps, should be assigned a low probability, considered independently.But a truly catastrophic event, even adjusted for a low probability ofeventuation, and discounted for time, can still retain a "present value"that should command our present attention. Moreover, no one canexclude the possibility that some of the worrisome trends will behave innonlinear ways. Nor can we exclude as a real possibility that somepresently unforeseen combination of moderate trends will produce areaction with adverse worldwide implications. These problems are socomplex, and potentially of such magnitude, that long lead times andconsiderable marshalling of resources are required just to analyze, muchless to respond to, them.

III. What the Law Can Contribute

Across the world, the law and lawyers have become increasinglysensitive to the threats to the environment. The judicial system at all lev-els has been inventive in recruiting common and civil law doctrines suchas nuisance and trespass to check some of the damages from pollution.These efforts have been supplemented in all the industrial nations, butperhaps particularly in the United States, by an array of special legisla-tive enactments, including (for the U.S.) the National EnvironmentalPolicy Act (NEPA), the Endangered Species Act (ESA), the Clean WaterAct, the Clean Air Act, and the Comprehensive EnvironmentalResponse, Compensation, and Liability Act (CERCLA). (Some (e.g.,those relying previously on pre ante regulation), have been more effec-tive than others (those relying primarily on post hoc litigation)).

But even as the domestic environmental protection efforts havesurged, the pace and scope of global environmental problems haveincreased. In the main, each nation's laws stop at its territorial bound-aries. But environmental degradation is increasingly becoming an afflic-tion on both regional and global scales. In retrospect, the international-ization of the problems appears to have been destined from the start.

The law does not leave persons injured by actions of others outsidetheir country entirely without remedy. Theoretically, persons injured bytransboundary pollution can test the waters of the polluter's own fora,under the polluter's own laws. Such ventures have not been withoutsuccess. See Michie v. Great Lakes Steel Division, 495 F.2d 213 (6th Cir.1974), cert, denied, 419 U.S. 997 (1974), in which residents of the Windsorarea in Canada, in reaction to industrial pollution originating in the


Detroit area, chose private remedies in U.S. courts against responsibleU.S. corporations, in preference to initiating time-consuming interna-tional level remedies.

There are, under customary international law (that is, internationallaw absent some special treaty covering the subject), several fundamen-tal principles that can be brought to bear on such problems, enabling theinjured state to achieve diplomatic or even legal relief. See Trail SmelterCase (U.S. v. Can.), 3 R. Int'l Arb. Award 1905 (1941), in which theUnited States won an international arbitral award in consequence ofcontinuous transboundary air pollution from Canada. But the customarylegal principles have a distinctly limited usefulness. They come into playonly when there has been a violation of some sovereign's legally protect-ed interests, such as a violation of its territory or an injury to one of itscitizens. Those principles are thus inapplicable to the many "internal"problems such as a nation's extinction of its own, nonmigratory,wildlife, or the destruction of its own ecosystem or forest, where exter-nal effects — specifically, some element of "injury" to other sovereigns— are undemonstrable or de minimi's. Even where some nation's activi-ties, for example, intensive fishing of the high seas, or the massive burn-ing of its forests, do have significant extraterritorial effects (a reductionin fish yields, an adverse impact on the atmosphere and carbon budget),so long as the immediate consequences are limited to the global com-mons areas (the atmosphere, high seas, and other "unowned" — somethink, commonly owned — portions of the earth), it is uncertain that anyremedy or even standing can be drawn out of customary legal princi-ples. A protesting nation would be required to show that, albeit theglobal commons lay beyond its sovereignty, under the law, alteration inthe character of the commons provided a legal basis on which it couldbring suit. What would be involved include complex questions involv-ing the viability of the actio popularis and the status of wrongs erga omnes(against the community of nations). Such a claim has yet to be made,and its success, were it pressed to litigation, would appear at presentrather problematical.

Even in circumstances where a nation can show a measurable inva-sion of some interest that probably is legally protected (as, for example,in the case of its suffering blatant transboundary pollution), litigationunder customary law principles, while theoretically available, may failto stem environmental degradation for a number of reasons, includingthe following:

The Absence of Compulsory Jurisdiction in the World Order: De-pending upon the conditions of its acceptance, if any, of World Courtjurisdiction, the damage-causing state may simply refuse to appearbefore the World Court.

PIPF!


Problems of Proof. The obstacles to proving causal links and dealingwith joint causality are typically severe in the relevant situations. Thescientific models about such phenomena as acid rain are controversial;damage can be traced to several causal agents operating in associationwith one another, and originating from widely spread sources; methodsfor quantifying many "damages" to the environment, e.g., the eradica-tion of commercially valueless species, are highly controversial; and, inany event, judicially cognizable damage may not occur for generations.

Standards of State Accountability: It is widely accepted in interna-tional law that states are responsible for compliance, by themselves andby persons under their jurisdiction, with norms of international law,including those of environmental conduct. There remain, however,largely unresolved questions regarding the standard of conduct bywhich a defendant state is to be judged liable. Is Nation A to be chargedfor all pollution that wafts into Nation B, however innocently and dili-gently A behaved (strict or absolute liability)? Or will A be liable onlyfor damages that arose because it did something positively wrongful,such as breaching an internationally recognized rule, for example, fail-ure to give B timely notice of a spreading radiation peril as required bythe new (post-Chernobyl) agreement under the auspices of theInternational Atomic Energy Agency?

The Inadequacy of Relief: Even if the defendant appears, and proofis successful, injunctive relief, a principal prop in enforcing domesticenvironmental law, is rarely available in international legal practice.Damages, when awarded at all, tend to be computed more meagerlythan in comparable cases under prevailing U.S. practice. For example,punitive damages are unavailable, and what to U.S. courts would befairly commonplace elements of damages, such as the reduced value topollution-blighted businesses and property, may be rejected, as theywere in the Trail Smelter Case, above, as "too remote and indirect tobecome the basis ... for an award" (Decision, 16 April 1938, 3U.N.R.I.A.A. (1949)). The implication, when one considers that the suc-cess rate of pursuing "wrongful" (by some standards) polluters has to beless than unity, and when one considers the transaction costs of suit, isthat the realistically calculated damage deterrent a transfrontier polluterfaces is likely to fall far short of forcing it to internalize, and thereforeefficiently adjust for, the true measure of the damage it is causing theinternational community.

Enforcement Barriers: Indeed, even should courts finally hand downan award, in the absence of an international counterpart to the Full Faithand Credit clause of the U.S. Constitution, there is no guarantee it willbe enforced. Recently, after fourteen years of multinational litigation, aNetherlands court ruled in favor of Dutch plaintiffs against French inter-ests for salt pollution of the Rhine; when the victorious plaintiffs tried to

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collect on the judgment in France, the French court refused to recognizethe Dutch judgment. See 11 Int'l Env. Rep. (BNA) No. 12, at 652 (Dec. 14,1988).

These remarks are not intended to dismiss the value of litigation,either in municipal courts, subject to the forum's own law or customaryinternational law, or in international fora, under principles of customaryinternational law. But, unfortunately, most biosphere degradationoccurs too imperceptibly, too "innocently," too ubiquitously, and fromtoo many point sources to be stanched by the principles that existinglaw, domestic or international, makes available to potential plaintiffs.

The principal bulwarks to environmental protection will have tocome from:

(1) the voluntary enhancement of environment protection activityat the national level by individual nations; and

(2) cooperative efforts among nations to reach internationalaccords, i.e., treaty-made law, at the regional and global levels. .

In regard to the cooperative strategy, there are several virtues tosuch bi- and multi-party accords specially tailored to specific problems.First, the treaties can translate the rather nebulous contours of the cus-tomary law (essentially, sic utere tuo ut alienum non laedas: "don't useyour property (territory) in such a way as to injure that of others") into amore specific, reckonable, and realistic set of obligations. Second, treaty-makers can adopt an ex ante preventive approach, reducing or eliminat-ing injurious conduct before a situation has reached the stage wheresome plaintiff nation is able to establish a level of legal harm that by thattime may be irremediable. Third, the problem of injuries to, and repre-sentative standing for, the commons areas might be overcome by specialprovision designating an international body or nongovernmental orga-nization (NGO) as legal spokesperson for its environmental "ward."Fourth, means can be devised for compensating persons injured by pastactivities which while lawful when taken are now determined to besocially undesirable. Such means can spread those costs across society asa whole (through unilateral or bilateral governmental appropriations,contributions, or allowances) and avoid retroactive punishment of indi-viduals for acts lawful at the time they occurred.

International agreements on conservation of living resources,notably fishing agreements, have a long history. As far back as 1911 theUnited States, Great Britain, Russia, and Japan had reached agreementon the Preservation and Protection of Fur Seals in the North Pacific andArctic region. There are several accords on marine pollution going backto the 1954 Convention for the Prevention of Pollution of the Seas by Oil.

But the growth of international environmental law, and awarenessof the environment's jeopardy, received major new impetus in 1972 with


the UN-sponsored Conference on the Human Environment, held inStockholm. From that conference emerged the Stockholm Declaration onthe Human Environment, an aspirational manifesto, and an Action Planthat called for, among other things, the establishment of the UnitedNations Environment Program (UNEP).

With the encouragement of that conference, and in the wake ofincreased environmental consciousness worldwide, international envi-ronmental agreements have burgeoned. A suggestion of their range canbe gleaned from the titles of just a sampling: the Convention onInternational Trade in Endangered Species of Wild Flora and Fauna(1976); the Convention on Long-Range Transboundary Air Pollution(1979); the Convention on the Conservation of Antarctic Marine LivingResources (1980); the Vienna Convention for the Protection of the OzoneLayer (1985); the Basel Convention on the Control of TransboundaryMovements of Hazardous Wastes and their Disposal (1989).

Additionally, there has been an increase in the number of distinctlyregional environmental agreements, such as the 1974 Nordic Conventionon the Protection of the Environment, and the plans developed underthe UNEP Regional Seas Programme, which establishes cooperativeframeworks for nations bordering eleven major sea areas.

It is encouraging, too, that there has come into existence an impres-sive network of diverse governmental and nongovernmental organiza-tions that are engaged in monitoring the planetary environment andcoordinating the protective efforts. These include — in addition toUNEP — the Global Environmental Monitoring System (GEMS), theWorld Meteorological Organization (WMO), the IntergovernmentalPanel on Climate Change (IPCC), the International Maritime Organi-zation (IMO), the Group of Experts on Scientific Aspects of MarinePollution (GESAMP), the International Union for the Conservation ofNature and Natural Resources (IUCN), and the International Council ofScientific Unions (ICSU).

While one must be encouraged by the variety and velocity of thisactivity, much further legal and diplomatic effort is required. TheStockholm Declaration, above, in its oft-quoted Principle 22 resolved:

States shall co-operate to develop further the international lawregarding liability and compensation for the victims of pollu-tion and other environmental damage caused by activitieswithin the jurisdiction or control of such States to areas beyondtheir jurisdiction. (U.N. Doc. A/CONF.48/14/Rev.l (U.N.Pub.E 73.II.A.14 (1973)).

Then, too, while we need to rely more heavily on treaties, treatiesbind only those nations that agree to sign them. Therefore they can be


effective only if they can muster the signatures of nations having signifi-cant influence over the problem addressed. Such wide-spread consensusis hampered by the lingering scientific uncertainties, compounded bythe fact that many nations of the world are too hard-pressed by immedi-ate economic needs to put long-term environmental activities at the topof their agenda. The developing countries may insist upon some form ofcompensation as a condition of entering into environmental accords. Inyet other situations, there are substantive conflicts in values. The powersof the international environmental organizations are restricted to mak-ing recommendations, educating, and encouraging interaction. And, ofcourse, even where positive obligations are specified, the enforcementprovisions and mechanisms are largely uncertain.

IV. Conclusion

In conclusion, we believe that the issues of global environmentaldegradation, and of the welt-being of future generations, deserve a high-er level of public and professional attention. Law in its way, no less thanscience in its, must contribute what it can to protect us from environ-mental perils. Accordingly, we recommend that the American BarAssociation urge the furtherance of appropriate legal and institutionalresponses.

Beyond this, the subject area is admittedly too complex to essayendorsement of detailed proposals by a large, diverse corporate body.We have therefore avoided advocacy of any specific action or policyinstrument. Instead, we have recommended a Resolution that we urgepolicy makers to consider as the basis for further discussions and appro-priate action.

VII. The Development of International Law

The United Nations has contributed significantly to the developmentand codification of many areas of international law. Reports in other sec-tions of this book have noted the contributions of the UN specializedagencies and the International Atomic Energy Agency, and of other UNbodies that work with human rights, the oceans, and the environment.Not emphasized in those Reports, but an important contributor to codi-fication efforts, is the International Law Commission. This body of inde-pendent experts in international law is charged pursuant to Article 13 ofthe UN Charter with initiating studies and making recommendations toencourage "the progressive development of international law and itscodification." Furthermore, the International Court of Justice helps todevelop and clarify international law in the course of rendering advisoryopinions or applying international legal norms to particular disputes;some significant ICJ decisions are noted in Appendix C.

Many treaties developed by the United Nations Commission onInternational Trade Law (UNCITRAL) and other UN bodies are of greatpractical importance to international businesses, for they establish stablerules and regulations governing the operation of transnational com-merce. The American Bar Association House of Delegates and Board ofGovernors have adopted Recommendations, and the Section ofInternational Law and Practice and other ABA sections have endorsedaccompanying Reports, relating to UN codification efforts that involvetechnical issues of particular interest to businesses and to lawyers in pri-vate practice. These Recommendations and Reports are not reproducedhere. The following list of topics with which they have dealt does, how-ever, suggest that the United Nations has helped to develop legal stan-dards relating to a wide range of issues essential to the conduct of inter-national transactions and to the litigation and arbitration of privateinternational disputes: the UN Convention on Bills of Exchange andInternational Promissory Notes (Recommendation approved by theABA House of Delegates in 1990); the UN Convention on the LimitationPeriod in the International Sale of Goods (Recommendation approved in

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1989; published in 24 International Lawyer 583 (1990)); an InternationalLaw Commission study on sovereign immunity (Recommendationapproved in 1987; published in 22 International Lawyer 906 (1988)); theUN Convention on the International Sale of Goods (Recommendationapproved in 1981); the UN Convention on the Recovery Abroad ofMaintenance (Recommendation approved in 1980); and the UN Con-vention on the Recognition and Enforcement of Foreign Arbitral Awards(Recommendation approved in 1974).

VIII. Payments to the United Nations

The United Nations can function only if its Member States pay theirassessed obligations. Although a few UN operations are aided by volun-tary contributions from states, most are funded through payments ofassessments set by the UN General Assembly in accordance with Article17 of the UN Charter. Assessments are based generally on each coun-try's capacity to pay, although the world's poorest states pay more thanthey would if assessments were based strictly on a proportion of theirgross national product. Conversely, the United States is assessed at alower percentage of its gross national product than other states.

The current financial crisis at the United Nations is severe, as notedin the General Introduction by Louis B. Sohn and H. Francis Shattuck,Jr., and in the letter in this section from ABA President George E.Bushnell, Jr. The United States has been seriously in arrears in paying itsassessed UN expenses since the 1980s, and its outstanding debt to theUnited Nations is now significantly greater than that of any other coun-try.

The American Bar Association has taken the firm position that theUnited States should pay its debt to the United Nations. Support for theABA position is grounded in reasons both of policy and law. From a pol-icy perspective, the argument is that the United Nations has many con-crete accomplishments — many of them reflected in the Reports includ-ed in this book — that have benefitted the United States and the world.The United States should work with the United Nations to make itsoperations more effective where more effectiveness is needed, ratherthan, by refusing to pay its debt, cripple the UN's ability to operate at allor bankrupt the Organization. For many, there is also something shame-ful about the United States voting to authorize peacekeeping operationsin the UN Security Council, and then refusing to pay the assessmentsthat are necessary for these operations to be carried out.

There is also a strong legal reason why the United States should payits debt to the United Nations. The obligation to pay expenses of theUnited Nations as apportioned by the General Assembly is explicitly setforth in Article 17 of the UN Charter. This obligation is binding on the

179

IffflFj


United States as a matter of international law, because the United Statesvoluntarily accepted the United Nations Charter as a treaty. The legalargument is developed in the first Report in this section, which alsostresses the fundamental importance of U.S. adherence to the rule oflaw.

The second document in this section, a letter from ABA PresidentGeorge E. Bushnell, Jr., written in August 1995, notes some of theadverse consequences — for the United States as well as for the UnitedNations — should the United States not fulfill its legal obligation to payits UN assessments. Another resolution adopted by the ABA House ofDelegates in 1992, which is not reproduced in this section, also encour-aged the United States to pay its arrears to the United Nations. It urged,"as a matter of highest priority, that the executive and legislativebranches of the United States Government pay immediately and in full,the United States' debt to the United Nations for its regular andpeacekeeping expenses."

Payments to the United Nations 181

A. Recommendation and Report on U.S. Payments to the UnitedNations*

Recommendation

BE IT RESOLVED, that the American Bar Association urges theexecutive and legislative branches of the United States Government totake cooperative action so that payment will be made without delay tothe United Nations, including its specialized agencies, of all amountsassessed to the United States.

Report

... [T]he UN has adopted procedures on budgetary matters thatrequire a consensus of all nations, effectively giving the U.S. a veto.12 ...UN specialized agencies ... have adopted consensus voting on bud-getary matters. In the Foreign Relations Authorization Act, Fiscal Years1988 and 1989, the Congress found that "the consensus based decision-making procedure established by General Assembly Resolution 41/213is a significant step toward complying with the intent" of theKassebaum amendment [Pub. L. No. 99-93, § 144, 99 Stat. 405, 424,approved Aug. 16,1985].13

Secretary of State Schultz called for restoration of U.S. contributionsto their proper level to take account of these reforms.14 The rationale forthe Kassebaum cutbacks is no longer valid.

Under international law, the [U.S.] withholdings were never valid,since they are nullifications of U.S. obligations under Article 17 of theUN Charter: "1. The General Assembly shall consider and approve thebudget of the Organization. 2. The expenses of the Organization shall beborne by the Members as apportioned by the General Assembly." Theuse of the word "shall," the travaux preparatories, and prevailing statepractice indicate that assessments adopted under Article 17 are bind-ing^

hi the Certain Expenses advisory opinion,16 the International Court ofJustice held that expenditures for a General Assembly peacekeepingoperation did constitute expenses of the Organization within the mean-

* This Recommendation was adopted by the American Bar Association House ofDelegates in August 1988. Gregory H. Stanton prepared the Recommendationand Report, which was endorsed by the Section of International Law andPractice, the Standing Committee on World Order Under Law, and the Sectionof Individual Rights and Responsibilities. Previously published in 22International Lawyer 1281 (1988).


ing of Article 17. The U.S. Congress enacted a resolution expressing sat-isfaction with the decision, saying it provided "a sound basis for obtain-ing prompt payment of assessments ... by making them obligations ofall members of the United Nations."17

On March 17,1987, U.S. Secretary of State Shultz testified before theHouse Foreign Affairs Committee's Subcommittee on InternationalOperations that the U.S. is "obligated, obligated, to pay" its UN assess-ments (his emphasis). "We're on the line at the UN," he said. "We saidthat if they change, we would live up to our obligations."18 The UN haschanged its voting procedures on budgetary matters. The budget cutsunder the Kassebaum amendment should be restored.

The Gramm-Rudman-HoUrngs cutbacks [Pub. L. No. 99-177, 99 Stat.1037, approved Dec. 12,1985] and the withholdings for specific UN pro-grams are also violations of the U.S. obligation to pay under Article 17 ofthe UN Charter. The UN Charter is a multilateral treaty to which theU.S. is a party. It is part of the supreme law of the United States underArticle VI of the Constitution.

The Vienna Convention on the Law of Treaties states, "A party maynot invoke the provisions of its internal law as justification for its failureto perform a treaty."19 Although the U.S. has not ratified the ViennaConvention, it is "recognized as the authoritative guide to current treatylaw and practice."20

A U.S. court has held that in U.S. law, later acts of Congress super-sede earlier treaty obligations when the two conflict.21 The treaty obliga-tions nevertheless remain, and violations of those obligations continueto be violations of international law. But violations of the United NationsCharter should stand in a different category than supersession of anordinary treaty. The UN Charter is of constitutional importance to inter-national law. "To an international instrument of this stature, the 'later intime' overruling canon should not apply.... The rules derived from theCharter prevail not only over earlier law but also over later statutes."22

If the United States is to be ruled by law, unilateral nullification bynational governments must become the lawlessness of the past.Arguments that the U.S. is only obligated to pay assessments it consid-ers "reasonable" or "responsive to U.S. interests,"23 are simply assertionsthat the U.S. may violate the UN Charter as it sees fit. The "GoldbergCorollary" that "if any member can insist on making an exception to theprinciple of collective financial responsibility with respect to certainactivities of the organization, the United States reserves the same optionto make exceptions if, in our view, strong and compelling reasons existfor doing so"24 is another assertion of the right of unilateral nullificationand is contrary to international law.25 Withholding under the ultra viresdoctrine shares the same fatal fault.26

. - . . .

i •;,_•:•,-v^ri--1 is£-.''v.-S

"T-.-.T;*#&$|Sfcj!gS- J ' - - ••'.'-.i-Vii'S.-*"


Some have argued that U.S. withholding is simply reciprocity, justi-fied by withholdings by seventeen other nations, most members of theSoviet bloc. But violation of a multilateral treaty by one party (or seven-teen) does not justify violation by others. The U.S. has since 1980 becomeby far the largest withholder. Even the Soviet Union has paid most UNregular assessments in full. Its withholdings have been for UN peace-keeping operations. Recently Secretary Gorbachev announced that theSoviet Union would pay its arrearages in installments extending overseveral years, including those for peacekeeping operations.27 Should theU.S. continue to be the most flagrant budgetary scofflaw in the UnitedNations system?

We cannot afford not to pay. Relative to our national budget, theamount we owe to the United Nations is small. But for the future of theUnited Nations, the amount we have not paid looms very large indeed.We cannot afford to let the UN go bankrupt. As Secretary of State Shultzhas stated:

Our membership and active participation in internationalorganizations benefit us in many ways. They provide perma-nent forums in which we seek support for our policies, ourinterests and our values, as well as to pursue multilateral pro-grams which advance those interests. They provide a meansof settling disputes peacefully, furthering human rights andpromoting cooperation in development assistance, agricul-ture, technology, health and transportation.28

UN assessments for the UN regular budget and for peacekeepingexpenses are legal obligations of the U.S. under international law. TheUN's specialized agencies are important forces for promotion of the ruleof law and the well-being of mankind.

The U.S. was a leader in the drafting of the UN Charter. We freelyaccepted the legal obligation to pay our assessments when the Senate[gave its advice and consent to ratification of] the Charter and made itpart of the supreme law of the U.S. It would be tragic if the U.S. contin-ues to violate international law and abdicates its leadership and even itsvote in the United Nations. The U.S. should pay all of its assessments,including its arrearages, in full.

The American Bar Association is committed under its Goal Vffl tothe advancement of the rule of law in the world. The ABA should urgethe U.S. Congress and the President to honor our legal obligations underthe UN Charter. We, of all nations, should pay our assessments to theUnited Nations, for we are a nation committed to the rule of law. For allits flaws the United Nations remains one of the best hopes for advance-ment of the rule of law in the world.


Endnotes

12 G.A. Res. 41/213, 41 U.N. GAOR, 41st Sess., Supp. No. 53 at 57, U.N. Doc.A/41/53 (1987).13 Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, § 702, H.R.CONF. REP. No. 475,100th Cong., 1st Sess. at 59 (1987).14 Authorizing Appropriations for Fiscal Years 1988-89 for the Department of State,the U.S. Information Agency, the Voice of America, the Board for International

.broadcasting and for Other Purposes: Hearings and Markup on H.R. 1777 Before theHouse Comm. on Foreign Affairs and Its Subcomm. on International Operations, 100thCong., 1st Sess. 272 (1988) (Schultz, prepared testimony of Mar. 17, 1987, at 16)[hereinafter cited as Shultz testimony].15 Richard W. Nelson, Current Developments: International Law and U.S.Withholding of Payments to International Organizations, 80 AM. J. INT'L L. 973, 978(1986).16 19621.C.J. 151 (Advisory Opinion of July 20).17 22 U.S.C. § 287k (1982) (Pub. L. No. 87-731, § 5, 76 Stat. 696, approved Oct. 2,1962).18 Shultz testimony, supra note 14.19 Vienna Convention on the Law of Treaties, art. 27, May 22, 1969, U.N.T.S.Regis. No. 18,232, U.N. Doc. A/CONF.39/27 (1969).20 Vienna .Convention on the Laiv of Treaties, S. EXEC. Doc. No. L, 92d Cong., 1stSess. 1 (1971) (message from Department of State to U.S. Senate).21 Diggs v. Shultz, 470 F.2d 461, 465 (D.C. Cir. 1972).22 Louis B. Sohn, Remarks, 63 AM. SOC'Y INT'L L. PROC. 180 (1969).23 Impact of Gramm-Rudman-Hollings on U.S. Contributions to InternationalOrganizations; Hearings Before the Subcomm. on Human Rights and InternationalOrganizations and tiie Subcomm. on International Operations of the House Comm. onForeign Affairs, 99th Cong., 2d Sess. 6 (1986) (statement of Alan L. Keyes); ForeignAssistance Legislation for FY88-FY89 (Part 4): U.S. Voluntary Contributions toInternational Organizations: Hearing Before the Subcomm. on Human Rights andInternational Organizations of the House Comm. on Foreign Affairs, 100th Cong., 1stSess. 66 (1987) (statement of Alan L. Keyes).24 U.N. Doc. A/5916/Add.l (1965), reprinted in 53 DEP'T ST. BULL. 454-57 (1965).25 See supra text accompanying notes 15-17.26 See Thomas M. Franck, Unnecessary UN-Bashing Should Stop, 80 AM. J. INT'L L.336 (1986).27 Soviets Plan to Pay 30-Year U.N. Debt, WASH. POST, Oct. 16,1987, at A30.28 Shultz testimony, supra note 14, at 17.


B. Letter from ABA President George E. Bushnell, Jr., ConcerningU.S. Payments to the United Nations*

As you know, there have been a number of recent sharp attacks onthe United Nations in Congress. I am writing to express the strong viewof the American Bar Association that these attacks are unwarranted and,for the most part, based on misconceptions about the role that theUnited Nations is playing in the world today.

The ABA strongly believes that the United States should continue toprovide substantial support for the United Nations. This not only shouldinclude serving as a positive force for reform of the organization, butalso supporting its goals and principles and becoming a reliable partner,fiscal or otherwise, in its ongoing work.

The ABA has a long and pioud history of support for the UnitedNations. It played a major role in connection with the development ofthe United Nations, helped to draft the language which became embod-ied in the United Nations Charter, and has provided continuous supportof the United Nations since its creation. The leaders of the American BarAssociation were present in San Francisco at the signing of the Charter.As part of its longstanding support for the United Nations, the ABA hasmaintained and funded a Standing Committee on World Order UnderLaw, with a specific goal of developing and maintaining a close liaisonrelationship between the United Nations and the ABA.

The ABA believes that the United Nations' legacy is one of substan-tial importance. Its contributions and achievements towards peace andthe betterment of the citizens of the member states throughout the yearshave been many. While the organization is not free from fault or failure,it has for the past fifty years been a critical instrument for peace and acatalyst for peaceful political and legal change throughout the world.The ABA believes that the United States should not gravitate towards amore isolationist policy in the wake of the Cold War; rather, it shouldwork to achieve further effectiveness and reform of the United Nations,its specialized agencies, and the fulfillment of its goals.

The ABA hopes that, as a part of ongoing support for the UnitedNations, the United States government will promptly discharge its cur-rent fiscal obligations to the United Nations. As of March 15, 1995, theUnited States owed $212.1 million to the United Nations regular budgetfor years prior to 1995, and $315 million for calendar year 1995. The totaloutstanding peacekeeping operations arrears were $513.7 million.

* Written August 7, 1995 to The Honorable Richard Armey, U.S. House ofRepresentatives Majority Whip.


Accordingly, the total outstanding obligations to both United Nationsregular budget and peacekeeping were nearly $1.041 billion as of mid-March, 1995.

We are aware that the United States government previously haswithheld payments to the United Nations as an inducement to adoptbudgetary and fiscal reforms. It is the position of the ABA that theUnited States government should pay its obligations on a current basisregardless of its desire to achieve budgetary and fiscal reforms. Further,the ABA believes that sufficient reforms have taken place such that thereis no longer a basis to withhold payment for that reason in any event. Ata meeting I attended with Secretary-General Boutros Boutros-Ghali inNew York, on Friday, May 19,1995, as part of the annual meeting of theABA's Standing Committee on World Order Under Law with the UnitedNations, Secretary-General Boutros-Ghali reported that the budget ofthe United Nations has been reduced, cost-cutting measures had beentaken, and substantial fiscal reforms have taken place. In addition, theOffice of the Inspector General, the creation of which was strongly urgedby the United States, has been established. For the foregoing reasons, wehope that you will take the necessary steps in the current budgetaryprocess to ensure that the current obligations are promptly discharged,and that you will support a policy to promptly pay all future obligationsof the United States to the United Nations.

In addition, the ABA has not supported a reduction in the propor-tion of the United Nations' budget which is assessed to the UnitedStates. However, to the extent that the issue continues to be addressed,we urge that Congress give substantial deference to the ExecutiveBranch in its negotiations with respect to this issue. We believe thatnegotiation is the most appropriate vehicle for reaching an accordregarding this issue and that the United States should not take unilateralaction in that regard.

I, or the members of the ABA whom I may designate, would like toprovide testimony at any hearings which may take place before anycommittees of your body which might be focused on these issues.

Thank you for your consideration of this letter.

APPENDIX A

CHARTER OF THE UNITED NATIONS

June 26,1945, 59 Stat. 1031

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

to save succeeding generations from the scourge of war, which twicein our lifetime has brought untold sorrow to mankind, andto reaffirm faith in fundamental human rights, in the dignity andworth of the human person, in the equal rights of men and womenand of nations large and small, andto establish conditions under which justice and respect for the obli-gations arising from treaties and other sources of international lawcan be maintained, andto promote social progress and better standards of life in larger free-dom,

AND FOR THESE ENDS

to practice tolerance and live together in peace with one another asgood neighbors, andto unite our strength to maintain international peace and security,andto ensure, by the acceptance of principles and the institution ofmethods, that armed force shall not be used, save in the commoninterest, andto employ international machinery for the promotion of the econom-ic and social advancement of all peoples,

HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISHTHESE AIMS.

Accordingly, our respective Governments, through representativesassembled in the city of San Francisco, who have exhibited their full

187


powers found to be in good and due form, have agreed to the presentCharter of the United Nations and do hereby establish an internationalorganization to be known as the United Nations.

CHAPTER I

PURPOSES AND PRINCIPLES

Article 1

The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: totake effective collective measures for the prevention and removal ofthreats to the peace, and for the suppression of acts of aggression orother breaches of the peace, and to bring about by peaceful means, andin conformity with the principles of justice and international law, adjust-ment or settlement of international disputes or situations which mightlead to a breach of the peace;

2. To develop friendly relations among nations based on respectfor the principle of equal rights and self-determination of peoples, andto take other appropriate measures to strengthen universal peace;

3. To achieve international cooperation in solving internationalproblems of economic, social, cultural, or humanitarian character, and inpromoting and encouraging respect for human rights and for funda-mental freedoms for all without distinction as to race, sex, language, orreligion; and

4. To be a center for harmonizing the actions of nations in theattainment of these common ends.

Article 2

The Organization and its Members, in pursuit of the Purposes statedin Article 1, shall act in accordance with the following Principles.

1. The Organization is based on the principle of the sovereignequality of all its Members.

2. All Members, in order to ensure to all of them the rights andbenefits resulting from membership, shall fulfil in good faith the obliga-tions assumed by them in accordance with the present Charter.

3. All Members shall settle their international disputes by peacefulmeans in such a manner that international peace and security, and jus-tice, are not endangered.

Appendix A: The UN Charter 189

4. All Members shall refrain in their international relations fromthe threat or use of force against the territorial integrity or political inde-pendence of any state, or in any other manner inconsistent with thePurposes of the United Nations.

5. All Members shall give the United Nations every assistance inany action it takes in accordance with the present Charter, and shallrefrain from giving assistance to any state against which the UnitedNations is taking preventive or enforcement action.

6. The Organization shall ensure that states which are notMembers of the United Nations act in accordance with these Principlesso far as may be necessary for the maintenance of international peaceand security.

7. Nothing contained in the present Charter shall authorize theUnited Nations to intervene in matters which are essentially within thedomestic jurisdiction of any state or shall require the Members to submitsuch matters to settlement under the present Charter; but this principleshall not prejudice the application of enforcement measures underChapter VII.

CHAPTER II

MEMBERSHIP

Article 3

The original Members of the United Nations shall be the stateswhich, having participated in the United Nations Conference onInternational Organization at San Francisco, or having previously signedthe Declaration by United Nations of January 1, 1942, sign the presentCharter and ratify it in accordance with Article 110.

Article 4

1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the presentCharter and, in the judgment of the Organization/ are able and willing tocarry out these obligations.

2. The admission of any such state to membership in the UnitedNations will be effected by a decision of the General Assembly upon therecommendation of the Security Council.

Article 5

A Member of the United Nations against which preventive orenforcement action has been taken by the Security Council may be sus-


pended from the exercise of the rights and privileges of membership bythe General Assembly upon the recommendation of the SecurityCouncil. The exercise of these rights and privileges may be restored bythe Security Council.

Article 6

A Member of the United Nations which has persistently violated thePrinciples contained in the present Charter may be expelled from theOrganization by the General Assembly upon the recommendation of theSecurity Council.

CHAPTER III

ORGANS

Article 7

1. There are established as the principal organs of the UnitedNations: a General Assembly, a Security Council, an Economic andSocial Council, a Trusteeship Council, an International Court of Justice,and a Secretariat.

2. Such subsidiary organs as may be found necessary may beestablished in accordance with the present Charter.

The United Nations shall place no restrictions on the eligibility ofmen and women to participate in any capacity and under conditions ofequality in its principal and subsidiary organs.

CHAPTER IV

THE GENERAL ASSEMBLY

Composition

Article 9

1. The General Assembly shall consist of all the Members of theUnited Nations.

2. Each Member shall have not more than five representatives inthe General Assembly.


Functions and Powers

Article 10

The General Assembly may discuss any questions or any matterswithin the scope of the present Charter or relating to the powers andfunctions of any organs provided for in the present Charter, and, exceptas provided in Article 12, may make recommendations to the Membersof the United Nations or to the Security Council or to both on any suchquestions or matters.

Article 11

1. The General Assembly may consider the general principles ofcooperation in the maintenance of international peace and security,including the principles governing disarmament and the regulation ofarmaments, and may make recommendations with regard to such prin-ciples to the Members or to the Security Council or to both.

2. The General Assembly may discuss any questions relating to themaintenance of international peace and security brought before it by anyMember of the United Nations, or by the Security Council, or by a statewhich is not a Member of the United Nations in accordance with Article35, paragraph 2, and, except as provided in Article 12, may make recom-mendations with regard to any such questions to the state or states con-cerned or to the Security Council or to both. Any such question onwhich action is necessary shall be referred to the Security Council by theGeneral Assembly either before or after discussion.

3. The General Assembly may call the attention of the SecurityCouncil to situations which are likely to endanger international peaceand security.

4. The powers of the General Assembly set forth in this Articleshall not limit the general scope of Article 10.

Article 12

1. While the Security Council is exercising in respect of any dis-pute or situation the functions assigned to it in the present Charter, theGeneral Assembly shall not make any recommendation with regard tothat dispute or situation unless the Security Council so requests.

2. The Secretary-General, with the consent of the Security Council,shall notify the General Assembly at each session of any matters relativeto the maintenance of international peace and security which are beingdealt with by the Security Council and shall similarly notify the GeneralAssembly, or the Members of the United Nations if the GeneralAssembly is not in session, immediately the Security Council ceases todeal with such matters.


Article 13

1. The General Assembly shall initiate studies and make recom-mendations for the purpose of:

(a) promoting international cooperation in the political fieldand encouraging the progressive development of internationallaw and its codification;(b) promoting international cooperation in the economic,social, cultural, educational, and health fields, and assisting inthe realization of human rights and fundamental freedoms forall without distinction as to race, sex, language, or religion.

2. The further responsibilities, functions, and powers of theGeneral Assembly with respect to matters mentioned in paragraph l(b)above are set forth in Chapters IX and X.

Article 14

Subject to the provisions of Article 12, the General Assembly mayrecommend measures for the peaceful adjustment of any situation,regardless of origin, which it deems likely to impair the general welfareor friendly relations among nations, including situations resulting froma violation of the provisions of the present Charter setting forth thePurposes and Principles of the United Nations.

Article 15

1. The General Assembly shall receive and consider annual andspecial reports from the Security Council; these reports shall include anaccount of the measures that the Security Council has decided upon ortaken to maintain international peace and security.

2. The General Assembly shall receive and consider reports fromthe other organs of the United Nations.

Article 16

The General Assembly shall perform such functions with respect tothe international trusteeship system as are assigned to it under ChaptersXII and XIII, including the approval of the trusteeship agreements forareas not designated as strategic.

Article 17

1. The General Assembly shall consider and approve the budget ofthe Organization.

. 2. The expenses of the Organization shall be borne by the Membersas apportioned by the General Assembly.


3. The General Assembly shall consider and approve any financialand budgetary arrangements with specialized agencies referred to inArticle 57 and shall examine the administrative budgets of such special-ized agencies with a view to making recommendations to the agenciesconcerned.

Voting

Article 18

1. Each member of the General Assembly shall have one vote.2. Decisions of the General Assembly on important questions shall

be made by a two-thirds majority of the members present and voting.These questions shall include: recommendations with respect to themaintenance of international peace and security, the election of the non-permanent members of the Security Council, the election of the mem-bers of the Economic and Social Council, the election of the members ofthe Trusteeship Council in accordance with paragraph l(c) of Article 86,the admission of new Members to the United Nations, the suspension ofthe rights and privileges of membership, the expulsion of Members,questions relating to the operation of the trusteeship system, and bud-getary questions.

3. Decisions on other questions, including the determination ofadditional categories of questions to be decided by a two-thirds majori-ty, shall be made by a majority of the members present and voting.

Article 19

A Member of the United Nations which is in arrears in the paymentof its financial contributions to the Organization shall have no vote inthe General Assembly if the amount of its arrears equals or exceeds theamount of the contributions due from it for the preceding two full years.The General Assembly may, nevertheless, permit such a Member to voteif it is satisfied that the failure to pay is due to conditions beyond thecontrol of the Member.

Procedure

Article 20

The General Assembly shall meet in regular annual sessions and insuch special sessions as occasion may require. Special sessions shall beconvoked by the Secretary-General at the request of the Security Councilor of a majority of the Members of the United Nations.


Article 21

The General Assembly shall adopt its own rules of procedure. Itshall elect its President for each session.

Article 22

The General Assembly may establish such subsidiary organs as itdeems necessary for the performance of its functions.

CHAPTER V

THE SECURITY COUNCIL

Composition

Article 23"

1. The Security Council shall consist of fifteen Members of theUnited Nations. The Republic of China, France, the Union of SovietSocialist Republics, the United Kingdom of Great Britain and NorthernIreland, and the United States of America shall be permanent membersof the Security Council. The General Assembly shall elect ten otherMembers of the United Nations to be non-permanent members of theSecurity Council, due regard being specially paid, in the first instance tothe contribution of Members of the United Nations to the maintenanceof international peace and security and to the other purposes of theOrganization, and also to equitable geographical distribution.

2. The non-permanent members of the Security Council shall beelected for a term of two years. In the first election of the non-permanentmembers after the increase of the membership of the Security Councilfrom eleven to fifteen, two of the four additional members shall be cho-sen for a term of one year. A retiring member shall not be eligible forimmediate re-election.

3. Each member of the Security Council shall have one representa-tive.

1. In order to ensure prompt and effective action by the UnitedNations, its Members confer on the Security Council primary responsi-bility for the maintenance of international peace and security, and agree


Article 24

a Amended text of Article 23 that came into force August 31,1965.


that in carrying out its duties under this responsibility the SecurityCouncil acts on their behalf.

2. In discharging these duties the Security Council shall act inaccordance with the Purposes and Principles of the United Nations..Thespecific powers granted to the Security Council for the discharge ofthese duties are laid down in Chapters VI, VII, VIII, and XII.

3. The Security Council shall submit annual and, when necessary,special reports to the General Assembly for its consideration.

Article 25

The Members of the United Nations agree to accept and carry outthe decisions of the Security Council in accordance with the presentCharter.

Article 26

In order to promote the establishment and maintenance of interna-tional peace and security with the least diversion for armaments of theworld's human and economic resources, the Security Council shall beresponsible for formulating, with the assistance of the Military StaffCommittee referred to in Article 47, plans to be submitted to theMembers of the United Nations for the establishment of a system for theregulation of armaments.

Voting

Article 27>

1. Each member of the Security Council shall have one vote.2. Decisions of the Security Council on procedural matters shall be

made by an affirmative vote of nine members.3. Decisions of the Security Council on all other matters shall be

made by an affirmative vote of nine members including the concurringvotes of the permanent members; provided that, in decisions underChapter VI, and under paragraph 3 of Article 52, a party to a disputeshall abstain from voting.

Procedure

Article 28

1. The Security Council shall be so organized as to be able to func-tion continuously. Each member of the Security Council shall for thispurpose be represented at all times at the seat of the Organization.

b Amended text of Article 27 that came into force August 31,1965.


1

2. The Security Council shall hold periodic meetings at which eachof its members may, if it so desires, be represented by a member of thegovernment or by some other specially designated representative.

3. The Security Council may hold meetings at such places otherthan the seat of the Organization as in its judgment will best facilitate itswork.

Article 29

The Security Council may establish such subsidiary organs as itdeems necessary for the performance of its functions.

Article 30

The Security Council shall adopt its own rules of procedure, includ-ing the method of selecting its President.

Article 31

Any Member of the United Nations which is not a member of theSecurity Council may participate, without vote, in the discussion of anyquestion brought before the Security Council whenever the latter con-siders that the interests of that Member are specially affected.

Article 32

Any Member of the United Nations which is not a member of theSecurity Council or any state which is not a Member of the UnitedNations, if it is a party to a dispute under consideration by the SecurityCouncil, shall be invited to participate, without vote, in the discussionrelating to the dispute. The Security Council shall lay down such condi-tions as it deems just for the participation of a state which is not aMember of the United Nations.

CHAPTER VI

PACIFIC SETTLEMENT OF DISPUTES

Article 33

1. The parties to any dispute, the continuance of which is likely toendanger the maintenance of international peace and security, shall, firstof all, seek a solution by negotiation, enquiry, mediation, conciliation,arbitration, judicial settlement, resort to regional agencies or arrange-ments, or other peaceful means of their own choice.

2. The Security Council shall, when it deems necessary, call uponthe parties to settle their dispute by such means.

TAppendix A: The UN Charter 197

Article 34

The Security Council may investigate any dispute, or any situationwhich might lead to international friction or give rise to a dispute, inorder to determine whether the continuance of the dispute or situation islikely to endanger the maintenance of international peace and security.

Article 35

1. Any Member of the United Nations may bring any dispute, orany situation of the nature referred to in Article 34, to the attention ofthe Security Council or of the General Assembly.

2. A state which is not a Member of the United Nations may bringto the attention of the Security Council or of the General Assembly anydispute to which it is a party if it accepts in advance, for the purposes ofthe dispute, the obligations of pacific settlement provided in the presentCharter.

3. The proceedings of the General Assembly in respect of mattersbrought to its attention under this Article will be subject to the provi-sions of Articles 11 and 12.

Article 36

1. The Security Council may, at any stage of a dispute of the naturereferred to in Article 33 or of a situation of like nature, recommendappropriate procedures or methods of adjustment.

2. The Security Council should take into consideration any proce-dures for the settlement of the dispute which have already been adoptedby the parties.

3. In making recommendations under this Article the SecurityCouncil should also take into consideration that legal disputes should asa general rule be referred by the parties to the International Court ofJustice in accordance with the provisions of the Statute of the Court.

Article 37

1. Should the parties to a dispute of the nature referred to inArticle 33 fail to settle it by the means indicated in that Article, they shallrefer it to the Security Council.

2. If the Security Council deems that the continuance of the dis-pute is in fact likely to endanger the maintenance of international peaceand security, it shall decide whether to take action under Article 36 or torecommend such terms of settlement as it may consider appropriate.

Article 38

Without prejudice to the provisions of Articles 33 to 37, the SecurityCouncil may, if all the parties to any dispute so request, make recom-


mendations to the parties with a view to a pacific settlement of the dis-pute.

CHAPTER VII

I-1

'•'i"'

ACTION WITH RESPECT TO THREATS TO THE PEACE,BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

Article 39

The Security Council shall determine the existence of any threat tothe peace, breach of the peace, or act of aggression and shall make rec-ommendations, or decide what measures shall be taken in accordancewith Articles 41 and 42, to maintain or restore international peace andsecurity.

Article 40

In order to prevent an aggravation of the situation, the SecurityCouncil may, before making the recommendations or deciding upon themeasures provided for in Article 39, call upon the parties concerned tocomply with such provisional measures as it deems necessary or desir-able. Such provisional measures shall be without prejudice to the rights,claims, or position of the parties concerned. The Security Council shallduly take account of failure to comply with such provisional measures.

Article 41

The Security Council may decide what measures not involving theuse of armed force are to be employed to give effect to its decisions, andit may call upon the Members of the United Nations to apply such mea-sures. These may include complete or partial interruption of economicrelations and of rail, sea, air, postal, telegraphic, radio, and other meansof communication, and the severance of diplomatic relations.

Article 42

Should the Security Council consider that measures provided for inArticle 41 would be inadequate or have proved to be inadequate, it maytake such action by air, sea, or land forces as may be necessary to main-tain or restore international peace and security. Such action may includedemonstrations, blockage, and other operations by air, sea, or landforces of Members of the United Nations.

Article 43

1. All Members of the United Nations, in order to contribute to themaintenance of international peace and security, undertake to make


available to the Security Council, on its call and in accordance with aspecial agreement or agreements, armed forces, assistance, and facilities,including rights of passage, necessary for the purpose of maintaininginternational peace and security.

2. Such agreement or agreements shall govern the numbers andtypes of forces, their degree of readiness and general location, and thenature of the facilities and assistance to be provided.

3. The agreement or agreements shall be negotiated as soon as pos-sible on the initiative of the Security Council. They shall be concludedbetween the Security Council and Members or between the SecurityCouncil and groups of Members and shall be subject to ratification bythe signatory states in accordance with their respective constitutionalprocesses.

Article 44

When the Security Council has decided to use force it shall, beforecalling upon a Member not represented on it to provide armed forces infulfillment of the obligations assumed under Article 43, invite thatMember, if the Member so desires, to participate in the decisions of theSecurity Council concerning the employment of contingents of thatMember's armed forces.

Article 45

In order to enable the United Nations to take urgent military mea-sures, Members shall hold immediately available national air-force con-tingents for combined international enforcement action. The strengthand degree of readiness of these contingents and plans for their com-bined action shall be determined, within the limits laid down in the spe-cial agreement or agreements referred to in Article 43, by the SecurityCouncil with the assistance of the Military Staff Committee.

Article 46

Plans for the application of armed force shall be made by theSecurity Council with the assistance of the Military Staff Committee.

Article 47

1. There shall be established a Military Staff Committee to adviseand assist the Security Council on all questions relating to the SecurityCouncil's military requirements for the maintenance of internationalpeace and security, the employment and command of forces placed at itsdisposal, the regulation of armaments, and possible disarmament.

2. The Military Staff Committee shall consist of the Chiefs of Staffof the permanent members of the Security Council or their representa-

rr


lives. Any Member of the United Nations not permanently representedon the Committee shall be invited by the Committee to be associatedwith it when the efficient discharge of the Committee's responsibilitiesrequires the participation of that Member in its work.

3. The Military Staff Committee shall be responsible under theSecurity Council for the strategic direction of any armed forces placed atthe disposal of the Security Council. Questions relating to the commandof such forces shall be worked out subsequently.

4. The Military Staff Committee, with the authorization of theSecurity Council and after consultation with appropriate regional agen-cies, may establish regional subcommittees.

Article 48

\. The action required to carry out the decisions of the SecurityCouncil for the maintenance of international peace and security shall betaken by all the Members of the United Nations or by some of them, as•the Security Council may determine.

2. Such decisions shall be carried out by the Members of theUnited Nations directly and through their action in the appropriateinternational agencies of which they are members.

Article 49

The Members of the United Nations shall join in affording mutualassistance in carrying out the measures decided upon by the SecurityCouncil.

Article 50

If preventive or enforcement measures against any state are taken bythe Security Council, any other state, whether a Member of the UnitedNations or not, which finds itself confronted with special economicproblems arising from the carrying out of those measures shall have theright to consult the Security Council with regard to a solution of thoseproblems.

Article 51

Nothing in the present Charter shall impair the inherent right of indi-vidual or collective self-defense if an armed attack occurs against aMember of the United Nations, until the Security Council has taken mea-sures necessary to maintain international peace and security. Measurestaken by Members in the exercise of this right of self-defense shall beimmediately reported to the Security Council and shall not in any wayaffect the authority and responsibility of the Security Council under thepresent Charter to take at any time such action as it deems necessary inorder to maintain or restore international peace and security.


CHAPTER VIII

REGIONAL ARRANGEMENTS

Article 52

1. Nothing in the present Charter precludes the existence ofregional arrangements or agencies for dealing with such matters relatingto the maintenance of international peace and security as are appropri-ate for regional action, provided that such arrangements or agencies andtheir activities are consistent with the Purposes and Principles of theUnited Nations.

2. The Members of the United Nations entering into such arrange-ments or constituting such agencies shall make every effort to achievepacific settlement of local disputes through such regional arrangementsor by such regional agencies before referring them to the SecurityCouncil.

3. The Security Council shall encourage the development of pacificsettlement of local disputes through such regional arrangements or bysuch regional agencies either on the initiative of the states concerned orby reference from the Security Council.

4. This Article in no way impairs the application of Articles 34 and35.

Article 53

1. The Security Council shall, where appropriate, utilize suchregional arrangements or agencies for enforcement action under itsauthority. But no enforcement action shall be taken under regionalarrangements or by regional agencies without the authorization of theSecurity Council, with the exception of measures against any enemystate, as defined in paragraph 2 of this Article, provided for pursuant toArticle 107 or in regional arrangements directed against renewal ofaggressive policy on the part of any such state, until such time as theOrganization may, on request of the Governments concerned, be chargedwith the responsibility for preventing further aggression by such a state.

2. The term enemy state as used in paragraph 1 of this Articleapplies to any state which during the Second World War has been anenemy of any signatory of the present Charter.

Article 54

The Security Council shall at all times be kept fully informed ofactivities undertaken or in contemplation under regional arrangementsor by regional agencies for the maintenance of international peace andsecurity.

'

siiiS^fKs;fto "rAv- i >i*r.-fc i';;.-!?


CHAPTER IX

INTERNATIONAL ECONOMIC AND SOCIAL COOPERATION

Article 55

With a view to the creation of conditions of stability and well-beingwhich are necessary for peaceful and friendly relations among nationsbased on respect for the principle of equal rights and self-determinationof peoples, the United Nations shall promote:

(a) higher standards of living, full employment, and condi-tions of economic and social progress and development;(b) solutions of international economic, social, health, andrelated problems; and international cultural and educationalcooperation; and(c) universal respect for, and observance of, human rights andfundamental freedoms for all without distinction as to race, sex,language, or religion.

Article56

All Members pledge themselves to take joint and separate action incooperation with the Organization for the achievement of the purposesset forth in Article 55.

Article 57

1. The various specialized agencies, established by intergovern-mental agreement and having wide international responsibilities, asdefined in their basic instruments, in economic, social, cultural, educa-tional, health, and related fields, shall be brought into relationship withthe United Nations in accordance with the provisions of Article 63.

2. Such agencies thus brought into relationship with the UnitedNations are hereinafter referred to as specialized agencies.

Article 58

The Organization shall make recommendations for the coordinationof the policies and activities of the specialized agencies.

Article 59

The Organization shall, where appropriate, initiate negotiationsamong the states concerned for the creation of any new specializedagencies required for the accomplishment of the purposes set forth inArticle 55.


Article 60

Responsibility for the discharge of the functions of the Organizationset forth in this Chapter shall be vested in the General Assembly and,under the authority of the General Assembly, in the Economic andSocial Council, which shall have for this purpose the powers set forth inChapter X.

CHAPTER X

THE ECONOMIC AND SOCIAL COUNCIL

Composition

Article 61C

1. The Economic and Social Council shall consist of fifty-fpurMembers of the United Nations elected by the General Assembly.

2. Subject to the provisions of paragraph 3, eighteen members ofthe Economic and Social Council shall be elected each year for a term ofthree years. A retiring member shall be eligible for immediate re-elec-tion.

3. At the first election after the increase in the membership of theEconomic and Social Council from twenty-seven to fifty-four members,in addition to the members elected in place of the nine members whoseterm of office expires at the end of that year, twenty-seven additionalmembers shall be elected. Of these twenty-seven additional members,the term of office of nine members so elected shall expire at the end ofone year, and of nine other members at the end of two years, in accor-dance with arrangements made by the General Assembly.

4. Each member of the Economic and Social Council shall have onerepresentative.


Article 62

1. The Economic and Social Council may make or initiate studiesand reports with respect to international economic, social, cultural, edu-cational, health, and related matters and may make recommendationswith respect to any such matters to the General Assembly, to theMembers of the United Nations, and to the specialized agencies con-cerned.

cAmended text of Article 61 that came into force September 24,1973.


2. It may make recommendations for the purpose of promotingrespect for, and observance of, human rights and fundamental freedomsfor all.

3. It may prepare draft conventions for submission to the GeneralAssembly, with respect to matters falling within its competence.

4. It may call, in accordance with the rules prescribed by theUnited Nations, international conferences on matters falling within itscompetence.

Article 63

1. The Economic and Social Council may enter into agreementswith any of the agencies referred to in Article 57, defining the terms onwhich the agency concerned shall be brought into relationship with theUnited Nations. Such agreements shall be subject to approval by theGeneral Assembly.

2. It may coordinate the activities of the specialized agenciesthrough consultation with and recommendations to such agencies andthrough recommendations to the General Assembly and to the Membersof the United Nations.

Article 64

1. The Economic and Social Council may take appropriate steps toobtain regular reports from the specialized agencies. It may makearrangements with the Members of the United Nations and with thespecialized agencies to obtain reports on the steps taken to give effect toits own recommendations and to recommendations on matters fallingwithin its competence made by the General Assembly.

2. It may communicate its observations on these reports to theGeneral Assembly.

Article 65

The Economic and Social Council may furnish information to theSecurity Council and shall assist the Security Council upon its request.

Article 66

1. The Economic and Social Council shall perform such functionsas fall within its competence in connection with the carrying out of therecommendations of the General Assembly.

2. It may, with the approval of the General Assembly, perform ser-vices at the request of Members of the United Nations and at the requestof specialized agencies.

3. It shall perform such other functions as are specified elsewherein the present Charter or as may be assigned to it by the GeneralAssembly.


Voting

Article 67

1. Each member of the Economic and Social Council shall have, onevote.

2. Decisions of the Economic and Social Council shall be made by amajority of the members present and voting.

Procedure

Article 68

The Economic and Social Council shall set up commissions in eco-nomic and social fields and for the promotion of human rights, and suchother commissions as may be required for the performance of its func-tions.

Article 69

The Economic and Social Council shall invite any Member of theUnited Nations to participate, without vote, in its deliberations on anymatter of particular concern to that Member.

Article 70

The Economic and Social Council may make arrangements for repre-sentatives of the specialized agencies to participate, without vote, in itsdeliberations and in those of the commissions established by it, and forits representatives to participate in the deliberations of the specializedagencies.

Article 71

The Economic and Social Council may make suitable arrangementsfor consultation with non-governmental organizations which are con-cerned with matters within its competence. Such arrangements may bemade with international organizations and, where appropriate, withnational organizations after consultation with the Member of the UnitedNations concerned.

Article 72

1. The Economic and Social Council shall adopt its own rules ofprocedure, including the method of selecting its President.

2. The Economic and Social Council shall meet as required inaccordance with its rules, which shall include provision for the conven-ing of meetings on the request of a majority of its members.


CHAPTER XI

DECLARATION REGARDING NON-SELF-GOVERNINGTERRITORIES

1!II

Article 73

Members of the United Nations which have or assume responsibili-ties for the administration of territories whose peoples have not yetattained a full measure of self-government recognize the principle thatthe interests of the inhabitants of these territories are paramount, andaccept as a sacred trust the obligation to promote to the utmost, withinthe system of international peace and security established by the presentCharter, the well-being of the inhabitants of these territories, and, to thisend:

(a) to ensure, with due respect for the culture of the peoplesconcerned, their political, economic, social, and educationaladvancement, their just treatment, and their protection againstabuses;(b) to develop self-government, to take due account of thepolitical aspirations of the peoples, and to assist them in the pro-gressive development of their free political institutions, accord-ing to the particular circumstances of each territory and its peo-ples and their varying stages of advancement;(c) to further international peace and security;(d) to promote constructive measures of development, toencourage research, and to cooperate with one another and,when and where appropriate, with specialized internationalbodies with a view to the practical achievement of the social,economic, and scientific purposes set forth in this Article; and(e) to transmit regularly to the Secretary-General for informa-tion purposes, subject to such limitation as security and constitu-tional considerations may require, statistical and other informa-tion of a technical nature relating to economic, social, and educa-tional conditions in the territories for which they are respectivelyresponsible other than those territories to which Chapters Xn andXm apply.

Article 74

Members of the United Nations also agree that their policy inrespect of the territories to which this Chapter applies, no less than inrespect of their metropolitan areas, must be based on the general princi-ple of good-neighborliness, due account being taken of the interests and


well-being of the rest of the world, in social, economic, and commercialmatters.

CHAPTER XII

INTERNATIONAL TRUSTEESHIP SYSTEM

Article 75

The United Nations shall establish under its authority an interna-tional trusteeship system for the administration and supervision of suchterritories as may be placed thereunder by subsequent individual agree-ments. These territories are hereinafter referred to as trust territories.

Article 76

The basic objectives of the trusteeship system, in accordance withthe Purposes of the United Nations laid down in Article 1 of the presentCharter, shall be:

(a) to further international peace and security;(b) to promote the political, economic, social, and educationaladvancement of the inhabitants of the trust territories, and theirprogressive development towards self-government or indepen-dence as may be appropriate to the particular circumstances ofeach territory and its peoples and the freely expressed wishes ofthe peoples concerned, and as may be provided by the terms ofeach trusteeship agreement;(c) to encourage respect for human rights and for fundamentalfreedoms for all without distinction as to race, sex, language, orreligion, and to encourage recognition of the interdependence ofthe peoples of the world; and(d) to ensure equal treatment in social, economic, and commer-cial matters for all Members of the United Nations arid theirnationals, and also equal treatment for the latter in the adminis-tration of justice, without prejudice to the attainment of the fore-going objectives.

Article 77

1. The trusteeship system shall apply to such territories in the fol-lowing categories as may be placed thereunder by means of trusteeshipagreements:

(a) territories now held under mandate;(b) territories which may be detached from enemy states as a

iffff I'1'?".


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I

result of the Second World War; and(c) territories voluntarily placed under the system by statesresponsible for their administration.

2. It will be a matter for subsequent agreement as to which territo-ries in the foregoing categories will be brought under the trusteeshipsystem and upon what terms.

Article 78

The trusteeship system shall not apply to territories which havebecome Members of trie United Nations, relationship among which shallbe based on respect for the principle of sovereign equality.

Article 79

The terms of trusteeship for each territory to be placed under thetrusteeship system, including any alteration or amendment, shall beagreed upon by the states directly concerned, including the mandatorypower in the case of territories held under mandate by a Member of theUnited Nations, and shall be approved as provided for in Articles 83and 85.

Article 80

1. Except as may be agreed upon in individual trusteeship agree-ments, made under Articles 77, 79, and 81, placing each territory underthe trusteeship system, and until such agreements have been concluded,nothing in this Chapter shall be construed in or of itself to alter in anymanner the rights whatsoever of any states or any peoples or the termsof existing international instruments to which Members of the UnitedNations may respectively be parties.

2. Paragraph \ of this Article shall not be interpreted as givinggrounds for delay or postponement of the negotiation and conclusion ofagreements for placing mandated and other territories under the trustee-ship system as provided for in Article 77.

Article 81

The trusteeship agreement shall in each case include the termsunder which the trust territory will be administered and designate theauthority which will exercise the administration of the trust territory.Such authority, hereinafter called the administering authority, may beone or more states or the Organization itself.

There may be designated, in any trusteeship agreement, a strategicarea or areas which may include part or all of the trust territory to which


the agreement applies, without prejudice to any special agreement oragreements made under Article 43.

Article 83

1. All functions of the United Nations relating to strategic areas/including the approval of the terms of the trusteeship agreements and oftheir alterations or amendment, shall be exercised by the SecurityCouncil.

2. The basic objectives set forth in Article 76 shall be applicable tothe people of each strategic area.

3. The Security Council shall, subject to the provisions of thetrusteeship agreements and without prejudice to security considera-tions, avail itself of the assistance of the Trusteeship Council to performthose functions of the United Nations under the trusteeship systemrelating to political, economic, social, and educational matters in thestrategic areas.

Article 84

It shall be the duty of the administering authority to ensure that thetrust territory shall play its part in the maintenance of internationalpeace and security. To this end the administering authority may makeuse of volunteer forces, facilities, and assistance from the trust territoryin carrying out the obligations towards the Security Council undertakenin this regard by the administering authority, as well as for local defenseand the maintenance of law and order within the trust territory.

Article 85

1. The functions of the United Nations with regard to trusteeshipagreements for all areas not designated as strategic, including theapproval of the terms of the trusteeship agreements and of their alter-ation or amendment, shall be exercised by the General Assembly.

2. The Trusteeship Council, operating under the authority of theGeneral Assembly, shall assist the General Assembly in carrying outthese functions.


CHAPTER XIII

THE TRUSTEESHIP COUNCIL

Composition

Article 86

1. The Trusteeship Council shall consist of the following Membersof the United Nations:

(a) those Members administering trust territories;(b) such of those Members mentioned by name in Article 23 asare not administering trust territories; and(c) as many other Members elected for three-year terms by theGeneral Assembly as may be necessary to ensure that the totalnumber of members of the Trusteeship Council is equally divid-ed between those Members of the United Nations which admin-ister trust territories and those which do not.

2. Each member of the Trusteeship Council shall designate onespecially qualified person to represent it therein.


Article 87

The General Assembly and, under its authority, the TrusteeshipCouncil, in carrying out their functions, may:

(a) consider reports submitted by the administering authority;(b) accept petitions and examine them in consultation with theadministering authority;(c) provide for periodic visits to the respective trust territoriesat times agreed upon with the administering authority; and(d) take these and other actions in conformity with the terms ofthe trusteeship agreements.

Article 88

The Trusteeship Council shall formulate a questionnaire on thepolitical, economic, social, and educational advancement of the inhabi-tants of each trust territory, and the administering authority for eachtrust territory within the competence of the General Assembly shallmake an annual report to the General Assembly upon the basis of suchquestionnaire.


Voting

Article 89

1. Each member of the Trusteeship Council shall have one vote.2. Decisions of the Trusteeship Council shall be made by a majori-

ty of the members present and voting.

Procedure

Article 90

1. The Trusteeship Council shall adopt its own rules of procedure,including the method of selecting its President.

2. The Trusteeship Council shall meet as required in accordancewith its rules, which shall include provision for the convening of meet-ings on the request of a majority of its members.

Article 91

The Trusteeship Council shall, when appropriate, avail itself of theassistance of the Economic and Social Council and of the specializedagencies in regard to matters with which they are respectively con-cerned.

CHAPTER XIV

THE INTERNATIONAL COURT OF JUSTICE

Article 92

The International Court of Justice shall be the principal judicialorgan of the United Nations. It shall function in accordance with theannexed Statute, which is based upon the Statute of the PermanentCourt of International Justice and forms an integral part of the presentCharter.

Article 93

1. All Members of the United Nations are ipso facto parties to theStatute of the International Court of Justice.

2. A state which is not a Member of the United Nations maybecome a party to the Statute of the International Court of Justice onconditions to be determined in each case by the General Assembly uponthe recommendation of the Security Council.

if*?'


Article 94

1. Each Member of the United Nations undertakes to comply withthe decision of the International Court of Justice in any case to which itis a party.

2. If any party to a case fails to perform the obligations incumbentupon it under a judgment rendered by the Court, the other party mayhave recourse to the Security Council, which may, if it deems necessary,make recommendations or decide upon measures to be taken to giveeffect to the judgment.

Article 95

Nothing in the present Charter shall prevent Members of the UnitedNations from entrusting the solution of their differences to other tri-bunals by virtue of agreements already in existence or which may beconcluded in the future.

Article 96

1. The General Assembly or the Security Council may request theInternational Court of Justice to give an advisory opinion on any legalquestion.

2. Other organs of the United Nations and specialized agencies,which may at any time be so authorized by the General Assembly, mayalso request advisory opinions of the Court on legal questions arisingwithin the scope of their activities.

CHAPTER XV

THE SECRETARIAT

Article 97

The Secretariat shall comprise a Secretary-General and such staff asthe Organization may require. The Secretary-General shall be appointedby the General Assembly upon the recommendation of the SecurityCouncil. He shall be the chief administrative officer of the Organization.

Article 98

The Secretary-General shall act in that capacity in all meetings of theGeneral Assembly, of the Security Council, of the Economic and SocialCouncil, and of the Trusteeship Council, and shall perform such otherfunctions as are entrusted to him by these organs. The Secretary-Generalshall make an annual report to the General Assembly on the work of theOrganization.


Article 99

The Secretary-General may bring to the attention of the SecurityCouncil any matter which in his opinion may threaten the maintenanceof international peace and security.

Article 100

1. In the performance of their duties the Secretary-General and thestaff shall not seek or receive instructions from any government or fromany other authority external to the Organization. They shall refrain fromany action which might reflect on their position as international officialsresponsible only to the Organization.

2. Each Member of the United Nations undertakes to respect theexclusively international character of the responsibilities of theSecretary-General and the staff and not to seek to influence them in thedischarge of their responsibilities.

Article 101

1. The staff shall be appointed by the Secretary-General under reg-ulations established by the General Assembly.

2. Appropriate staffs shall be permanently assigned to theEconomic and Social Council, the Trusteeship Council, and, as required,to other organs of the United Nations. These staffs shall form a part ofthe Secretariat.

3. The paramount consideration in the employment of the staffand in the determination of the conditions of service shall be the necessi-ty of securing the highest standards of efficiency, competence, andintegrity. Due regard shall be paid to the importance of recruiting thestaff on as wide a geographical basis as possible.

CHAPTER XVI

MISCELLANEOUS PROVISIONS

Article 102

1. Every treaty and every international agreement entered into byany Member of the United Nations after the present Charter comes intoforce shall as soon as possible be registered with the Secretariat and pub-lished by it.

2. No party to any such treaty or international agreement whichhas not been registered in accordance with the provisions of paragraph 1of this Article may invoke that treaty or agreement before any organ ofthe United Nations.


Article 103

In the event of a conflict between the obligations of the Members ofthe United Nations under the present Charter and their obligationsunder any other international agreement, their obligations under thepresent Charter shall prevail.

Article 104

The Organization shall enjoy in the territory of each of its Memberssuch legal capacity as may be necessary for the exercise of its functionsand the fulfillment of its purposes.

Article 105

1. The Organization shall enjoy in the territory of each of itsMembers such privileges and immunities as are necessary for the fulfill-ment of its purposes.

2. Representatives of the Members of the United Nations and offi-cials of the Organization shall similarly enjoy such privileges and immu-nities as are necessary for the independent exercise of their functions inconnection with the Organization.

3. The General Assembly may make recommendations with a viewto determining the details of the application of paragraphs 1 and 2 ofthis Article or may propose conventions to the Members of the UnitedNations for this purpose.

CHAPTER XVII

TRANSITIONAL SECURITY ARRANGEMENTS

Article 106

Pending the coming into force of such special agreements referred toin Article 43 as in the opinion of the Security Council enable it to beginthe exercise of its responsibilities under Article 42, the parties to theFour-Nation Declaration, signed at Moscow, October 30, 1943, andFrance, shall, in accordance with the provisions of paragraph 5 of thatDeclaration, consult with one another and as occasion requires withother Members of the United Nations with a view to such joint action onbehalf of the Organization as may be necessary for the purpose of main-taining international peace and security.

Nothing in the present Charter shall invalidate or preclude action, inrelation to any state which during the Second World War has been an


enemy of any signatory to the present Charter, taken or authorized as aresult of that war by the Governments having responsibility for suchaction.

CHAPTER XVIII

AMENDMENTS

Article 108

Amendments to the present Charter shall come into force for allMembers of the United Nations when they have been adopted by a voteof two thirds of the members of the General Assembly and ratified inaccordance with their respective constitutional processes by two thirdsof the Members of the United Nations, including all the permanentmembers of the Security Council.

Article 109*

1. A General Conference of the Members of the United Nations forthe purpose of reviewing the present Charter may be held at a date andplace to be fixed by a two-thirds vote of the members of the GeneralAssembly and by a vote of any nine members of the Security Council.Each Member of the United Nations shall have one vote in the confer-ence.

2. Any alteration of the present Charter recommended by a two-thirds vote of the conference shall take effect when ratified in accordancewith their respective constitutional processes by two thirds of theMembers of the United Nations including all the permanent members ofthe Security Council.

3. If such a conference has not been held before the tenth annualsession of the General Assembly following the coming into force of thepresent Charter, the proposal to call such a conference shall be placed onthe agenda of that session of the General Assembly, and the conferenceshall be held if so decided by a majority vote of the members of theGeneral Assembly and by a vote of any seven members of the SecurityCouncil.

dAmended text of Article 109 that came into force June 12,1968.


CHAPTER XIX

RATIFICATION AND SIGNATURE

Article 110

1. The present Charter shall be ratified by the signatory states inaccordance with their respective constitutional processes.

2. The ratifications shall be deposited with the Government of theUnited States of America, which shall notify all the signatory states ofeach deposit as well as the Secretary-General of the Organization whenhe has been appointed.

3. The present Charter shall come into force upon the deposit ofratifications by the Republic of China, France, the Union of SovietSocialist Republics, the United Kingdom of Great Britain and NorthernIreland, and the United States of America, and by a majority of the othersignatory states. A protocol of the ratifications deposited shall thereuponbe drawn up by the Government of the United States of America whichshall communicate copies thereof to all the signatory states.

4. The states signatory to the present Charter which ratify it after ithas come into force will become original Members of the United Nationson the date of the deposit of their respective ratifications.

Article 111

The present Charter, of which the Chinese, French, Russian, English,and Spanish texts are equally authentic, shall remain deposited in thearchives of the Government of the United States of America. Duly certi-fied copies thereof shall be transmitted by that Government to theGovernments of the other signatory states.

APPENDIX B

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

June 26,1945, 59 Stat. 1031

Article 1

THE INTERNATIONAL COURT OF JUSTICE established by theCharter of the United Nations as the principal judicial organ of theUnited Nations shall be constituted and shall function in accordancewith the provisions of the present Statute.

CHAPTER!

ORGANIZATION OF THE COURT

Article 2

The Court shall be composed of a body of independent judges, elect-ed regardless of their nationality from among persons of high moralcharacter, who possess the qualifications required in their respectivecountries for appointment to the highest judicial offices, or are juriscon-sults of recognized competence in international law.

Article 3

1. The Court shall consist of fifteen members, no two of whommay be nationals of the same state.

2. A person who for the purposes of membership in the Courtcould be regarded as a national of more than one state shall be deemedto be a national of the one in which he ordinarily exercises civil andpolitical rights.

217

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Article 4

1. The members of the Court shall be elected by the GeneralAssembly and by the Security Council from a list of persons nominatedby the national groups in the Permanent Court of Arbitration, in accor-dance with the following provisions.

2. In the case of Members of the United Nations not represented inthe Permanent Court of Arbitration, candidates shall be nominated bynational groups appointed for this purpose by their governments underthe same conditions as those prescribed for members of the PermanentCourt of Arbitration by Article 44 of the Convention of The Hague of1907 for the pacific settlement of international disputes.

3. The conditions under which a state which is a party to the pre-sent Statute but is not a Member of the United Nations may participatein electing the members of the Court shall, in the absence of a specialagreement, be laid down by the General Assembly upon recommenda-tion of the Security Council.

Article 5

1. At least three months before the date of the election, theSecretary-General of the United Nations shall address a written requestto the members of the Permanent Court of Arbitration belonging to thestates which are parties to the present Statute, and to the members of thenational groups appointed under Article 4, paragraph 2, inviting themto undertake, within a given time, by national groups, the nomination ofpersons in a position to accept the duties of a member of the Court.

2. No group may nominate more than four persons, not more thantwo of whom shall be of their own nationality. In no case may the num-ber of candidates nominated by a group be more than double the num-ber of seats to be filled.

Article 6

Before making these nominations, each national group is recom-mended to consult its highest court of justice, its legal faculties andschools of law, and its national academies and national sections of inter-national academies devoted to the study of law.

Article 7

1. The Secretary-General shall prepare a list in alphabetical orderof all the persons thus nominated. Save as provided in Article 12, para-graph 2, these shall be the only persons eligible.

2. The Secretary-General shall submit this list to the GeneralAssembly and to the Security Council.

Appendix B: ICJ Statute 219

Articles

The General Assembly and the Security Council shall proceed inde-pendently of one another to elect the members of the Court.

Article 9

At every election, the electors shall bear in mind not only that thepersons to be elected should individually possess the qualificationsrequired, but also that in the body as a whole the representation of themain forms of civilization and of the principal legal systems of the worldshould be assured.

Article 10

1. Those candidates who obtain an absolute majority of votes inthe General Assembly and in the Security Council shall be considered aselected.

2. Any vote of the Security Council, whether for the election of.judges or for the appointment of members of the conference envisagedin Article 12, shall be taken without any distinction between permanentand non-permanent members of the Security Council.

3. In the event of more than one national of the same state obtain-ing an absolute majority of the votes both of the General Assembly andof the Security Council, the eldest of these only shall be considered aselected.

Article 11

If, after the first meeting held for the purpose of the election, one ormore seats remain to be filled, a second and, if necessary, a third meet-ing shall take place.

Article 12

1. If, after the third meeting, one or more seats still remainunfilled, a joint conference consisting of six members, three appointedby the General Assembly and three by the Security Council, may beformed at any time at the request of either the General Assembly or theSecurity Council, for the purpose of choosing by the vote of an absolutemajority one name for each seat still vacant, to submit to the GeneralAssembly and the Security Council for their respective acceptance.

2. If the joint conference is unanimously agreed upon any personwho fulfils the required conditions, he may be included in its list, eventhough he was not included in the list of nominations referred to inArticle 7.

3. If the joint conference is satisfied that it will not be successful inprocuring an election, those members of the Court who have already


been elected shall, within a period to be fixed by the Security Council,proceed to fill the vacant seats by selection from among those candidateswho have obtained votes either in the General Assembly or in theSecurity Council.

4. In the event of an equality of votes among the judges, the eldestjudge shall have a casting vote.

Article 13

1. The members of the Court shall be elected for nine years andmay be re-elected; provided, however, that of the judges elected at thefirst election, the terms of five judges shall expire at the end of threeyears and, the terms of five more judges shall expire at the end of sixyears.

2. The judges whose terms are to expire at the end of the above-mentioned initial periods of three and six years shall be chosen by lot tobe drawn by the Secretary-General immediately after the first electionhas been completed.

3. The members of the Court shall continue to discharge theirduties until their places have been filled. Though replaced, they shallfinish any cases which they may have begun.

4. In the case of the resignation of a member of the Court, the res-ignation shall be addressed to the President of the Court for transmis-sion to the Secretary-General. This last notification makes the placevacant.

Article U

Vacancies shall be filled by the same method as that laid down forthe first election subject to the following provision: the Secretary-General shall, within one month of the occurrence of the vacancy, pro-ceed to issue the invitations provided for in Article 5, and the date of theelection shall be fixed by the Security Council.

A member of the Court elected to replace a member whose term ofofficejhas not expired shall hold office for the remainder of his predeces-sor's term.

1. No member of the Court may exercise any political or adminis-trative function, or engage in any other occupation of a professionalnature.

2. Any doubt on this point shall be settled by the decision of theCourt.


Article 17

1. No member of the Court may act as agent, counsel, or advocatein any case.

2. No member may participate in the decision of any case in whichhe has previously taken part as agent, counsel, or advocate for one of theparties, or as a member of a national or international court, or of a com-mission of enquiry, or in any other capacity.

3. Any doubt on this point shall be settled by the decision of theCourt.

Article 18

1. No member of the Court can be dismissed unless, in the unani-mous opinion of the other members, he has ceased to fulfil the requiredconditions.

2. Formal notification thereof shall be made to the Secretary-General by the Registrar.

3. This notification makes the place vacant.

Article 19

The members of the Court, when engaged on the business of theCourt, shall enjoy diplomatic privileges and immunities.

Article 20

Every member of the Court shall, before taking up his duties, makea solemn declaration in open court that he will exercise his powersimpartially and conscientiously.

Article 21

1. The Court shall elect its President and Vice-President for threeyears; they may be re-elected.

2. The Court shall appoint its Registrar and may provide for theappointment of such other officers as may be necessary.

Article 22

1. The seat of the Court shall be established at The Hague. This,however, shall not prevent the Court from sitting and exercising itsfunctions elsewhere whenever the Court considers it desirable.

2. The President and the Registrar shall reside at the seat of theCourt.

Article 23

1. The Court shall remain permanently in session, except duringthe judicial vacations, the dates and duration of which shall be fixed bythe Court.


2. Members of the Court are entitled to periodic leave, the datesand duration of which shall be fixed by the Court, having in mind thedistance between The Hague and the home of each judge.

3. Members of the Court shall be bound, unless they are on leaveor prevented from attending by illness or other serious reasons dulyexplained to the President, to hold themselves permanently at the dis-posal of the Court.

Article 24

1. If, for some special reason, a member of the Court considers thathe should not take part in the decision of a particular case, he shall soinform the President.

2. If the President considers that for some special reason one of themembers of the Court should not sit in a particular case, he shall givehim notice accordingly.

3. If in any such case the member of the Court and the Presidentdisagree, the matter shall be settled by the decision of the Court.

Article 25

1. . The full Court shall sit except when it is expressly provided oth-erwise in the present Statute.

2. Subject to the condition that the number of judges available toconstitute the Court is not thereby reduced below eleven, the Rules ofthe Court may provide for allowing one or more judges, according tocircumstances and in rotation, to be dispensed from sitting.

3. A quorum of nine judges shall suffice to constitute the Court.

Article 26

1. The Court may from time to time form one or more chambers,composed of three or more judges as the Court may determine, for deal-ing with particular categories of cases; for example, labor cases and casesrelating to transit and communications.

2. The Court may at any time form a chamber for dealing with aparticular case. The number of judges to constitute such a chamber shallbe determined by the Court with the approval of the parties.

3. Cases shall be heard and determined by the chambers providedfor in this Article if the parties so request.

A judgment given by any of the chambers provided for in Articles26 and 29 shall be considered as rendered by the Court.


Article 28

The chambers provided for in Articles 26 and 29 may, with the con-sent of the parties, sit and exercise their functions elsewhere than at TheHague.

Article 29

With a view to the speedy dispatch of business, the Court shall formannually a chamber composed of five judges which, at the request of theparties, may hear and determine cases by summary procedure. In addi-tion, two judges shall be selected for the purpose of replacing judgeswho find it impossible to sit.

Article 30

1. The Court shall frame rules for carrying out its functions. Inparticular, it shall lay down rules of procedure.

2. The Rules of the Court may provide for assessors to sit with theCourt or with any of its chambers, without the right to vote.

Article 31

1. Judges of the nationality of each of the parties shall retain theirright to sit in the case before the Court.

2. If the Court includes upon the Bench a judge of the nationalityof one of the parties, any other party may choose a person to sit as judge.Such person shall be chosen preferably from among those persons whohave been nominated as candidates as provided in Articles 4 and 5.

3. If the Court includes upon the Bench no judge of the nationalityof the parties, each of those parties may proceed to choose a judge asprovided in paragraph 2 of this Article.

4. The provisions of this Article shall apply to the case of Articles26 and 29. In such cases, the President shall request one or, if necessary,two of the members of the Court forming the chamber to give place tothe members of the Court of the nationality of the parties concerned,and, failing such, or if they are unable to be present, to the judges spe-cially chosen by the parties.

5. Should there be several parties in the same interest, they shall,for the purpose of the preceding provisions, be reckoned as one partyonly. Any doubt upon this point shall be settled by the decision of theCourt.

6. Judges chosen as laid down in paragraphs 2, 3, and 4 of thisArticle shall fulfil the conditions required by Articles 2,17 (paragraph 2),20, and 24 of the present Statute. They shall take part in the decision onterms of complete equality with their colleagues.


I

Article 32

1. Each member of the Court shall receive an annual salary.2. The President shall receive a special annual allowance.3. The Vice-President shall receive a special allowance for every

day on which he acts as President.4. The judges chosen under Article 31, other than members of the

Court, shall receive compensation for each day on which they exercisetheir functions.

5. These salaries, allowances, and compensation shall be fixed bythe General Assembly. They may not be decreased during the term ofoffice.

6. The salary of the Registrar shall be fixed by the GeneralAssembly on the proposal of the Court.

7. Regulations made by the General Assembly shall fix the condi-tions under which retirement pensions may be given to members of theCourt and to the Registrar, and the conditions under which members ofthe Court and the Registrar shall have their travelling expenses refund-ed.

8. The above salaries, allowances, and compensation shall be freeof all taxation.

Article 33

The expenses of the Court shall be borne by the United Nations insuch a manner as shall be decided by the General Assembly.

CHAPTER II

COMPETENCE OF THE COURT

Article 34

1. Only states may be parties in cases before the Court.2. The Court, subject to and in conformity with its Rules, may

request of public international organizations information relevant tocases before it, and shall receive such information presented by suchorganizations on their own initiative.

3. Whenever the construction of the constituent instrument of apublic international organization or of an international conventionadopted thereunder is in question in a case before the Court, theRegistrar shall so notify the public international organization concernedand shall communicate to it copies of all the written proceedings.


Article 35

1. The Court shall be open to the states parties to the presentStatute.

2. The conditions under which the Court shall be open to otherstates shall, subject to the special provisions contained in treaties inforce, be laid down by the Security Council, but in no case shall suchconditions place the parties in a position of inequality before the Court.

3. When a state which is not a Member of the United Nations is aparty to a case, the Court shall fix the amount which that party is to con-tribute towards the expenses of the Court. This provision shall notapply if such state is bearing a share of the expenses of the Court.

Article 36

1. The jurisdiction of the Court comprises all cases which the par-ties refer to it and all matters specially provided for in the Charter of theUnited Nations or in treaties and conventions in force.

2. The states parties to the present Statute may at any time declarethat they recognize as compulsory ipso facto and without special agree-ment, in relation to any other state accepting the same obligation, thejurisdiction of the Court in all legal disputes concerning:

(a) the interpretation of a treaty;(b) any question of international law;(c) the existence of any fact which, if established, would con-stitute a breach of an international obligation;(d) the nature or extent of the reparation to be made for thebreach of an international obligation.

3. The declarations referred to above may be made unconditional-ly or on condition of reciprocity on the part of several or certain states,or for a certain time.

4. Such declarations shall be deposited with the Secretary-Generalof the United Nations, who shall transmit copies thereof to the parties tothe Statute and to the Registrar of the Court.

5. Declarations made under Article 36 of the Statute of thePermanent Court of International Justice and which are still in forceshall be deemed, as between the parties to the present Statute, to beacceptances of the compulsory jurisdiction of the International Court ofJustice for the period which they still have to run and in accordance withtheir terms.

6. In the event of a dispute as to whether the Court has jurisdic-tion, the matter shall be settled by the decision of the Court.


Article 37

Whenever a treaty or convention in force provides for reference of amatter to a tribunal to have been instituted by the League of Nations, orto the Permanent Court of International Justice, the matter shall, asbetween the parties to the present Statute, be referred to theInternational Court of Justice.

Article 38

1. The Court, whose function is to decide in accordance with inter-national law such disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular,establishing rules expressly recognized by the contesting states;(b) international custom, as evidence of a general practiceaccepted as law;(c) the general principles of law recognized by civilizednations;(d) subject to the provisions of Article 59, judicial decisionsand the teachings of the most highly qualified publicists of thevarious nations, as subsidiary means for the determination ofrules of law.

2. This provision shall not prejudice the power of the Court todecide a case ex aequo et bono, if the parties agree thereto.

CHAPTER III

PROCEDURE

Article 39

1. The official languages of the Court shall be French and English.If the parties agree that the case shall be conducted in French, the judg-ment shall be delivered in French. If the parties agree that the case shallbe conducted in English, the judgment shall be delivered in English.

2. In the absence of an agreement as to which language shall beemployed, each party may, in the pleadings, use the language which itprefers; the decision of the Court shall be given in French and English.In this case the Court shall at the same time determine which of the twotexts shall be considered as authoritative.

3. The Court shall, at the request of any party, authorize a lan-guage other than French or English to be used by that party.


Article 40

1. Cases are brought before the Court, as the case may be, either bythe notification of the special agreement or by a written applicationaddressed to the Registrar. In either case the subject of the dispute andthe parties shall be indicated.

2. The Registrar shall forthwith communicate the application to allconcerned.

3. He shall also notify the Members of the United Nations throughthe Secretary-General, and also any other states entitled to appear beforethe Court.

Article 41

1. The Court shall have the power to indicate, if it considers thatcircumstances so require, any provisional measures which ought to betaken to preserve the respective rights of either party.

2. Pending the final decision, notice of the measures suggestedshall forthwith be given to the parties and to the Security Council.

Article 42

1. The parties shall be represented by agents.2. They may have the assistance of counsel or advocates before the

Court.3. The agents, counsel, and advocates of parties before the Court

shall enjoy the privileges and immunities necessary to the independentexercise of their duties.

Article 43

1. The procedure shall consist of two parts: written and oral.2. The written proceedings shall consist of the communication to

the Court and to the parties of memorials, counter-memorials and, ifnecessary, replies; also all papers and documents in support.

3. These communications shall be made through the Registrar, inthe order and within the time fixed by the Court.

4. A certified copy of every document produced by one party shallbe communicated to the other party.

5. The oral proceedings shall consist of the hearing by the Court ofwitnesses, experts, agents, counsel, and advocates.

Article 44

1. For the service of all notices upon persons other than theagents, counsel, and advocates, the Court shall apply direct to the gov-ernment of the state upon whose territory the notice has to be served.

2. The same provision shall apply whenever steps are to be takento procure evidence on the spot.


Article 45

The hearing shall be under the control of the President or, if he isunable to preside, of the Vice-President; if neither is able to preside, thesenior judge present shall preside.

Article 46

The hearing in Court shall be public, unless the Court shall decideotherwise, or unless the parties demand that the public be not admitted.

Article 47

1. Minutes shall be made at each hearing and signed by theRegistrar and the President.

2. These minutes alone shall be authentic.

Article 48

The Court shall make orders for the conduct of the case, shall decidethe form and time in which each party must conclude its arguments, andmake all arrangements connected with the taking of evidence.

Article 49

The Court may, even before the hearing begins, call upon the agentsto produce any document or to supply any explanations. Formal noteshall be taken of any refusal.

Article 50

The Court may, at any time, entrust any individual, body, bureau,commission, or other organization that it may select, with the task ofcarrying out an enquiry or giving an expert opinion.

Article 51

During the hearing any relevant questions are to be put to the wit-nesses and experts under the conditions laid down by the Court in therules of procedure referred to in Article 30.

Article 52

After the Court has received the proofs and evidence within the timespecified for the purpose, it may refuse to accept any further oral orwritten evidence that one party may desire to present unless the otherside consents.

Article 53

1. Whenever one of the parties does not appear before the Court,or fails to defend its case, the other party may call upon the Court todecide in favor of its claim.


2. The Court must, before doing so, satisfy itself, not only that ithas jurisdiction in accordance with Articles 36 and 37, but also that theclaim is well founded in fact and law.

Article 54

1. When, subject to the control of the Court, the agents, counsel,and advocates have completed their presentation of the case, thePresident shall declare the hearing closed.

2. The Court shall withdraw to consider the judgment.3. The deliberations of the Court shall take place in private and

remain secret.

Article 55

1. All questions shall be decided by a majority of the judges pre-sent.

2. In the event of an equality of votes, the President or the judgewho acts in his place shall have a casting vote.

Article 56

1. The judgment shall state the reasons on which it is based.2. It shall contain the names of the judges who have taken part in

the decision.

Article 57

If the judgment does not represent in whole or in part the unani-mous opinion of the judges, any judge shall be entitled to deliver a sepa-rate opinion.

Article 58

The judgment shall be signed by the President and by the Registrar.It shall be read in open court, due notice having been given to theagents.

Article 59

The decision of the Court has no binding force except between theparties and in respect of that particular case.

Article 60

The judgment is final and without appeal. In the event of dispute asto the meaning or scope of the judgment, the Court shall construe itupon the request of any party.


Article 61

1. An application for revision of a judgment may be made onlywhen it is based upon the discovery of some fact of "such a nature as tobe a decisive factor, which fact was, when the judgment was given,unknown to the Court and also the party claiming revision, always pro-vided that such ignorance was not due to negligence.

2. The proceedings for revision shall be opened by a judgment ofthe Court expressly recording the existence of the new fact, recognizingthat it has such a character as to lay the case open to revision, anddeclaring the application admissible on this ground.

3. The Court may require previous compliance with the terms ofthe judgment before it admits proceedings in revision.

4. The application for revision must be made at latest within sixmonths of the discovery of the new fact.

5. No application for revision may be made after the lapse of tenyears from the date of the judgment.

Article 62

1. Should a state consider that it has an interest of a legal naturewhich may be affected by the decision hi the case, it may submit arequest to the Court to be permitted to intervene.

2. It shall be for the Court to decide upon this request.

Article 63

1. Whenever the construction of a convention to which states otherthan those concerned in the case are parties is in question, the Registrarshall notify all such states forthwith.

2. Every state so notified has the right to intervene in the proceed-ings; but if it uses this right, the construction given by the judgment willbe equally binding upon it.

Article 64

Unless otherwise decided by the Court, each party shall bear its owncosts.

CHAPTER IV

ADVISORY OPINIONS

Article 65

1. The Court may give an advisory opinion on any legal questionat the request of whatever body may be authorized by or in accordance


with the Charter of the United Nations to make such a request.2. Questions upon which the advisory opinion of the Court is

asked shall be laid before the Court by means of a written request con-taining an exact statement of the question upon which an opinion isrequired, and accompanied by all documents likely to throw light uponthe question.

Article 66

1. The Registrar shall forthwith give notice of the request for anadvisory opinion to all states entitled to appear before the Court.

2. The Registrar shall also, by means of a special and direct com-munication, notify any state entitled to appear before the Court or inter-national organization considered by the Court or, should it not be sit-ting, by the President, as likely to be able to furnish information on thequestion, that the Court will be prepared to receive, within a time limitto be fixed by the President, written statements, or to hear, at a publicsitting to be held for the purpose, oral statements relating to the ques-tion.

3. Should any such state entitled to appear before the Court havefailed to receive the special communication referred to in paragraph 2 ofthis Article, such state may express a desire to submit a written state-ment or to be heard; and the Court will decide.

4. States and organizations having presented written or oral state-ments or both shall be permitted to comment on the statements made byother states or organizations in the form, to the extent, and within thetime limits which the Court, or, should it not be sitting, the President,shall decide in each particular case. Accordingly, the Registrar shall indue time communicate any such written statements to states and organi-zations having submitted similar statements.

Article 67

The Court shall deliver its advisory opinions in open court, noticehaving been given to the Secretary-General and to the representatives ofMembers of the United Nations, of other states and of internationalorganizations immediately concerned.

Article 68

In the exercise of its advisory functions the Court shall further beguided by the provisions of the present Statute which apply in con-tentious cases to the extent to which it recognizes them to be applicable.

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CHAPTER V

AMENDMENT

Article 69

Amendments to the present statute shall be effected by the sameprocedure as is provided by the Charter of the United Nations foramendments to that Charter, subject however to any provisions whichthe General Assembly upon recommendation of the Security Councilmay adopt concerning the participation of states which are parties to thepresent Statute but are not Members of the United Nations.

Article 70

The Court shall have power to propose such amendments to the pre-sent Statute as it may deem necessary, through written communicationsto the Secretary-General, for consideration in conformity with the provi-sions of Article 69.

APPENDIX C

SELECTED INTERNATIONAL COURT OF JUSTICE DECISIONS

The United Nations' principal judicial organ, the International Courtof Justice, has jurisdiction in contentious cases involving two or morestates when the states involved have mutually consented to jurisdiction.Article 36 of the Court's Statute provides the authority for jurisdiction insuch cases. Article 65 of the Statute also grants jurisdiction to the Courtto render advisory opinions in accordance with the UN Charter. UnderArticle 96 of the UN Charter, the Security Council, General Assembly, orother UN organs and specialized agencies (when so authorized by theGeneral Assembly) may request the Court to give advisory opinions onlegal questions.

This Appendix lists selected decisions of the International Court ofJustice in contentious and advisory opinion cases, noting the generalsubject matter of the decisions. These decisions, illustrating the range ofimportant issues with which the Court has dealt, have in many instancescontributed to the peaceful settlement of disputes. They also have con-tributed significantly to the development of international law, both withrespect to the particular subject matter at issue and with respect tobroader issues, such as methods of treaty interpretation. Although adecision in a contentious case technically "has no binding force exceptbetween the parties and in respect of that particular case," according toArticle 59 of the Court's Statute, the decisions are carefully reasoned.The decisions have been consulted to help ascertain the content of inter-national law, both by the ICJ in accordance with Article 38(l)(d) of theCourt's Statute and, in practice, by other international tribunals anddecision makers.

Omitted from the list in this Appendix are several important deci-sions concerning the Court's own jurisdiction, the admissibility of cer-tain types of claims, and the rights of states to intervene in pending pro-ceedings. Those decisions have defined in considerable detail the scopeof the issues that the Court is authorized to hear under its Statute and

233


the UN Charter. Also omitted are several advisory opinions concerninghighly technical issues. Finally, the list omits some cases in which thesubject area duplicates that of another listed case. For example, theCourt has decided and helped to resolve peacefully several maritimeboundary disputes, but this list includes only a few representative casesconcerning such disputes.

I. Contentious CasesCorfu Channel Case (United Kingdom-Albania) (Merits) (1949)

Subject: Responsibility of a coastal state for damage caused bymines in its straits; duty to notify and warn of hazards; right ofinnocent passage of warships through straits

Fisheries Case (United Kingdom-Norway) (1951)Subject: Delimitation of fisheries zone by drawing straight base-lines along a deeply indented coastline

Case Concerning Rights of Nationals of the United States of America inMorocco (France-United States) (1952)

Subject: Differential treatment of foreign nationals in the controlof imports; interpretation of treaty concerning the scope of con-sular jurisdiction and fiscal immunity from taxes

Ambatielos Case (Greece-United Kingdom) (1953)Subject: Interpretation of treaty obligation to refer a dispute toarbitration

Minquiers and Ecrehos Case (United Kingdom-France) (1953)Subject: Sovereignty over islands

Nottebohm Case (Liechtenstein-Guatemala) (Second Phase) (1955)Subject: Obligation of one state to recognize the nationality of acitizen of another state when the latter state makes a claim onbehalf of its national; nature of a "genuine link" between a stateand its nationals

Case Concerning the Application of the Convention of 1902 Governingthe Guardianship of Infants (Netherlands-Sweden) (1958)

Subject: Obligations under the Hague Convention of 1902,which was designed to end competing claims of several laws togovern a single legal relationship concerning the guardianshipof infants

Case Concerning Right of Passage Over Indian Territory (Portugal-India) (Merits) (1959)

Subject: Rights of transit passage for one state in respect ofarmed forces, armed police, arms and ammunition, private per-sons, civil officials, and goods to an enclave of that state, across

Appendix C: Selected ICJ Decisions 235

the territory of another state; establishment of local customarypractice between two states

Case Concerning the Arbitral Award Made by the King of Spain on 23December 1906 (Honduras-Nicaragua) (1960)

Subject: Validity and binding effect of an arbitral award regard-ing an international boundary

Case Concerning the Temple of Preah Vihear (Cambodia-Thailand)(Merits) (1962)

Subject: Sovereignty over disputed territory; obligation torestore art objects removed during period of foreign occupation

North Sea Continental Shelf Cases (Federal Republic of Germany-Netherlands; Federal Republic of Germany-Denmark) (1969)

Subject: Standards for delimiting the continental shelf bound-aries between adjacent states

Case Concerning the Barcelona Traction, Light and Power Company,Limited (Belgium-Spain) (1970)

Subject: Standing of state of shareholders of a corporation,rather than state of place of incorporation, to bring a claim withrespect to measures taken against the company in a third state

Nuclear Tests Cases (Australia-France; New Zealand-France) (InterimProtection) (1973)

Subject: Provisional measures of protection, with respect to theneed for one state to avoid atmospheric nuclear testing causingradioactive fallout on the territory of other states

Nuclear Tests Cases (Australia-France; New Zealand-France) (1974)Subject: Effect of unilateral public statements, concerning thecessation of challenged conduct, on the continuation of a casebefore the Court

Fisheries Jurisdiction Cases (United Kingdom v. Iceland; FederalRepublic of Germany v. Iceland) (Merits) (1974)

Subject: Relative rights and obligations of coastal state and dis-tant water fishing states with respect to unilateral assertion ofcoastal state fishing zones

Case Concerning United States Diplomatic and Consular Staff in Tehran(United States-Iran) (1980)

Subject: State responsibility with respect to the rights of diplo-matic and consular staff, including the obligation of reparationfor interference with the rights of such staff


Case Concerning Delimitation of the Maritime Boundary in the Gulf ofMaine Area (Canada-United States) (1984)

Subject: Delimitation of boundary dividing continental shelfand exclusive fisheries zones of adjacent states; decision byChamber of the Court

Case Concerning the Continental Shelf (Libya-Malta) (1985)Subject: Delimitation of continental shelf between oppositestates

Case Concerning the Military and Paramilitary Activities In and AgainstNicaragua (Nicaragua-United States) (Merits) (1986)

Subject: Customary international law relating to the use of force,intervention, violation of sovereignty, and interruption of peace-ful maritime commerce; obligations under bilateral Treaty ofFriendship, Commerce and Navigation

Case Concerning the Frontier Dispute (Burkina Faso-Mali) (1986)Subject: Delimitation of land frontier; respect to be accorded tofrontiers inherited from colonization; decision by Chamber ofthe Court

Case Concerning Elettronica Sicula S.P.A. (ELSI) (United States-Italy)(1989)

Subject: Obligations of a state, under a bilateral Friendship,Commerce and Navigation Treaty, with respect to a corporationincorporated in that state but wholly owned by corporations ofanother state; decision by Chamber of the Court

Case Concerning Territorial Dispute (Libya-Chad) (1994)Subject: Determination of the course of a boundary; applicabili-ty of boundary definition contained in a treaty between one ofthe parties (Libya) and a former colonial power (France)

II. Advisory OpinionsConditions of Admission of a State to Membership in the UnitedNations (Article 4 of Charter) (1948)

Subject: Whether a Member State that recognizes that condi-tions in Article 4(1) of the UN Charter have been met, withrespect to a state seeking admission to membership in theUnited Nations, may subject its affirmative vote on membershipto the additional condition that other states also be admitted

Reparation for Injuries Suffered in the Service of the United Nations(1949)

Subject: Capacity of the United Nations to bring an internationalclaim for reparations against a government responsible for injur-

Appendix C: Selected ICJ Decisions 237

ing an agent of the United Nations in the performance of hisduties; nature of the "international personality" of the UnitedNations

Competence of the General Assembly for the Admission of a State to theUnited Nations (1950)

Subject: Whether the General Assembly can admit a state tomembership in the United Nations when the Security Councilhas made no recommendation for admission

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania(First Phase) (1950)

Subject: Interpretation of provisions in peace treaties enteredinto after World War II relating to the settlement of disputes,including the obligation of states to appoint representatives toTreaty Commissions for the settlement of disputes

Reservations to the Convention on the Prevention and Punishment ofthe Crime of Genocide (1951)

Subject: Scope and effect of permissible reservations to a multi-lateral treaty; rights of states that have signed but not yet ratifieda treaty

Effects of Awards of Compensation Made by the United NationsAdministrative Tribunal (1954)

Subject: Discretion of the General Assembly to refuse to giveeffect to an award of compensation made by the United NationsAdministrative Tribunal in favor of a UN staff member whosecontract of service was terminated without his consent

Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (1960)

Subject: Whether a committee of the Inter-GovernmentalMaritime Consultative Organization was properly constituted,in accordance with the Organization's governing constitution

Certain Expenses of the United Nations (Article 17, Paragraph 2, of theCharter) (1962)

Subject: Whether certain expenses relating to UN operations inthe Congo and in the Middle East were "expenses of theOrganization" within the meaning of Article 17, paragraph 2 ofthe UN Charter; relative competence of the General Assemblyand the Security Council in respect of the maintenance of inter-national peace and security

Legal Consequences for States of the Continued Presence of South Africain Namibia (South-West Africa) Notwithstanding Security CouncilResolution 276 (1971)

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Subject: Obligation of South Africa to withdraw its administra-tion from Namibia following the termination of South Africa'sLeague of Nations Mandate over Namibia; self-determination;obligation of states to recognize the illegality of South Africa'spresence in Namibia and the invalidity of South Africa's actsconcerning Namibia

Western Sahara (1975)Subject: Legal ties between the Western Sahara and theKingdom of Morocco, and between the Western Sahara and theMauritanian entity; decolonization, self-determination, and con-sultation of indigenous population by a referendum

Interpretation of the Agreement of 25 March 1951 Between the WHOand Egypt (1980)

Subject: Procedures with respect to the transfer of the regionaloffice of the World Health Organization, a UN specializedagency, from a state in which it has been located

Applicability of the Obligation to Arbitrate Under Section 21 of theUnited Nations Headquarters Agreement of 26 June 1947 (1988)

Subject: Obligation of the United States to arbitrate a disputebetween itself and the United Nations with respect to a pro-posed closure of the office of the Palestine LiberationOrganization's Observer Mission to the United Nations

Applicability of Article VI, Section 22, of the Convention on thePrivileges and Immunities of the United Nations (1989)

Subject: Interpretation of a treaty provision concerning theaccording of privileges and immunities to experts performingmissions for the United Nations, with respect to an invitation totestify before a sub-commission of the UN Commission onHuman Rights

Legality of the Threat or Use of Nuclear Weapons (1996)Subject: Circumstances in which the threat or use of nuclearweapons is authorized or prohibited under conventional andcustomary international law; the law of armed conflict, particu-larly international humanitarian law

APPENDIX D

UNITED NATIONS-RELATED AMERICAN BARASSOCIATION RESOLUTIONS, 1971-1996

The American Bar Association played a significant role in the forma-tion of the United Nations, and the Association has continued to be con-cerned with the Organization and its contributions to the law. TheAmerican Bar Association House of Delegates, which now representsover 300,000 U.S. lawyers, has adopted numerous resolutions relating tothe United Nations. UN-related resolutions of the House of Delegatesand, in a few instances, of the American Bar Association Board ofGovernors from the last twenty-five years are summarized below. Someof these resolutions are aspirational, supporting UN contributions tointernational peace and stability. Some of them recommend U.S. actionon specific topics relating to the United Nations or UN treaties, or con-cern UN action on specific topics. Many of them suggest ways in whichthe operation of the United Nations or its commissions or agencies maybe made more effective. All of them relate to ways in which UN activi-ties may further the rule of law in the world.

August 1971: Recommends U.S. acceptance of the Vienna Conventionon the Law of Treaties, which was adopted by a UN Conference ofPlenipotentiariesAugust 1972: Reaffirms support for the United Nations and urges U.S.efforts to strengthen the UN to make it a more effective instrument forworld peaceAugust 1972: Urges U.S. steps necessary to prohibit imports fromRhodesia into the United States, in conformity with a UN SecurityCouncil decision imposing economic sanctions against Rhodesia andwith U.S. obligations under the UN CharterAugust 1973: Supports authorizing U.S. funds to be contributed to theUN Environment FundAugust 1973: Recommends positions for the United States withrespect to sea-bed resources, fishery interests, environmental protection,

239


navigation and transportation, settlement of oceans disputes, and scien-tific research, in light of the convening of the Third UN Conference onthe Law of the SeaFebruary 1974: Calls on foreign lawyers to support acceptance of theUN Convention on Recognition and Enforcement of Foreign ArbitralAwardsAugust 1974: Urges that the United States try to insure that the UNGeneral Assembly's proposed Charter on the Economic Rights andDuties of States include provisions in line with the obligations of coun-tries under international law, and that the United States not support thatCharter absent such provisionsAugust 1975: Endorses UN proposal to develop and promulgate stan-dard minimum rules for supervising offenders in community correc-tions programsAugust 1975: Supports U.S. efforts to uphold rights of all UN MemberStates to participate in activities of the UN General Assembly and UNspecialized agencies, and endorses legal interpretation of UN Charterthat no Member State may be suspended or expelled without a recom-mendation of the UN Security CouncilFebruary 1976: Supports U.S. acceptance of the UN Convention on thePrevention and Punishment of the Crime of Genocide, with certainunderstandings and a declarationFebruary 1976: Resolves that the American Bar Association seek consul-tative status with the UN Economic and Social CouncilAugust 1976: Condemns 1975 UN General Assembly resolution onZionismAugust 1977: Opposes the transfer from New York to Vienna of theInternational Trade Law Branch of the UN Office of the Legal AdviserFebruary 1978: Supports compliance with the human rights provisionsof the Helsinki Agreement of 1975 and the UN Universal Declaration ofHuman RightsAugust 1978: Favors U.S. acceptance of the UN Convention on theElimination of All Forms of Racial Discrimination and urges the Senateto give its advice and consent to ratification, subject to specified under-standing, reservations, and declarationsFebruary 1979: Favors U.S. acceptance of the International Covenant onEconomic, Social and Cultural Rights and urges the Senate to give itsadvice and consent to ratification, subject to specified statements, decla-rations, and reservationFebruary 1979: Favors U.S. acceptance of the International Covenant onCivil and Political Rights and urges the Senate to give its advice andconsent to ratification, subject to specified reservations, declaration,statement, and understandings

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Appendix D: ABA Resolutions 241

August 1979: Opposes unilateral legislative restrictions on contribu-tions to the World Bank and other international development banks thatare inconsistent with their chartersFebruary 1980: Supports the U.S. claim filed with the InternationalCourt of Justice against Iran regarding hostages, welcomes the 19791.C.J.decision and order directing the release of U.S. hostages, and calls formeasures designed to secure compliance by Iran with the I.C.J. decisionand orderAugust 1980: Favors U.S. acceptance of the UN Convention on theRecovery Abroad of MaintenanceFebruary 1981: Acknowledges and supports the adoption by the UN ofthe Convention on the Prevention and Punishment of Crimes AgainstInternationally Protected Persons and the Convention Against theTaking of Hostages, and recommends a range of U.S. actions intended todeter and prevent acts of international terrorismAugust 1981: Supports U.S. acceptance of the UN Convention onContracts for the International Sale of Goods, subject to one reservationFebruary 1982: Urges U.S. approval of expansion of the advisory opin-ion jurisdiction of the International Court of Justice to include questionsof international law referred by national courtsAugust 1983: Supports changing the deep seabed mining regime ofthe UN Convention on the Law of the Sea to provide assured access andsecurity of tenure for deep seabed miners, and supports U.S. acceptanceof dispute settlement provisions of the Convention relating to non-seabed mining law of the sea issuesFebruary 1984: Favors U.S. measures leading the UN General Assemblyto adopt the principle that in all UN organs and specialized agencies,nations having a population of over 200 million would be automaticallyentitled to representation on an equal basis with various regional blocksAugust 1984: Favors U.S. acceptance of the Convention on theElimination of All Forms of Discrimination Against Women, subject tospecified reservations and a declarationFebruary 1985: Proposes principles relating to the nonproliferation ofnuclear weapons and to enhancing the effectiveness of internationalsafeguards concerning nuclear materialsAugust 1985: Urges the United States to present to the United Nationsproposals for the investigation of all serious reports of use of chemical orbiological weapons in violation of the 1925 Geneva Protocol and of the1972 Convention on the Prohibition of the Development, Production andStockpiling of Bacteriological (Biological) and Toxin Weapons and onTheir Destruction, and to take other actions with respect to internationallaw and treaty norms on chemical, biological, and toxin weaponsFebruary 1986: Supports efforts of the United States and other nations

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to bring about specific reforms in the United Nations Educational,Scientific and Cultural Organization (UNESCO), and supports U.S. par-ticipation in efforts to rehabilitate and improve UNESCO so that theUnited States will be in a position to consider a return to membershipFebruary 1986: Urges the United States to accept the UN ConventionAgainst Torture and Other Cruel, Inhuman or Degrading Treatment orPunishmentFebruary 1987: Urges the U.S. Senate to give its advice and consent tothe ratification of International Labor Organization Convention (No. 144)Concerning Tripartite Consultations to Promote the Implementation ofInternational Labor StandardsJune 1987: Calls for U.S. support for recent efforts by the UNSecretary-General to establish a standing office in the Secretariat to mon-itor, on a worldwide basis, situations that may become a threat to inter-national peace and security and to give early warning to the Secretary-General about such situationsNovember 1987: Urges the U.S. Government to support efforts of the UNInternational Law Commission to develop a Convention on ForeignState Immunity that is based on the restrictive theory of immunity con-sistent with the U.S. Foreign Sovereign Immunities Act of 1976, and thatdoes not preclude the further development of national remedies againstforeign states consistent with general principles of international lawFebruary 1988: Recommends U.S. acceptance of the Montreal Protocolon Substances that Deplete the Ozone LayerFebruary 1988: Urges the executive and legislative branches of the U.S.Government to take cooperative action so that payment will be madewithout delay to the United Nations, including its specialized agencies,of all amounts assessed to the United StatesAugust 1988: Condemns terrorist activities of the Palestine LiberationOrganization, and urges the U.S. Government to participate in arbitra-tion proceedings pursued by the United Nations in accordance with theU.S.-UN Headquarters Agreement, with respect to a proposed closure ofthe PLO's Observer Mission to the United NationsAugust 1988: Urges the U.S. Congress to enact legislation to imple-ment the UN Convention on the Prevention and Punishment of theCrime of Genocide, to which the Senate had previously given its adviceand consent to ratificationFebruary 1989: Supports the return of the United States to membershipin the United Nations Educational, Scientific and Cultural OrganizationAugust 1989: Calls on the U.S. Government to urge Iran, inter alia, toadhere to UN procedures for the resolution of alleged human rights vio-lations and accept a UN-sponsored delegation to investigate conditionsin Iranian prisons


August 1989: Supports U.S. acceptance of the 1974 UN Convention onthe Limitation Period in the International Sale of Goods, as amended bythe 1980 Protocol to that Convention, subject to a reservationAugust 1989: Urges the U.S. Government to initiate efforts to negoti-ate a series of treaties accepting the jurisdiction of the InternationalCourt of Justice, supports U.S.-Soviet initiatives with regard to increas-ing recourse to the Court, recommends that the United States concludewith the Soviet Union a treaty under which the two states would agreeto submit to the Court or to a Chamber of the Court disputes relating tointernational agreements listed in an annex to that treaty, and recom-mends that the United States conclude similar such dispute settlementtreaties with other statesAugust 1989: Endorses the global strategy of the World HealthOrganization for the worldwide prevention and control of AIDS, urgesU.S. support for WHO global program on AIDS, and urges the effectivecoordination of international AIDS programs conducted by the WHO,the Pan American Health Organization, and other organizationsAugust 1989: Urges the U.S. Government to instruct its representa-tives to, inter alia, the International Bank for Reconstruction andDevelopment, the International Development Association, and theInternational Finance Corporation to support the establishment ofhuman rights departments in such multilateral development banksFebruary 1990: Recommends that the United States accept the UNConvention on International Bills of Exchange and InternationalPromissory NotesFebruary 1990: Recommends establishment of a special U.S. high-levelworking group to determine what changes and clarifications wouldmake Part XI of the 1982 UN Convention on the Law of the Sea accept-able to the United States, what steps should be taken to make thesechanges and clarifications acceptable to other nations, and by what pro-cedures these changes and clarifications can best be madeFebruary 1991: Supports the peace plan for Cambodia prepared by thefive permanent members of the UN Security Council, supports establish-ment of a UN Transitional Authority for Cambodia, and urges certainfurther steps to promote the Cambodian peace processFebruary 1991: Condemns Iraq's invasion of Kuwait in violation ofArticle 2(4) of the UN Charter, condemns Iraq's failure to comply withUN Security Council resolutions adopted since August 2,1990, supportsmeasures taken to comply with UN Security Council decisions and rec-ommendations on the issue, and recommends that the United States andother UN Member States use all necessary means to restore internationalpeace and security in conformity with the UN CharterFebruary 1991: Supports in principle U.S. ratification of the UN


Convention on the Rights of the Child, and resolves to convene a work-ing group to identify and clarify issues related to possible reservationsto the ConventionAugust 1991: Urges the United Nations to provide international pro-tection for refugee health needs, to review the adequacy of current inter-national agreements to address the health and related humanitarianneeds of refugees and other displaced persons, to strengthen the protec-tion of refugee health under existing international agreements, and todevelop international agreements or other mechanisms to protect thehealth needs of all other displaced personsAugust 1991: Urges the United Nations and nation-states to adoptmeasures for the protection of the global environment and to develop andfoster policies and long-term strategic plans for sustainable developmentAugust 1992: Urges, as a matter of the highest priority, that the execu-tive and legislative branches of the U.S. Government pay immediatelyand in full the U.S. debt to the United Nations for its regular expensesand peacekeeping forcesAugust 1992: Recommends that the U.S. Government work towardsrinding solutions to legal and practical issues identified in reports of theTask Force on an International Criminal Court and of the New YorkState Bar Association, with a view towards the establishment of an inter-national criminal courtNovember 1992: Urges the U.S. Government and the UN SecurityCouncil to effect the investigation, and if warranted, the prosecution andpunishment, of persons who have committed war crimes or crimesagainst humanity in Bosnia-Herzegovina, and resolves to offer ABAassistance to the U.S. Government and the United Nations to identifyqualified lawyers, law professors, and judges who would be willing towork on issues related to alleged war crimes or crimes against humanityin Bosnia-HerzegovinaAugust 1993: Supports establishment by the UN Security Council ofthe International Tribunal for the Prosecution of Persons Responsible forSerious Violations of International Humanitarian Law Committed in theTerritory of the Former Yugoslavia since 1991, recommends U.S. imple-menting legislation related to the Tribunal, and recommends that theUnited States urge the United Nations to make every effort that theTribunal ensure due process for the accused and adequate protection forvictims and witnesses through specified measuresFebruary 1994: Suggests that U.S. ratification of the UN Convention onthe Rights of the Child be accompanied by specified reservations, under-standings, and declarationsAugust 1994: Recommends that the U.S. Government present a speci-fied declaration recognizing as compulsory the jurisdiction of theInternational Court of Justice

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August 1994: Recommends that the U.S. Government take an activerole in the establishment of an international criminal court that would bebased on specified principles concerning the court's consensual andmandatory jurisdictionAugust 1994: Recommends U.S. support for the recently created postof UN High Commissioner for Human Rights and for other measures toenhance die effectiveness of the United Nations in protecting humanrightsAugust 1994: Recommends that the U.S. Government take all possiblesteps to obtain the unconditional, indefinite extension of the Treaty onthe Non-proliferation of Nuclear Weapons (NPT) and work throughspecified steps to satisfy the NPT obligation to "pursue negotiations ingood faith on effective measures relating to cessation of the nuclear armsrace at an early date and to nuclear disarmament"August 1994: Recommends that the U.S. Government support the cre-ation by the United Nations, in addition to trained peacekeeping forces,of trained standby military forces for peacemaking and peace enforce-ment, composed of units from the national military forces of UNMember States, which would be available on call by the Security Councilunder conditions prescribed in agreements to be concluded pursuant toArticle 43 of the UN CharterFebruary 1995: Endorses efforts to protect women's human rightsthrough the adoption and enforcement of legal provisions for equalityand equal protection of the law, and recommends that the U.S.Government and nongovernmental organizations participating in theUN Fourth World Conference on Women in 1995 support inclusion inthe Conference's Platform of provisions for the removal of obstacles tothe realization of women's basic rightsAugust 1995: Recommends that the U.S. Government continue to giveits strong support to the World Health Organization, and that the U.S.Government support more effective implementation of public healthimprovements through increased WHO standard setting and develop-ment of elements of model legislation, regulations, and enforcementmeasures, adaptable to countries' individual needsAugust 1995: Recommends that the U.S. Government continue to givestrong support to the Food and Agriculture Organization, encourage theFAO in its efforts to restructure itself and streamline its operations, andendorse UN coordination of the roles of the FAO and other organiza-tions with which it worksAugust 1995: Recommends that the United States continue to be anactive, supportive member of the International Labor Organization, andurges accelerated progress by the tripartite President's Committee onthe ILO, Consultative Group on the ILO, and Tripartite Advisory Panel


on International Labor Standards towards ratification of ILO conven-tions on human rights that are consistent with U.S. law and practiceAugust 1995: Urges the U.S. Government to rejoin the United NationsEducational, Scientific and Cultural Organization at the earliest possibletime, so that it may take part in UNESCO's mandate to promote interna-tional cooperation through education, science, and cultureAugust 1995: Recommends that the U.S. Government support theInternational Atomic Energy Agency, take steps to enhance its safe-guards system and the application of its safety standards, and considerwhether there is need for separation of its promotional, safeguards, andcontrol activitiesFebruary 1996: Recommends that the U.S. Government support theInternational Monetary Fund and the World Bank Group, support theIMF's undertaking a reexamination of its role vis-a-vis international capi-tal movements and private international capital markets, and supportthe IMF and the World Bank Group giving increased attention to thedevelopment of legal systems in member countriesFebruary 1996: Supports the focus of the Platform for Action adopted atthe UN Fourth World Conference on Women on the role of law in pro-moting equality, equal protection, and access to opportunities and bene-fits for women, affirms the importance of legal literacy, supports thePlatform's call for integrating a gender perspective into developmentassistance programs, calls for implementation of the Platform's actionitems, and urges all levels of government in the United States to imple-ment relevant commitments in the Platform for ActionFebruary 1996: Reaffirms support for U.S. ratification of the Conventionon the Elimination of All Forms of Discrimination Against Women, andsupports, in principle, the development of an optional protocol to theWomen's Convention providing for an individual right of petition ascalled for in the Platform for Action adopted at the UN Fourth WorldConference on WomenFebruary 1996: Urges the United Nations and other international orga-nizations to implement relevant action items in the Platform for Actionadopted at the UN Fourth World Conference on Women, and calls onthe United Nations to take prompt steps to facilitate cooperative follow-up work by governments and other nongovernmental and internationalorganizationsFebruary 1996: Supports U.S. ratification of the UN Convention on theSafety of United Nations and Associated Personnel, and recommendsthat the United States and other parties interpret and apply theConvention in accordance with specified statements of understanding

APPENDIX E

CONTRIBUTORS

Members of the American Bar Association Section ofInternational Law and Practice Working Group on Improvingthe Effectiveness of the United Nations in Advancing the Ruleof Law in the World

Co-Chairs

Lotus B. SohnGeorge Washington University National Law CenterWashington, DC

Jay M. VogelsonStutzman & BrombergDallas, TX

Director

KathrynS. MackCarnegie Endowment for International PeaceWashington, DC

I. Task Force on the International Court of Justice

Louis B. Sohn (Chair)George Washington University National Law CenterWashington, DC

Daniel Parian (Rapporteur)Boston University School of LawBoston, MA

247


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Richard B. BilderUniversity of Wisconsin School of LawMadison, WI

Lori F. DamroschColumbia Law SchoolNew York, NY

Edison W. DickUnited Nations Association, National Capitol AreaWashington, DC

David M. LindleyWinthrop, Stimson, Putnam & RobertsNew York, NY

Ronald RobertsWinthrop, Stimson, Putnam & RobertsNew York, NY

II. Task Force on the International Criminal Court


Stuart H. Deming (Rapporteur)Kalamazoo, MI

Evan Bloom (Advisor)U.S. Department of StateWashington, DC

Curtis E. HallMiller, Canfield, Paddock & StoneKalamazoo, MI

William M. HannaySchiff, Hardin & WaiteChicago, IL

John F. MurphyVillanova University School of LawVillanova, PA

Michael P. ScharfNew England School of LawBoston, MA

Appendix E: Contributors 249

III. Task Force on International Human Rights


Patricia A. Bloodgood (Rapporteur)Opperman Heins & PaquinMinneapolis, MN

Richard B. BilderUniversity of Wisconsin School of LawMadison, WI

Thomas CarothersCarnegie Endowment for International PeaceWashington, DC

Roberta CohenInternational Human Rights Law GroupWashington, DC

Hurst HannumFletcher School of Law and Diplomacy, Tufts UniversityMedford, MA

Peter SpiroCarnegie Endowment for International PeaceWashington, DC

David WeissbrodtUniversity of Minnesota Law SchoolMinneapolis, MN

IV. Task Force on Arms Control and Nonprolif eration


Kenneth W. Abbott (Rapporteur)Northwestern University School of LawChicago, IL

George BunnCenter for International Security and Arms Control, Stanford UniversityStanford, CA


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Bonnie Jenkins (Advisor)U.S. Arms Control and Disarmament AgencyWashington, DC

Stanley R. ResorDebevoise & PlimptonNew York, NY

John B. RhinelanderShaw, Pittman, Potts & TrowbridgeWashington, DC

V. Task Force on Peacekeeping, Peacemaking, and Peace Enforcement


H. Francis Shattuck, Jr. (Rapporteur)New York, NY

Timothy EarnerWashington, DC

Hurst HartnumFletcher School of Law and Diplomacy, Tufts UniversityMedford, MA

Harry A. InmanPatton BoggsWashington, DC


Bruce C. Rashkow (Advisor)U.S. Department of StateWashington, DC

Edwin SmithUniversity of Southern California Law CenterLos Angeles, CA

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Members of the American Bar Association Section ofInternational Law and Practice Working Group on UNSpecialized Agencies and the International Atomic EnergyAgency

ChairH. Francis Shattuck, Jr.New York, NY

Ex Officio

Daniel B. Magraw (Advisor)U.S. Environmental Protection AgencyWashington, DC

Louis B. SohnGeorge Washington University National Law CenterWashington, DC

Jay M. VogelsonStutzman and BrombergDallas, TX

At Large

Frederic L. Kirgis, Jr.Washington and Lee University School of LawLexington, VA

Bruce C. Rashkow (Advisor)U.S. Department of StateWashington, DC

Oscar SchachterColumbia University School of LawNew York, NY

I. Task Force on the World Health Organization

H. Francis Shattuck, Jr. (Chair)New York, NY

Lane Porter (Rapporteur)Washington, DC

Susan ConnorNewark, NJ


William J. CurranHarvard University School of Public HealthBoston, MA

Ruth RoemerUCLA School of Public HealthLos Angeles, CA

II. Task Force on the International Monetary Fund and the WorldBank Group


Richard W. Edwards, Jr. (Rapporteur)University of Toledo College of LawToledo, OH

John W. HeadUniversity of Kansas School of LawLawrence, KS

Michael A. HellerUniversity of Michigan Law SchoolAnn Arbor, MI


Stephen ZamoraUniversity of Houston Law CenterHouston, TX

III. Task Force on the International Labor Organization


Frederic L. Kirgis, Jr. (Co-Rapporteur)Washington and Lee University School of LawLexington, VA

Virginia A. Leary (Co-Rapporteur)State University of New York at Buffalo School of LawBuffalo, NY

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John McDonald (Co-Rapporteur)Institution for Multi Tier DiplomacyWashington, DC

Robert GilbertGilbert &SackmanLos Angeles, CA

Richard D. O'ConnorSiegel, O'Connor, Schiff & ZangariHartford, CT

David Waugh (Advisor)Washington, DC

IV. Task Force on the International Atomic Energy Agency


Paul C. Szasz (Rapporteur)Germantown, NY

George BurtnCenter for International Security and Arms Control, Stanford UniversityStanford, CA

John B. RhinelanderShaw, Pittman, Potts & TrowbridgeWashington, DC

John H. ShenefieldMorgan, Lewis & BockiusWashington, DC

V. Task Force on the United Nations Educational, Scientific andCultural Organization


John H. Knox (Rapporteur)Bickerstaff, Heath & SmileyAustin, TX



Steven MarksColumbia University School of LawNew York, NY


VI. Task Force on the Food and Agricultural Organization


Ellen Kern (Co-Rapporteur)Denver, CO

Sampong Sucharitkul (Co-Rapporteur)Golden Gate University School of LawSan Francisco, CA


John H. KnoxBickerstaff, Heath & SmileyAustin, TX

Members of the American Bar Association Section ofInternational Law and Practice Task Force on War Crimes in theFormer Yugoslavia

Chair

Monroe Leigh (Executive Committee)Steptoe & JohnsonWashington, DC

Vice Chair

Patricia A. Bloodgood (Executive Committee)Opperman Heins & PaquinMinneapolis, MN

Secretary

Stuart H. Deming (Executive Committee)Kalamazoo, MI


Reporter

Elizabeth B. EcholsSteptoe & JohnsonWashington, DC

Other Members of the Task Force

Jose E. AlvarezUniversity of Michigan Law SchoolAnn Arbor, MI

William T. ColemanO'Melveney & MeyersWashington, DC

Lloyd CutlerWilmer, Cutler & PickeringWashington, DC

Aubrey M. Daniel, IIIWilliams & ConnollyWashington, DC

Robert DrinanGeorgetown University Law CenterWashington, DC

Geraldine A. FerraroKeck, Mahen & GateNew York, NY

Anne T. GoldsteinGeorgetown University Law CenterWashington, DC

Larry A. HammondMeyer, Hendricks, Victor, Osborn & MaledonPhoenix, AZ

Henry T. King, Jr.Case Western University Law SchoolCleveland, OH

David M. LindleyWinthrop, Stimson, Putnam & RobertsNew York, NY


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Daniel H. MargolisPatton BoggsWashington, DC

Roberts B. OwenCovington & BurlingWashington, DC

Kenneth B. Reisenfeld (Executive Committee)Reisenfeld & AssociatesWashington, DC

Partricia A. RileyOffice of the U.S. Attorney for the District of ColumbiaWashington, DC

Charles F.C. RullCovington & BurlingWashington, DC

Jerome ShestackWolf, Block, Schorr & Solis-CohenPhiladelphia, PA

Louis B. Sohn (Executive Committee)George Washington University National Law CenterWashington, DC

Pamela B. StuartWashington, DC

Don Wallace, Jr.Georgetown University Law CenterWashington, DC

Bruce ZagarisCameron & HornbostelWashington, DC

Authors of and Contributors to Other Recommendations andReports

Sanford E. GainesUniversity of HoustonHouston, TX

Houston Putnam LowryBrown & WelshMeriden, CT

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Daniel B. Magraw (Advisor)U.S. Environmental Protection AgencyWashington, DC

John E. NoyesCalifornia Western School of LawSan Diego, CA

C.J. PoirierPoirier Law OfficeFairway, KS

Louis B. SohnGeorge Washington University National Law CenterWashington, DC

Gregory H. Stanton (Advisor)Department of StateWashington, DC

Christopher D. StoneUniversity of Southern California Law CenterLos Angeles, CA

Tomme R. YoungMERITSan Francisco, CA

There Are Lots of Things

We Would Like You to Know about

the American Bar Association

and Its

Section of International Law and Practice

HERE ARE A FEW OF THEM:

® With a membership of nearly 400,000 lawyers, the American BarAssociation (ABA) is the largest private association of legal professionals inthe world.

® The ABA's Section of International Law and Practice has approximately15,000 members, located in the U.S. and throughout the world.

© The Section has four substantive divisions—Business Transactions andDisputes, Business Regulation, Public International Law, and ComparativeLaw—and 58 committees and task forces. Find the one that matches yourinterests and get involved today!

® The ABA works closely with the International Bar Association, the HispanicNational Bar Association, and other bar groups, and hopes to continue tofind ways to enhance this cooperation.

© The ABA, and the Section, welcome international members. You do notneed to be a U.S. lawyer to join. For further information, call (202)662-1034.

© The Section of International Law and Practice offers publications that deliverpractical, real-world information. Need direction for counseling a client?Consult Counseling Emerging Companies in Going International. Or per-haps Negotiating and Structuring International Commercial Transactions, orany of our other practical publications.

® The Section offers a variety of continuing legal education programs at itsFall, Spring, and Annual meetings and at shorter programs, all featuring topexperts in the field.

© There are many opportunities for policy development, designed to providemembers with a voice on issues ranging from foreign legal consultants tothe future of the United Nations.

more ^

The Section has an ongoing international technical assistance program.Many of our members assist the Cambodia Law and Democracy Project, forexample, in providing informational resources to the Government ofCambodia.

Our Women's Interest Network (WIN) worked to send the ABA's delegationto the U.N.'s Fourth World Conference on Women in Beijing, and will beproviding follow-up activities.

Our Young Lawyers' Forum provides networking opportunities for younglawyers and develops programs and services of interest to young lawyers.

Each Section member receives, as a membership benefit, complimentarysubscriptions to our newsletter, International Law News, and to our journal,The International Lawyer.

Our International Legal Exchange (ILEX) delegations travel to destinations ofcurrent interest. In the coming months, one delegation will travel to Vietnamand Hong Kong and another to India.

The Section has practical information on the practice of law in an interna-tional context, ranging from our International Practitioners' Workshop Seriesto our International Law Practice Management Committee.

We hope you will join us for the Section's 1997 Spring Meeting inWashington, DC, and our 1997 Annual Meeting in San Francisco. For fur-ther information, call (202) 662-1660.

TO JOIN THE ABA AND THE SECTION, CALL 1-800-285-2221.

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Fax this form to (202) 662-1669 in the U.S., or mail it to Steve Gately, ABA, 74015th Street, N.W., Washington, DC 20005, or send us the same information bye-mail, at [email protected].

I Practice Resources for International Lawyers

\ The United Nations at 50:! Proposals for Improving Its Effectiveness

Edited by John E. Noyes

One of the stated goals of the American Bar Association is to "advance the rule of law of the world,'and it is this goal that explains the ABA's involvement with the United Nations. Most of the propos-

als in this book are the result of a two-year effort by the ABA to make a substantive contribution to the' UN's 50th anniversary in 1996. The reports in this book all discuss the problems with which the UN has

had to deal in the past 50 years as well as suggestions for possible improvements in the work of the UNand its principal agencies. ~

j ISBN: 1-57073-365-1-PC: 521-0113-January 1997* 258 pages$30 for section members • $40 for nonmembers of the section

The World Trade Organization: Multilateral Trade Frameworkfor the 21st Century and U.S. Implementing LegislationEdited by Terence P Stewart

T^his new book provides lawyers with a valuable, one-volume overview of the importance of theJl World Trade Organization and the new liberalization steps embodied in the Uruguay Round Agree-

ments. Most of the chapters, written by top practitioners and legal scholars in international trade law,examine individual areas that were key subjects during the negotiations or during the implementinglegislative process.

ISBN: 1-57073-165-9 • PC: 521-0107 • August 1996 • 762 pages$80 for section members • $95 for nonmembers of the section

The International Lawyer's DeskbookEdited by Lucinda A. Low, Patrick M. Norton, and Daniel M. DroryflHhe International Lawyer's Deskbook provides the first one-volume guide for addressing unfamiliarJ. international legal issues and is an invaluable resource for the international expert and the generalpractitioner alike. Experts in 25 fields explain how to navigate through the maze of U.S., foreign, andinternational rules that apply to international transactions, regulatory issues, and disputes. Each chap-ter provides an overview of the subject area followed by an up-to-date bibliography of the most impor-tant materials in the field. The authors also identify sources at U.S. government and internationalagencies that can provide prompt, practical assistance.

ISBN: 1-57073-166-7 • PC: 521-0106 • February 1996 • 416 pages$75 for section members • $85 for nonmembers of the section

A Lawyer's Guide to Doing Business in South AfricaEdited by Vaughn C. Williams, William M. Hannay, Michael R. Littenberg, andLauren G. Robinson

T A 7ith the dismantling of apartheid and the implementation of a fully democratic government, thereV V has been a groundswell of interest in the economic potential of South Africa. This new book,

written by leading South African legal practitioners, scholars, and government officials, provides law-yers with practical advice on doing business and practicing law in this ever-changing region. Lawyerscan find out how to form and draft joint ventures, establish distribution networks, resolve commercialdisputes, and protect intellectual property rights under the South African system of law.

ISBN: 1-57073-364-3 • PC: 521-0111 • August 1996 • 212 pages$29 for section members • $40 for nonmembers of the section

"Al a lime when the United Nations is viewed with doubl. and dis<iffecl-ion, this vol-ume presents an informed approach that is neither naive nor cynical. The Uni tedNations at 50 supplies an impressively balanced, articulate, constructive assessment,of the accomplishments of and challenges for the UN organization in the future. Itcontains cogently crafted, eminently reasonable proposals for strengthening the orga-nization.^ contribution to the rule of law, especially regarding international courts,the use of force, nuclear non-proliferation, the world environment, human rights, andthe operation of various UN functional agencies. In this way the study makes a com-pelling case that the United Nations will and must play a vital world role in the years .ahead. Its legally responsible reports and politically sensible recommendations there-fore deserve extensive consideration, by U.S. policymakers and diplomats, as well asby serious students and practitioners of international law."

Christopher C. Joyner, PhD

Professor of Government, Georgetown UniversityCo-Kclilor. United Nnl-ionx h-.gal- Order

The United Nations Organization has evolved over the years. From its founding at the closeof Woild Wai II with 51 ouginal Memhei States, the Oiganizalion's membeiship hasme leased to 185 The UN lemains the only univeisal met hanism available to puisue theimpoitant woildwide goals of piomoting international peat e and se( uii ty, iespe( t foi humanlights, and self-deteirainatum of peoples. Despite its limited poweis, the UN has con-tiibuted, and in the futuie is likely to t ontiibute, to solving the woild's pjoblems and advaiK -ing the lule of law of the woiltl * *

The lepoits in this book' all disc uss the pioblems with whu h the UN has had to deal in thepast 50 yeais, its successes, and the difficulties it has emounteied They also contain sug-gestions foi possible impiovemenls in the woik ol the'UN and its pnncipal agenc les. Reportsdeal not only with peacekeeping, aims contiol, and the Inteinational Couit of Justice andothei international tiihunals, but also with pioblems of health, hungei, laboi, lespect foihuman lights, inteinational f inanc ing and development*, contiol of the use of nuc leai eneigyfoi peaceful puiposes, and the piotection of the sea and the global envnonment '

S-.j , '"""" ' „"".'"" ' ' T<:Ameri(dii HJI Association740 15lh Street. NWWusliin-lon. DC 20005

American Bar Association750 North Lake Shore Drive,

Chicago". 11.60611

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