Name: Katerina Novotna Address: c/o Mr. Julian Shelley Ty Gwyn, Lluest, Waunfawr, Aberystwyth Wales SY 23 3au e-mail: kkn06@aber.ac.uk, kacca@email.cz phone number: 07946923592 Institution: University of Wales, Aberystwyth LLM by Research (International Public Law) Thesis: Analysis of Cases of Mixed Criminal Tribunals (The Special Court for Sierra Leone) The Security Council, civil society, and human rights I. Burma on the agenda of the Security Council? Human rights groups have long urged the Security Council (the SC) to consider the human rights and political situation in Burma in order to address widespread and systematic abuse of human rights by the military government.1 Burma remains one of the most repressive countries in Asia, despite promises for political reform and national reconciliation by its authoritarian military government, the State Peace and Development Council (SPDC). The repetitive words of 15 years worth of U.N. reports, statements and GA resolutions, and the efforts of a sequence of U.N. Special Envoys and Rapporteurs have failed to affect any positive change in Burma whatsoever. For 15 years the government of Burma has refused to implement recommendations made under Art. 39 of the UN Charter. It is now necessary to employ enforcement measures under Art. 41, which provides the legal basis for all non-military enforcement measures. While the latter create binding effects in the international legal order, the former are limited to non-mandatory suggestions. However, 15 years of nonbinding international pressure on Burma’s ruling junta had failed. The SC used Art. 41 several times to impose obligations on the target State itself. For example it set out a demand to the Bosnian Serbs to accept a specific plan for a territorial settlement2 or it obliged Iraq to destroy different categories of weapons.3 II. Criticism of the Security Council practice under Chapter VII of the UN Charter in relations to ‘human rights cases’ The SC has normally been reluctant to include human rights violations as the main basis for sanctions and, when sanctions are decided, the SC has adopted an ad hoc approach, thus avoiding the creation of precedents. Preference of ad hoc solutions translates into legal action the political will of states and their particular policies. ‘Adhocism’ therefore appears as a deregulative tool in the sense that, avoiding precedent, it cannot permit a clear set of rules, which may have negative impact on the current international law of institutional protection of human rights.4 The sanction regimes continue to be managed independently, with a case-by-case approach. This approach proved, in many cases, insufficient to cope with the severe humanitarian consequences of SC measures on broader parts of the population.5 From analysis of previous situations, it can be assumed that there are are five criteria for bringing a country to the Security Council agenda: the overthrow of a democratic government, conflict among factions, human rights and humanitarian violations, refugee outflows and other transnational issues such as drug trafficking and HIV/AIDS. In the cases of Sierra Leone, Afghanistan, Yemen, Haiti, Rwanda, Liberia and Cambodia, only some of these criteria were met, and yet they were discussed at Security Council level and action resulted from the resolutions passed. Burma, in contrast, conclusively meets all five criteria and yet has never been brought to the agenda of the Security Council. Thus, with regards to the concept of ‘threats to peace’, it can be argued that issues of double standards and different involvement depending on the case threatens the legitimacy of the SC, undermining its authority in public opinion. Both the history of the Charter and subsequent State practice show that the SC is under no obligation to make a determination under Art.39, even if it considers that a threat to or breach of the peace exists- Art. 39 empowers, but does not oblige the SC to act. Thus, putting Burma on the agenda will depend on the will of the SC’s member states. Nevertheless, the SC has recently reaffirmed its determination “to give equal priority to the maintenance of international peace and security in every region of the world.”6 Whether the SC can find a way to deal with the situation is in many respects not only a question for Burma, but a challenge to the United Nations’ ability to carry out its own Charter. 1 The possibility of putting Burma on the Security Council agenda has been boosted by a recent report, “Threat to Peace - A Call to the UN Security Council to Act in Burma.” The report was commissioned by Vaclav Havel, former president of the Czech Republic, and Nobel Peace Prize laureate Archbishop Desmond Tutu of South Africa. It calls for “an urgent, new and multilateral diplomatic initiative” on Burma and for Security Council action. 2 SC Res. 942, Sept. 23, 1994. 3 SC Res. 687, Apr.3, 1991. Aznar-Gomez, M.J., ‘A Decade of Human Rights Protection by the UN Security Council: A Sketch of Deregulation?’, EJIL (2002), Vol. 13 No. 1, pp. 223-241. 4 5 Simma, B. (ed.), The Charter of the United Nations: A Commentary (2002), p. 745. ‘Declaration on ensuring an effective role for the Security Council in the maintenance of international peace and security, particularly in Africa’ (SC Res. 1318 (2000), annex). 6