Evrigenis Yearbook of International and European Law
(EvrYIEL)
Editions Ant. N. Sakkoulas Limited Partnership
ΑΘΗΝΑ 2019
Evrigenis Yearbook of International and European Law
(EvrYIEL)
EDITOR IN CHIEF
ASSOCIATE EDITOR
Paraskevi Naskou‐Perraki
Ioannis Tzivaras
Ret. Professor, University of Macedonia
Tutor, Open University of Cyprus
EDITORIAL COMMITTEE
Emmanuel Roucounas Emeritus and Honorary Professor, National Kapodis‐
trian University of Athens
Ioannis Voulgaris Emeritus Professor, Democritus University of Thrace
Christos Rozakis Emeritus Professor, National Kapodistrian University of
Athens
Nikitas Aliprantis Emeritus Professor, Université de Strasbourg III Robert
Schuman, ret. Professor, Democritus University of Thrace
Antonios Bredimas Emeritus Professor, National Kapodistrian University of
Athens
Antonis Manitakis Emeritus Professor, Aristotle University of Thessaloniki
Angelos Giokaris Emeritus Professor, National Kapodistrian University of
Athens
Anastasia Grammatikaki‐Alexiou Emerita Professor, Aristotle University
of Thessaloniki
Zoe Papassiopi‐Passia Emerita Professor, Aristotle University of Thessalo‐
niki
Efi Kounougeri‐Manoledaki Emerita Professor, Aristotle University of
Thessaloniki
Panagiotis Kanellopoulos Emeritus Professor, University of Piraeus
Athanassios Kaissis Emeritus Professor, Aristotle University of Thessaloniki
Konstantinos Stefanou Emeritus Professor, Panteion University
Konstantinos Chatzikonstantinou Emeritus Professor, Aristotle Univer‐
sity of Thessaloniki
Stelios Perrakis Emeritus Professor, Panteion University
Grigorios Tsaltas Emeritus Professor, Panteion University
Symeon Symeonides Alex L. Parks Distinguished Professor, Dean Emeri‐
tus, Willamette University
Haritini Dipla Emerita Professor, National Kapodistrian University of Ath‐
ens
2
ADVISORY BOARD
William Schabas Professor, Middlesex University London
Claus Kreß Professor, University of Cologne
Blanca Vila Costa Professor, Autonomous University of Barcelona
Ioannis D. Evrigenis Professor, Tufts University
Evhen Tsybulenko Professor, University of Tallinn
Michail Chrysomallis Professor, Democritus University of Thrace
Georgios Dellios Professor, Aristotle University of Thessaloniki
Vassilis Hatzopoulos Professor, Panteion University
Stavros Katsios Professor, Ionian University
Petros Liakouras Professor, University of Piraeus
Konstantin Magliveras Professor, University of Aegean
Elina Moustaira Professor, National and Kapodistrian University of Athens
Donatos Papagiannis Professor, Panteion University
Photini Pazartzis Professor, National Kapodistrian University of Athens
Linos‐Alexandros Sisilianos Professor, National Kapodistrian University of
Athens
Dimitrios Skiadas Professor, University of Macedonia
Konstantinos Tsitselikis Professor, University of Macedonia
Ioannis Tzionas Professor, University of Macedonia
Despoina Anagnostopoulou Associate Professor, University of Macedonia
Constantine Antonopoulos Associate Professor, Democritus University of
Thrace
Foteini Asderaki Associate Professor, University of Piraeus
Emmanuella Doussis Associate Professor, National Kapodistrian University
of Athens
Maria Gavouneli Associate Professor, National and Kapodistrian University
of Athens
Aristotelis Konstantinides Associate Professor, University of Cyprus
Ioannis Ktistakis Associate Professor, Democritus University of Thrace
Sergey Sayapin Associate Professor, KIMEP University
Thomas Skouteris Associate Professor, American University in Cairo
Ioannis Stribis Associate Professor, University of Aegean
Angelos Syrigos Associate Professor, Panteion University
Alexandros Tsadiras Associate Professor, Open University of Cyprus
Antonios Tzanakopoulos Associate Professor, University of Oxford
Nikolaos Zaikos Associate Professor, University of Macedonia
Vassilios Grammatikas Assistant Professor, Democritus University of
Thrace
Konstantinos Kouroupis Assistant Professor, Frederick University
Metaxia Kouskouna Assistant Professor, National Kapodistrian University
of Athens
George Kyriakopoulos Assistant Professor, National Kapodistrian Univer‐
sity of Athens
Vassilis Pergantis Assistant Professor, Aristotle University of Thessaloniki
3
Miltiadis Sarigiannidis Assistant Professor, Aristotle University of Thessa‐
loniki
Michail Vagias Assistant Professor, Hague University of Applied Sciences
Anastasios Gourgourinis Lecturer, National Kapodistrian University of
Athens
Thomas Papadopoulos Lecturer, University of Cyprus
Efthymios Papastavridis Lecturer and Researcher, University of Oxford
Evrigenis Yearbook of International and European Law
(EvrIEL)
Editorial
The Evrigenis Yearbook of International and European Law
(EvrIEL), dedicated to Professor Dimitrios Evrigenis, is a new, peer re‐
view, Journal, aimed at the publication of original research and scholar‐
ship in the fields of Public International and Private International Law,
Law of the European Union, Immigration and Asylum Law, Interna‐
tional Protection of Human Rights, International Economic Law as well
as Legal Informatics, the late Professor’s particular fields of interest. The
Journal aims to provide a forum for quality International and European
research into all the aforementioned facets, covering general and special
issues of the highest impact of both practical and theoretical nature. In
support of conducting research, EvrIEL publishes articles, essays, cur‐
rent developments and editorial comments on these topics in English,
French, or German and features, also, book reviews by scholars and
practitioners that engage with the key words in the field of International
and European Law. The Yearbook’s Editorial Board includes a broad
range of Professors representing these fields, both from Greece and
abroad, and seeks to represent all scientific perspectives of the fields of
law that it encompasses. Articles are reviewed by members of the Edito‐
rial Board and the selection for publication is made by the Editors in
consultation with the Editorial Board. The Yearbook is intended to fill a
significant gap in Greek scientific fora, which lack a precise and solid
Journal addressing all the contemporary developments and future
prospects of the aforementioned fields of Law. The present Issue con‐
tains articles of Professors and scientists that comprise the research staff
of the Hellenic Institute on the United Nations Affairs, in Thessaloniki,
which resulted from two Conferences organized by the Institute and the
Hellenic Association of Political Scientists (HAPSc) in Thessaloniki and
Athens. The Editorial Board is in the process of assembling the second
issue of the Yearbook. The idea to dedicate the Yearbook to Dimitrios
Evrigenis came from the Directorate of the Hellenic Institute on the
United Nations Affairs, in particular its Director, ret. Professor
Paraskevi Naskou‐Perraki, University of Macedonia and its Deputy Di‐
rector, Dr. Ioannis P. Tzivaras, Tutor at the Open University of Cyprus
(OUC).
Thessaloniki, October 2019
†
PROFESSOR DIMITRIOS EVRIGENIS
1925‐1986
The early death of Professor Dimitrios Evrigenis on the 27th of Janu‐
ary 1986, deprived Greek society of a progressive member and the legal
community of an eminent legal scientist. Greek thought was deprived of
the contributions that everyone was anticipating from the mature phase
of Evrigenis’s intellectual development.
Dimitrios Evrigenis was born in Thessaloniki on the 10th of September
1925. He studied Law at the Law Faculty of Aristotle University of Thes‐
saloniki, graduating in 1947. After serving in the military, he submitted
his doctoral dissertation to the same Faculty, and in that year, he be‐
came an attorney at law in Thessaloniki. He continued his studies
abroad, first in Paris, and then in London and in Germany (Tübingen).
Around that time, he began expressing interest in Private International
Law, a subject in which he became Lecture in 1957, presenting a disser‐
tation on the implementation of foreign law.
He began teaching the following year. In 1961 he was elected Associ‐
ate Professor and, in 1965, Professor of Private International Law in the
Aristotle University Faculty of Law and Economics, in Thessaloniki.
With the exception of a brief interlude imposed by the dictatorial re‐
gime, he remained a devoted teacher almost until his death. During the
1978‐1979 academic year, he served as Dean of the Faculty.
In 1967, he was asked to serve as Secretary General at the Ministry of
Northern Greece, but his career was interrupted by the dictatorship,
which he fought from the beginning, as a member of the Democratic De‐
fence of Thessaloniki. In 1968, he was arrested, imprisoned, was exiled
and removed from his academic post. Upon the restoration of democ‐
racy, he was elected Member of Greek Parliament (1974‐1977) and ap‐
6
pointed Undersecretary of National Education and Religion (1974‐1975),
a position he resigned from as a matter of principle. He was the first
President of the Governing Committee of the Democritus of Thrace
(1974‐1975), where he established the School of Law and appointed the
first Professors.
His annotations in the Law School as Dean and Chair of the newly‐
established Department of International Studies had a big impact dur‐
ing the first decade of political transition. He led the effort to establish,
in 1977, the Center for International and European Economic Law
(CIEEL) in Thessaloniki, which he served as inaugural Secretary, later
becoming the Director and Chairman of the Board.
After the return of Greece to the Council of Europe, following the dic‐
tatorship, Dimitrios Evrigenis was appointed Judge on the European
Court of Human Rights (ECtHR). During this era of international pro‐
tection of human rights, he had already developed a substantial re‐
search agenda in the field. His contribution to the Court is evident in his
several written opinions. In 1982, he became a member of the United
Nations Committee for the Elimination of Racial Discrimination.
His election to the European Parliament, in 1984, marked the begin‐
ning of a new‐unfortunately brief‐phase in his distinguished career. He
resigned from the University and the CIEEL, and became deeply in‐
volved in the European Parliament, in particular the Committee on Le‐
gal Affairs and Citizens’ Rights. Just before his death, he concluded his
work as Rapporteur for the Committee of Inquiry into the Rise of Fas‐
cism and Racism in Europe, and submitted the landmark Report on the
Findings of the Inquiry, which was implemented posthumously and
named in his honor.
His immense scientific work is marked by open‐mindedness, astute‐
ness, originality, imagination and a rare ability to identify future trends
before most others. His speech, both written and verbal, was plain and
austere, but clear and precise.
The international scientific community recognized his worth from
early on. He was invited at the Academy of International Law of Hague,
at many leading Universities around the world and he served as organ‐
izer or rapporteur of several international conferences. He was a leading
Greek presence in international jurisprudence.
Unfailingly kind and supportive, he was characterized by his strong
ethics and values, as well as his adherence to the highest standards.
Sadly, his family and colleagues, Greece, and the law lost him suddenly,
in Strasbourg, in 1986.
Table of Contents
Editorial ……………………………………………………………….
4
Part I
In Memoriam Dimitrios Evrigenis
Paraskevi Naskou‐Perraki
Dimitrios Evrigenis: Founder of Democritus University of
Thrace and of the Law Faculty in Komotini ……………………..
Anastasia Grammatikaki‐Alexiou
Dimitrios Evrigenis: A Wonderful Person ………………………..
Ioannis D. Evrigenis
The Jurist as Social Scientist ………………………………………..
Antonis Manitakis
L’Importance du « Rapport d’Evrigenis pour le Racisme et le
Fascisme » et la Résolution Relative du Parlement Européen
(1986) …………………………………………………………………...
Efi Kounougeri‐Manoledaki
Dimitrios Evrigenis, my Professor of Private International Law
Georgios Dellios
Die Aktualität des Denkens von Dimitrios Evrigenis …………..
Costas Popotas
Dimitrios Evrigenis as an instigator of novelty and the infancy
of legal informatics in Greece ………………………………………
Zoe Papassiopi‐Passia
Dedication to Professor Evrigenis: The Greek Nationality Law
as part of Private International Law Courses ……………………
13
18
22
30
34
36
39
45
Part II
The United Nations, Developments, Challenges, Perspectives
Antonios Bredimas
L’Examen Périodique Universel: Un Nouvel Mécanisme de
Promotion des Droits de l’Homme dans le Cadre des Nations
Unies …………………………………………………………………..
Paraskevi Naskou‐Perraki
The Complaint Mechanism under the United Nations Human
Rights Treaties and the Jurisprudence of the Committees …….
Vassilios Grammatikas
The Protection of Minorities in the UN Context …………………
Konstantin Magliveras
Some Thoughts on the Long Overdue Revision of the UN
Charter …………………………………………………………………
61
69
89
103
8
Constantine Antonopoulos
The United Nations and Nuclear Weapons ………………………
Ioannis Stribis
Libyen, Syrien, Jemen… Ein Vorzeitiges Absterben der
„Schutzverantwortung“ (Responsibility to Protect)? ……………
Vassilis Pergantis
The Relationship between the UN Security Council, the Inter‐
national Criminal Court and Third States: Some Thoughts on
the Al‐Bashir Case ……………………………………………………
Ioannis Tzivaras
Russian‐Ukrainian War and International Criminal Law: A
Case Study about Crimes against Sexual Dignity ………………
Harikleia Aroni
Changing the Map: The United Nations and International Law
on the Creation of States ……………………………………………
Donatos Papagiannis
United Nations and the European Union …………………………
Konstantinos Kouroupis
La portée du Règlement 2016/679 a la « fonction juridiction‐
nelle » des juridictions ………………………………………………
117
125
141
159
167
180
185
Part III
Special Issue: The United Nations Goals and Sustainable
Development: Between Theory and Practice
Georgia Apostolaki
Perceptions of Peace: The SDG 16 through the Eyes of the UN
Security Council, the General Assembly and the Secretary
General ………………………………………………………………..
Antigoni‐Maria Spyropoulou
The Global Challenge of Combating Human Trafficking as
Part of the Sustainable Development Goal Nr 16 of the UN ….
Eirini Giannaki
Sustainable Production and Consumption under the UN Goals
Anastasia Rentifi
Sustainable Medical and Thermal Tourism ……………………...
Fondana Marmani
Gender Mainstreaming in the Greek Educational System and
Recommendations for Gender Equality ………………………….
Evangelos Stergioulis
Policing in the Greek Society’s Diversity ………………………..
Eleftherios Georgiadis
The Reform of the Security Council ……………………………….
193
213
230
233
245
257
267
Evrigenis Yearbook of
International and European Law
(EvrIEL)
Volume 1 (2019)
In Memoriam Dimitrios Evrigenis
Dimitrios Evrigenis: Founder of Democritus University
of Thrace and of the Law Faculty in Komotini
Paraskevi Naskou‐Perraki
Ret. Professor, University of Macedonia
1. Meeting Evrigenis
I met Professor Dimitrios Evrigenis in 1966, when I was a first year student
at the Law Faculty of Aristotle University of Thessaloniki (AUTH), at his law
office, Venizelou 4. I went there in order to meet my girlfriend Olga, who was
working there as a secretary. I was impressed; it was the first time in my life I
had shaken hands and talked, even for two minutes, with a professor and
above all professor Evrigenis.
It was unfortunate that during the 4 years of my studies at the Law Faculty
of AUTH, I did not have the chance to listen to his lectures, because in 1967,
during the military regime, professor Evrigenis spent a few years in exile at
Karpenissi. When he came back to the Faculty, I had already graduated. In
1971, I was informed by my dear classmate Nikos Themelis that Evrigenis in‐
troduced, for the first time, a non‐official master’s program on International
Private Law, addressed mainly to his assistants and PhDs candidates, and I de‐
cided to attend it.
He welcomed me with his warm smile and kindness. I was happy I had fi‐
nally the chance to listen to him and mostly to work with him particularly on
my thesis on ”Article 25 of the Greek Civil Code”. His comments were very
positive and offered me an opportunity to continue my studies with a Master’s
program in the USA, at Roosevelt University in Chicago.
It was summer of 1974; the military junta had fallen when I came back from
the USA for vacations. I went to visit him at the University asking for his ad‐
vice on the new master’s degree I was going to attend, at the University of Chi‐
cago on International Relations. He looked at the program carefully and after
suggesting that I focus mostly on courses of International Economic Law, he
proposed my applying for the post of an assistant to the professor at the new
Law Faculty in Komotini, where he had just been nominated for the position of
the President of the Administrative Board for the creation of Democritus Uni‐
versity of Thrace (DUTH).
And so, I did, becoming professor Evrigenis assistant. The first three
months I was working with him at the headquarters of the University which
were in Thessaloniki at Chrysikopoulou Arcade, Tsimiski str., preparing the
enrolment of 200 new students, in Komotini Faculty of Law and 110 at the
Polytechnic School of Engineering in Xanthi. In October 1974, following the
parliamentary elections, Evrigenis became a member of the parliament taking
soon the post of Deputy Minister of Education. Therefore, by mid December he
quit the post of the President of DUTH and went to Athens at the Ministry of
Education. As for me, the new President Prof Lycimachos Mavridis asked me
14
to present myself in Komotini at my post.
During the few months I worked with him at the headquarters of the
DUTH, I was impressed by his method to organize a University form the be‐
ginning, his way of cooperating with the people at the office, the authorities in
Komotini, and the effectiveness and results of his methods.
Years later, I visited Evrigenis at the Center of International and European
Economic Law, which was created by him in 1976, to ask for his advice on my
doctoral thesis. He was then the Greek Judge at the European Court of Human
Rights. I still keep the plan he proposed and wrote for me as well as the
method of research with utmost reverence. He always remembered the theme
of my PhD and it is amazing that wherever I met him at the headquarters of
the Center at Morihovou Square, he took the chance to inform me with the lat‐
est jurisprudence of the Court on the issue.
2. Democritus University of Thrace
The history of DUTH started on September 4, 1974 after the fall of the Greek
dictatorship, when by Ministerial Decree the first members of the Provisional
Administration of DUTH were nominated. President: Dimitrios Evrigenis Pro‐
fessor at the Law Faculty of AUTH, members: Konstantinos Kerameas and
Konstantinos Vougioukas. The administrations took office temporarily at
Chryssikopoulou Arcade, Tsimiski in Thessaloniki and Evrigenis started his
personal ‘’marathon’’ to find buildings and personnel, furniture and equip‐
ment in order to prepare the University for the new students who should start
classes by October the same year.
First, it was to be decided which was going to be the seat of the DUTH,
Komotini or Xanthi. Evrigenis faced reaction which he over passed. The seat of
the DUTH would be in Komotini where the seat of the Law Faculty was also.
The Polytechnic school would be seated in Xanthi.
In September – October 1974 two persons struggled to create the basic pre‐
conditions for the functioning of the Law Faculty. Evrigenis on the one hand,
representing the University, and Panagiotis Foteas, on the other, Prefect of Ro‐
dopi at the time, offering the infrastructure, a brand new high school which
was ready by then to shelter the high school students of Komotini. The two
men had an excellent cooperation. At the same time, Foteas was moving from
the local administration public functionaries to serve as Secretariat, logistics,
doormen etc. New dormitories were built by an individual constructor, while a
restaurant offered meals for the students. The local school authority and the
people of Komotini reacted, since they were expecting to house high school
students at the new building. This reaction lasted for some years, because there
was a lack of buildings in Komotini.
Foteas was present and helpful even after the start of the Law Faculty, offer‐
ing his help continuously, working hard to satisfy all demands of Evrigenis
and talking constantly with the new professors, students and the local people,
underlying the importance of the university, and its national role it was meant
to play.
15
At the same time, Evrigenis, tried to choose the academic staff for the new
School, signing the first contracts with 26 assistants to the professors, who
were chosen out of 76 applications. There were all lawyers, some of them with
masters, three with PhDs.
Those first people took in their hands the Law Faculty, helped in the crea‐
tion of the library, the offices of the Dean and the professors, they were moving
tables, carrying documents, and lecturing in seminars. The 26 assistants –some
from the local Bar Association ‐ who arrived in Komotini, prepared the wel‐
come of the 200 students and of the visiting professors who arrived soon after.
Evrigenis’ idea was to take time before electing the permanent new academic
staff of the Law Faculty, and for this reason, he accepted only 3 PhDs holders
who came with a 3 year contract. These were Vassilis Kostopoulos, Gregory
Koutrakis and George Paschos and the rest of the Professors were already pro‐
fessors at the other two Law Schools of Athens and Thessaloniki.
It was a fine idea, offering the new students experienced professors, who
were visiting Komotini to teach every 15 days, being happy themselves for this
opportunity. At the same time, new seats opened for the new Profs, who came
with an annual contract, the first being Krateros Ioannou and Ioannis Voul‐
garis, both professors later at the Law Faculty and the Department of Interna‐
tional Studies.
The first students were very liberal and active, always present at the only
amphitheater which was provided for them, and the freshmen who grew up
during the regime of lack of political freedom, were open to dialogue, express‐
ing different opinions, and marching on the 17 of November, date of the revo‐
lution of Polytechnic in 1972 in Athens, creating an atmosphere of uncertainty
at the conservative society of the city.
The majority of the academic faculty personnel came from the Law School
of AUTH. There were also professors from the Law Faculty of Athens. All
those professors accepted Evrigenis’ invitation to support the autonomous
march of the third Law Faculty with pleasure.
Evrigenis offered his charismatic ideas to the new program of the School.
His second fine idea concerning the third Law School of the country was to
prepare a new curriculum for all Law Faculties! His conception was to have in‐
troductory courses to all branches of Law. The first year (since all courses were
yearly courses) the students were able to attend introductory courses, such as
introduction to civil law, penal law, commercial law, the organization of the in‐
ternational community, sociology and philosophy of law. From the 2nd year
onwards, all other specializations would begin on the program. This concep‐
tion worked with success and lingered for a few more years, giving a new
prism to the legal studies. This program worked for some years with great suc‐
cess. It was changed later by the newly elected professors. Among the courses,
the introduction to the International Community was the most popular, named
later as the Law of International Organizations, that I had the chance to teach
until 1993, by which date, I left Komotini for the University of Macedonia in
Thessaloniki.
Based on this conception, new legal materials were published, exclusively
16
for the school, the first cases and materials, a new scientific creation which
flourished in the years to come and underlined the autonomous character of
the School.
In December 1974, Evrigenis was appointed as deputy Minister of Educa‐
tion and left the DUTH. The new President came from the Polytechnic School
in Xanthi, where all the decisions took place.
Evrigenis left his indelible identity mark in the history of the Law School!
He offered plenty of his charismatic personality to his peers and students. He
believed that the new Law Faculty could play an important role in the country,
in Europe and in the world.
Evrigenis was a charismatic academic professor, a wise man with the mind
of a youngster, always ahead of his time. An intellectual with a smile of sor‐
row. A man who loved technology, coupled with legal thinking. A personality
who served his country, Europe and the United Nations from different posts,
the man who since 1961 had tried to bring Greece into the European Commu‐
nities. In all the posts he served, he left a memorable legacy.
Evrigenis as a Deputy Minister of Education worked for a few months only
and resigned because he disagreed in a matter of principal. He was waiting for
the approval of his resignation for more than two months in 1975. The designa‐
tion was accompanied with a marvelous text on Democracy and Democratic
State, which was never published, still hidden in the files of his closest friends.
Evrigenis was also a pivotal personality as the founder of the Center of In‐
ternational and European Economic Law, in 1976, a scientific research Center
to provide assistance to the Greek Ministry of National Economy, responsible
for the integration of Greece to the European Communities.
Evrigenis was also a member of the European Parliament 1984‐1986, his ul‐
timate contribution being the “Report on the Fascism and Racism in Europe”, a
political and scientific work. This was piece of work of a citizen who never
covered behind the privilege of a theoretical thinker. With this report, he mate‐
rialized the notion of legal and moral sharing in the realms of political respon‐
sibility.
Evrigenis as the Greek judge at the European Court of Human Rights be‐
came famous for his dissenting opinion in the case of Ireland vs. the United
Kingdom on the violation of article 3 of the European Convention on Human
Rights and the notion of torture. His dissenting opinion is still a reference on
the international bibliography. Contrary to the majority, Evrigenis was of the
opinion that the method of the “five techniques’’ was a torture, and not an act
of inhumane treatment, violating article 3 of the Convention.
Evrigenis was also a member at the Committee on the Elimination of Racial
Discrimination of the U.N. since 1982 and a member of the International Law
Institute. Above all Evrigenis was a homo universalis. To this unique personal‐
ity the Greek State entrusted the creation of DUTH and the third Law Faculty,
soon after the restoration of democracy, in September 1974.
Thirty two years after his death, we still honor him, for his unique scientific
work and contribution, for his books and theories, his democratic spirit, his
devotion to human rights his academic high morality, his kindness, his love to
17
his country, to his family and his students.
And it is important that there are many young scientists who never had the
chance to listen to him, to know him, to meet him, yet they mention his name
with great respect. These students had the idea to publish a Yearbook on Inter‐
national and European Law under his name.
Dimitrios Evrigenis: A Wonderful Person
Anastasia Grammatikaki‐Alexiou
Emerita Professor, Aristotle University of Thessaloniki
During my student years, private international law was the class that I did
not want to miss. I did not know much on the subject back then. I was of
course impressed by the inherent international element but what attracted me
from the very beginning was the professor who taught it, Dimitrios Evrigenis.
Amid the environment of uninspired teaching methods characterizing the late
‘60s, here was a professor who captivated us by his sheer presence: He knew
how to use the Greek language perfectly and lively, how to generate questions
and discussions, how to explain to his students difficult legal concepts in a
vivid and elegant manner.
Unfortunately, his forced displacement by the Greek junta to a small town
of Evritania deprived us of a number of his lectures and also of the opportu‐
nity to have him as our examiner at our final exams. A few years later, I had
the honor of working next to him as his assistant and be present at his oral ex‐
ams. I then saw for myself how he helped with plenty of patience and friendli‐
ness the students he examined, so that they could relax and perform to the best
of their abilities. Although he kept an appropriate distance from students, his
polite manner and his true interest in them made his office a haven for them.
I did not seek the position of assistant to a professor. It was pure good luck
that brought me as a trainee attorney to the law office where Evrigenis prac‐
ticed with other eminent attorneys of Thessaloniki. I remember that a few days
after my traineeship started, he summoned me and handed me over a case file,
asking me to prepare the relevant lawsuit. I panicked! I had no idea how to
proceed. Back then our law school education included very little instruction on
the practical aspects of civil procedure and recent graduates were not at all
prepared to tackle the tasks of actual legal practice.
I spent several nights having nightmares and during the days I was agoniz‐
ing to draft the lawsuit in a manner that would not disappoint my professor
and trainer. I finally wrote the lawsuit as best as I could, gave it to Evrigenis
and anxiously waited for his comments. Looking back now I believe that law‐
suit was the culmination of one of the best and most thorough researches in
my career as an attorney, but the text was clearly the imperfect work of a fledg‐
ling. Nevertheless, Evrigenis the teacher knew how to point out the weak‐
nesses of my draft and how to praise its good elements in order to boost my
self‐confidence. Sometime later he offered me a position as his assistant at the
law school. Although a university career was not in my plans, I decided that I
simply could not refuse the honor.
In the summer of 1973 I was seriously injured in an accident at sea and was
taken to Ippokrateio Hospital. I spent the first night after surgery in a busy
ward packed with patients. That night was an ordeal: Not only was I in shock,
but I could get no sleep or rest as there was a lot of groaning and shouting
from other patients. The next morning my parents wanted to transfer me to a
19
private hospital that would offer better conditions, but the doctors refused to
discharge me. Somebody in my family called the law school to let them know
why I was absent.
Evrigenis arrived at the hospital in no time. He spoke to his colleague, the
professor and chief of surgery, and I was immediately transferred to a quiet
double room, which had previously not been made available to me, although I
was entitled to it on account of my social security. In addition, at his own ini‐
tiative he ensured that that the one‐month stay at the hospital was made “hu‐
man” both for me and my family, with an informal laissez‐passer even at times
beyond visiting hours. Anyone with a Greek public hospital experience can
understand how important Evrigenis intervention was.
Evrigenis had a very special trait: He was able to transfix his audience just
by his presence. I remember that when I was a lecturer and participated in the
academic board meetings at the law school, every time he raised his hand to
speak, silence fell in the room, silencing even people chatting amongst them‐
selves. Evrigenis had a reputation for fairness and his words carried a lot of
gravitas, power and influence.
In the summer of 1985 I participated to the Hague Conference preparing the
convention on the law applicable to trusts as member of the Greek delegation.
Evrigenis came to The Hague a couple of days before the end of the session.
After the signing of the final text, the Queen of the Netherlands invited confer‐
ence participants at a very formal gala dinner that would take place in the
most prestigious hotel in the city. The dress code requirements were clear:
Long, evening dresses for women, tuxedoes for men. I remember many par‐
ticipants rushing the day before the gala dinner to rent tuxedos.
I had a simple cocktail dress with me, which was short and there was no
way for me to rent another. As a result, I decided that I had no choice but to
decline attending the event. However, my professor was of different mind. He
told me that he did not intend to wear a tuxedo and that he would be happy to
escort me to the dinner nevertheless. That evening, arriving at the gala venue,
me in my short dress and Evrigenis in his dark suit and silk knit tie, which was
his “trade mark”, I wondered whether we would be turned away at the en‐
trance. My escort’s aplomb did not allow for any challenge to our dress
choices. As I found out once inside the gala room, we were the only disobedi‐
ent participants –and I think us both enjoyed being “naughty”.
Back in The Hague again, in 1976, when Greece brought against Turkey its
dispute on the continental shelf, Evrigenis was among the team of experts of
the Greek side and I happened to be there as a doctoral scholar of the Hague
Academy of International Law. It was a very stressful time for the experts and
they could use all the help they could get, so I was asked to do some last‐
minute research at the vast library of the Peace Palace. That role entitled me to
be present in meetings at the Greek Embassy.
Evrigenis was in pain, as he suffered from excessive urea at the time and his
feet were terribly swollen. He had to borrow the shoes of Krateros Ioannou, the
then rising star of international law, who had also come on his own initiative
to offer his services to the team. Notwithstanding his pain, Evrigenis was not
20
only the most focused and hard‐working member of the team. He was also the
person who worked most seriously and effectively, and who continued con‐
sidering different options even when other members of the team were looking
forward to an evening out to get a much‐needed break.
Although the numerous occupations and obligations of Evrigenis after the
fall of the dictatorship resulted in him being often absent from the Aristotle
University, the years I worked on his side taught me a lot. We had many dis‐
cussions on conflict of laws issues and his remarks were always valuable.
I admired his perspicacity towards anything, whether an idea or a practice.
He was the first among Greek law academics to foresee the importance and po‐
tential of computers in legal research and with the help of T. Passas, who was
also one of his assistants at the law school, began the creation of a database
comprising the Greek case law on conflicts. He introduced the optional, Eng‐
lish legal terminology course for law students. He fathered the Center on In‐
ternational and European Economic Law. I also remember the innovative
handouts we carefully prepared according to his instructions for each class of
private international law.
His elegant writing style was also one of a kind. The “Greek Celebratory
Speech” he delivered on the 26th October 1977 at the Aula Magna of the Aris‐
totle University for the commemoration of the 26th and 28th October (libera‐
tion of Thessaloniki from the Ottomans in 1912 and Declaration of War in
1940), remains a model of speech‐writing. It was unique not only in terms of
the ideas it expressed and its departure from tradition, but also its unparalleled
style. At this point, I would like to cite the end of that speech (although I am
sure my English translation will be inadequate). It still sounds up‐to‐date 40
years later.
“At least during our secret moments of truth, each and every one of us
counts the distance separating us from the contemporary international van‐
guard in our educational work and research activity. Although we cannot
cease courageously pointing out the responsibility of the State, as is our duty,
nevertheless we as the Greek academic community must bravely assume our
own responsibility. Chronic problems and new hazards stand in the way of
Greeks. We will confront them only if we can successfully maximize our na‐
tional efficiency, if we can draw upon the sources of our national strength.
The battle for the future takes place on a field that was always known to us
and which must become friendly to our national stride, the field of intellect.
We need a leap in our thinking, a spiritual revolution, a New Greek Enlight‐
enment. These shall renew and anneal our national metal. These will afford us
the strength and the conditions to bring ever closer the vision of modern
Greece: To show on our breasts, as the contemporary poet says, that Greece is
worthy of its history and its people, that “there is another Greece, the second in
this world”.
For sixteen years I had the privilege of knowing Evrigenis as his colleague
at the law firm and as his assistant and later lecturer at the law school. The
memories from that period are many. I admired him for his bright mind, his
vast knowledge, his ceaseless processing of ideas, his ethical standards, his
21
teaching skills, and his civility. The Department of International Studies of the
Law School functioned flawlessly under his guidance and, even after Evrigenis
was gone, it remained the friendliest towards students‐‐without being overly
lenient‐‐according to the standards he had set. I learned a lot from him. Thirty
years after his loss and with the greatest part of my professional life having
elapsed, I often catch myself wondering how he would have solved a given le‐
gal or educational problem. We Lost Dimitrios Evrigenis too soon but the heri‐
tage he left behind remains very significant, at least for us who were lucky
enough to know him.
The Jurist as Social Scientist
Ioannis D. Evrigenis
Professor, Department of Political Science, Tufts University
Having noted the mandate issued by the European Parliament for the estab‐
lishment of a Committee to examine the rise of fascism and racism in Europe
and the various attempts by the Group of the European Right to block it, Rap‐
porteur Dimitrios Evrigenis began the substantive part of his Report on the
Findings of the Inquiry of the Committee of Inquiry into the Rise of Fascism and Ra‐
cism in Europe (henceforth ʺReportʺ) by noting that ʺ[i]t would be hard to exag‐
gerate the importance of this inquiryʺ (1.3 §25)1.
The intervening years have proven his judgment correct. Although there is
much to say about the development of fascism and racism in Europe since the
composition and publication of the Report, here I wish to consider the way in
which Evrigenis approached his mandate, by focusing on his estimation of the
task that lay before him, the limitations imposed by its nature and scope, and
the ways in which he interpreted and presented the data that the Committee
had collected.
The Rapporteur, Dimitrios Evrigenis, during a Committee meeting at the European
Parliament, in Brussels, in January 1985. © Communautés Européennes 1985.
https://multimedia.europarl.europa.eu/en/evrigenis‐Demetrios_t
Springing from the midst of European institutions designed to prevent the
recurrence of the tragedy of the first half of the twentieth century, the Commit‐
tee considered its mandate a part of the ʺdemocratic duties of spreading
The Report is available at https://publications.europa.eu/en/publication‐detail/‐/publication/
557b5ea7‐34f9‐4399‐aa0d‐14f19aab1d90/language‐en
1
23
knowledge and maintaining vigilanceʺ (1.3 §25 a). Evrigenis noted immedi‐
ately that some of the measures that were intended to take Europe in a differ‐
ent direction also bore dangers. As Europe became more open and enticing, it
also became a destination for people of diverse ethnic and cultural back‐
grounds, from many other parts of the world, many of them vulnerable. Evri‐
genis argued that:
[w]hen the stresses of an economic and social crisis accompany the friction that in‐
evitably results from the shaking down together of people differing in their ethnic ori‐
gins, culture and religious beliefs which may, indeed, by their content, tradition or par‐
ticular political orientation be directly opposed, there is always a danger that a climate
of intolerance or xenophobia may arise and occasionally prove alarming in its manifes‐
tations (1.3 §25 b).
The Committeeʹs work and Report were thus a call to Europe, to ʺface this
challenge frankly and clear‐sightedly, with the kind of political integrity and
moral courage which have marked the best hours of its historyʺ (1.3 §25 b).
In a crucial section of the Report (1.4), Evrigenis listed the primary difficul‐
ties he and the Committee faced. The first of these came in the form of the very
subject of the Report, as fascism and racism are ʺnot easy to define or circum‐
scribeʺ (1.4 §26 a). On the one hand, there are difficulties stemming from the
breadth of sociopolitical phenomena that these terms are used to describe. On
the other hand, the terms are highly polemical and even the most sober ac‐
count will be subject to propaganda.
Evrigenis identified a further difficulty in the ʺinterdependence between
fascism and racismʺ (1.4 §26 b). Yet another challenge was to study ongoing,
complex sociopolitical phenomena involving actual human beings with spe‐
cific historical backgrounds, and to do so without any illusions that such a
study could be comprehensive.
Evrigenis admitted that he ʺcontented himself with an honest attempt to
take into account, whenever possible, the historical and political context of the
phenomena under consideration,ʺ while remaining ʺall too conscious of the
limitations of his achievementʺ (1.4 §26 c). Time and space made matters even
more complex. While it was necessary to assess the overall situation in Europe,
it was impossible to study all countries and situations, especially in the short
amount of time that was allotted to the inquiry.
In dealing with the definitions of fascism and racism, the Committee invited
input from noted experts, and received a wide range of responses. Even a cur‐
sory examination of accounts of the rise of Nazism would reveal a range of di‐
vergent explanations and a considerable amount of disagreement about the
relative significance of one variable or another, even today2. Notable in this re‐
gard is the Committeeʹs rationale for setting economic considerations aside,
without dismissing them. Evrigenis noted that some of the economic explana‐
See, e.g., Satyanath, S. et al. ʺBowling for Fascism: Social Capital and the Rise of the Nazi
Party,ʺ Journal of Political Economy 125(2) (2017), pp. 478‐526, Galofré‐Vilà, G. et al. ʺAusterity
and the Rise of the Nazi Party,ʺ National Bureau of Economic Research Working Paper Series,
no. 24106 (December 2017), http://www.nber.org/papers/w24106, accessed: 23 April 2018.
2
24
tions that had been proposed (e.g., the role of big businesses) had to be recon‐
sidered in light of new data (e.g., the role of small businesses and the middle
classes).
He also pointed to the obvious differences in the economic conditions of It‐
aly and Germany in the 1920s, their different attitudes towards commerce.
Crucially, and succinctly, he noted that even if it were easy to agree on a
largely economic explanation, it would be difficult to ʺsituate this theory in the
economic and social context of todayʺ (1.5 §32). Some of the same considera‐
tions meant that the cult of the leader was less important than it had been in
the pre‐World War II cases.
The complex and varied landscape of European fascism in the 1980s thus
yielded the following definition of fascism:
“a nationalistic attitude essentially hostile to the principles of democracy, to the rule
of law and to the fundamental rights and freedoms as well as the irrational exaltation
of a particular community, in relation to which people outside it are systematically ex‐
cluded and discriminated against. This attitude permeates the ideology, thinking, the
activity and the aims of its adherents (1.5 § 35).”
Things were a little easier in the case of racism, since there were a number
of existing definitions by international bodies that could be used as a starting
point. Experts provided some additional considerations (e.g., institutionalized
forms of racism and various assertions of pseudoscientific racism). Crucial
among those was the emphasis placed on the role that Europeʹs colonial past
has played in the rise of racism, through i) European perceptions of the rest of
the world, ii) the conflicts caused by colonization and de‐colonization, and iii)
the unavoidable flows of migration that emerge between colonizer and colo‐
nies (§42).
For the purposes of the Report, the definitions provided by international
bodies thus served as the starting point, to be supplemented by flagrant exam‐
ples of racist regimes, but also by categories of racist behavior ranging from in‐
stitutionalized racism, to group racism, to everyday ʺcases of discrimination on
racial, ethnic, or religious groundsʺ (§44). With appropriate caution, Evrigenis
proceeded to the link between fascism and racism, noting that while it exists, it
is nevertheless ʺnot an organic oneʺ (§45). The differences between Italy and
Germany prior to and during World War II are once again instructive in this
regard, but there are other reasons for thinking about the two phenomena both
separately and in conjunction.
In the preamble to the section of the Report devoted to country sketches,
Evrigenis returned anew to the issue of the scope, noting that the range of
relevant material was staggering and, paradoxically, that the relevant informa‐
tion was sometimes hard to find. On the one hand, there was an abundance of
both group and party literature, as well as information collected by state agen‐
cies and non‐governmental or international organizations.
On the other hand, the nature and status of the groups in question meant
that many of their activities and views were not documented. Even at that
time, the relevant literature was voluminous. These limitations were exacer‐
bated by the relative powerlessness of the Committee, which did not have the
25
legal standing to summon witnesses or demand documents and evidence. As
Evrigenis put it aptly, a committee of inquiry ʺhas no powers to call for evi‐
dence it might wish to examine, it can merely ask for itʺ (§§ 48‐50).
The length of the country sketches that followed varied, depending on the
material to be covered (itself a reflection of the relative prevalence or absence
of fascism and racism in any particular country). It began with European
Community countries, before turning to consider other European countries. If,
in some respects, these sketches appear too brief to do justice to the issues they
purport to cover, they nevertheless live up to the standards that Evrigenis set
for himself. They succeed in conveying a snapshot of the situation without
burdening the reader with commentary.
Particularly striking today are the paragraphs devoted to Eastern Europe,
which at the time was completely closed to an inquiry of this sort. If the com‐
bination of scant evidence with anecdotal information taken from personal ac‐
counts seemed a dubious basis for the extraction of any meaningful conclu‐
sions, and if the treatment of certain countries was cursory and very restricted,
Evrigenisʹs judgments have been confirmed by the evidence that has come to
light since.
The same standards are clear in the summaries that follow, in which what
comes across is the recognition of the limitations inherent in this sort of work.
Even when the temptation to impose order upon the subject is great, Evrigenis
resists it and reminds the reader of the need to be cautious. His own assess‐
ment of the evidence proves him an astute observer: he notes, for instance, that
even though the electoral successes of far right parties had been quite limited
at the time, they had nevertheless exerted ʺa certain influence on the attitudes
and campaigns of other political organizationsʺ (§ 203). At the same time, the
interim has also shown that the Report underestimated the electoral prospects
of right‐wing extremism, which it deemed as appearing limited.
Perhaps the most challenging aspects of social science can be located in at‐
tempts to interpret available evidence and to generate predictions based upon
it. The Reportʹs persistent reminders of the limitations of the Committee of In‐
quiry, the Rapporteur, and the evidence might lead the reader to expect that
there would be little, if anything, to say about the causes of these complex
phenomena and recommendations about how to address them. This expecta‐
tion is further reinforced by § 210, in which Evrigenis writes:
“Of necessity, the above summary of the situation anticipated an investigation of its
causes. That investigation, in any event, can only be of a general nature. A scientifically
sound causal approach would have to explain a set of strictly‐defined facts, events and
phenomena, whereas our investigation has dealt with large‐scale, ill‐defined assem‐
blies of facts and conditions. It has, on the other hand, enabled us to present a broad
panorama into whose framework it will be easier, we hope, to insert case studies and
specific investigations or explanations.”
It is here, nevertheless, that the Report proves strongest and most interest‐
ing. Synthesizing insights from the experts interviewed and the relevant litera‐
ture, Evrigenis noted the ideological and psychological dimensions of the
problem, as well as the extent to which the existence of right‐wing extremist
26
forces on the political spectrum offered opportunities to other parties. Regard‐
ing the latter, in particular, he pointed to the dangers inherent in the increasing
normalization of topics and views that were previously off‐limits.
Similarly, Evrigenisʹs analysis of racism focused on the crucial role of migra‐
tion and the impact that it had on societies ʺin the grip of a four‐fold crisisʺ: ur‐
ban, educational, cultural, and economic (§ 212). Coupled with historical and
international factors3, the upheaval brought about by internal population
growth and movement, the expansion of cities and of educational and cultural
institutions, and various economic challenges made the assimilation of refu‐
gees especially difficult, by giving xenophobia both a peculiar twist and a set
of new targets. Evrigenis argued that fascism and racism:
“…must therefore be viewed from several, complementary aspects: as a threat (as‐
sociated with the ʹgeneration effect,ʹ i.e. the waning of historical memory) to the tradi‐
tional forms of toleration as Spinoza defined it in 1670: ʹMen should be given freedom
to judge and they must be governed in such manner that when openly professing di‐
verse and contrary opinions they yet live in concordʹ as a reaction to feelings of insecu‐
rity and a perception of economic, demographic and cultural decline (a social with‐
drawal which can only further aggravate the [marginalization] already occurring); as a
reaction to the harshest manifestations of the crisis; as a special problem concerning
isolated social groups and the microcultures which they generate. How much weight
should be given to each of these factors depends on the precise configuration in each
particular situation with which this report is concerned (§ 217).”
As I indicated earlier, Evrigenis had from the outset expressed some skepti‐
cism regarding economic explanations of the rise of fascism. In turning to think
about the connection between economic conditions and the rise of extremism
more broadly, he notes that while there is an undeniable link between unem‐
ployment and votes for the Nazis, a comparison with other cases
shows that a certain economic threshold must be crossed and that other fac‐
tors, such as ʺorganized groups, international environment, political culture
and history, cultural and institutional crisisʺ must also be operative (§ 219).
Noting that fascism and racism were undeniably on the rise, Evrigenis
turned to consider action taken to combat fascism and racism by international,
European, European Community, and national bodies. Having served on
United Nations Committee on the Elimination of Racial Discrimination, Evri‐
genis was well‐placed to assess the UNʹs role, which he found frustrating. He
noted a ʺbasic contradictionʺ in the UNʹs attitude towards totalitarian regimes:
“…on the one hand a flood of texts in which it solemnly proclaims its attachment to
fundamental freedoms including those inherent in a democratic society, and on the
other its failure to act and be effective in the face of constant flagrant violations of
those freedoms by a large number of its member states. There is of course nothing new
about this statement. But to repeat it in an analysis made by the European Parliament
is a basic duty of political candour (§ 242).”
Things are better on the European level, where the European Convention on
See, e.g., Greenhill, K. M. Weapons of Mass Migration (Ithaca: Cornell University Press,
2010).
3
27
Human Rights was supported by institutions and enforcement mechanisms
that go beyond wishful thinking. Having also served on the European Court of
Human Rights, Evrigenis was well placed to contrast the two settings.
Where the European Community was concerned, Evrigenis noted that its
stance towards fascism and racism was shaped by its commitment to democ‐
racy as a fundamental prerequisite for membership. That became clear in the
ECʹs attitude towards Greece and Turkey, and was formalized in the the
Commissionʹs opinion on the accession of Greece (and, subsequently, those of
Spain and Portugal), and have since been entrenched in the Lisbon Treaty (see
Articles 2, 9‐12, 49).
Evrigenis also noted, however, that the Communityʹs response to fascism
and racism was lacking. Then as now, and despite the enlargement of the
scope of EU regulations and their effects at the local level, national policies var‐
ied widely. Evrigenis did note, however, that there was an overall increase in
the involvement of legislatures, a tendency that has only continued to expand
since (§ 272).
In a couple of masterful paragraphs (273‐274), Evrigenis underscored the
crucial roles that the law and education have to play in preventing racial dis‐
crimination. In the first, he described the difficult balancing act that the law
must play in democratic societies, in checking the rise of fascism and racism
without harming civil liberties and democratic rights. He noted that figuring
out the precise contours of the ʺsuppressive function of the law [...] hinges on
finding a delicate balance between safeguarding fundamental freedoms and
measures to cope with behavior that takes advantage of those freedoms in or‐
der to destroy themʺ (§ 273).
Where education in general and civic education in particular is concerned,
Evrigenis pointed to Montesquieu, via Chevenèment, who had noted that the
preservation of the government rests on the love that a good system of educa‐
tion cultivates among its citizens. Democratic societies such as the contempo‐
rary European ones thus rely on systems of education that rest on the princi‐
ples of ʺrespect for human dignity, human rights and fundamental freedomsʺ
(§274).
Naturally, formal education is supplemented by public discourse and in‐
formation disseminated by the media. Although this set of considerations
complicates the picture even further, it is nevertheless important to bear in
mind, as the ways in which different cultures and races are portrayed help
shape perceptions of reality. If anything, the advent of the internet and the
spread of social media have made this matter even more serious and pressing.
28
Dimitrios Evrigenis presenting the findings of the Committee of Inquiry into the Rise
of Fascism and Racism in Europe at a press conference. Photo: Guido Naets.
© Communautés Européennes 1985. Source:
https://multimedia.europarl.europa.eu/en/evrigenis‐Demetrios_t
Recommendations stemming from inquiries such as the European Parlia‐
mentʹs into the rise of fascism and racism are more often than not vague and
idealistic. Section 4.2 contains a few of those, but overall it forms a coherent set
of suggestions for specific policies and initiatives, organized in a logical man‐
ner. Some progress along the lines prescribed therein has been made, but many
areas remain unaddressed. Some cannot be addressed. For instance, while one
must agree with Evrigenis that where human rights and democratic values are
concerned, ʺ[t]here is no room for political expediencyʺ (§ 364), one must also
acknowledge that political expediency will not disappear and cannot be ig‐
nored, for reasons that Evrigenis articulated very well when he wrote that the
rise of the phenomena under study:
“…is associated with a global social malaise, the elements of which are difficult to
identify and assess and in any case may vary from context to context. They comprise
the timehonoured distrust of strangers, fear of the future combined with a self‐
defensive reflex which together often lead to a withdrawal symptom, prejudices aris‐
ing from the way national and international news is presented, and occasionally a spi‐
ral of violence in which aggression and defence are almost inextricably intertwined.
All these elements can be found in crisis‐ridden urban centers where physical, eco‐
nomic and social conditions gravely militate against dialogue and tolerance (§ 355).”
Stereotypes less dangerous than the ones that prompted the Report have it
that the world of the law is ordered and sensible, and marked by signposts that
make it navigable. This neat picture is of course a fantasy that ignores the
countless complexities that are involved in attempts to establish legal bounda‐
29
ries and orders, and the negotiation that shapes even the minutest of legislative
processes. On some level, then, the thoughtful jurist is not surprised by the
messiness of the social and political world, even if he may choose to tune them
out from time to time, as he practices his craft.
As a specialist in private international law, Evrigenis was certainly aware of
the difficulties, complexities, and uncertainties surrounding even the best‐
established legal frameworks. Even so, the complications involved in survey‐
ing vast social phenomena over substantial periods of time and across varied
landscapes and settings must have appeared daunting. They were doubtless
made all the worse by the frustration and disappointment that anyone who ca‐
res about respect for individual dignity, human rights, and democratic values
must feel in the face of this evidence.
That this work was to be done under the auspices of an organization that is
often viewed as powerless and aloof only made it more likely that the inquiry
would be a symbolic, rhetorical exercise. Against these factors, Evrigenisʹs nu‐
merous qualifiers and cautious approach reflects a keen awareness of the mag‐
nitude and significance of the issues and of the hurdles that lie ahead. With the
benefit of over thirty yearsʹ worth of hindsight, Evrigenisʹs Report reads not
simply as an accurate reflection of the world it sought to describe, but also as a
prescient analysis of where that world was headed, and a sobering call to vigi‐
lance.
L’Importance du « Rapport D’ Evrigenis pour
le Racisme et le Fascisme » et la Résolution Relative
du Parlement Européen (1986)
Antonis Manitakis
Emeritus Professor, Aristotle University of Thessaloniki
Si je devais évaluer la personnalité des professeurs de la faculté de Droit de
Salonique qui ont enseigné à celle‐ci pendant la période d’après‐guerre, je clas‐
serais sans doute Evrigenis parmi les meilleurs: comme la personnalité scienti‐
fique la plus importante, la plus éclairée, la plus cultivée et aussi la plus distin‐
guée et renommée au niveau national et européen. Cette constatation coïncide,
malheureusement, avec une autre, triste et honteuse : Evrigenis il est la per‐
sonnalité la plus ignorée et méconnue par l’université et la ville, en tenant
compte sa contribution énorme et l’ampleur de sa radiation nationale et euro‐
péenne.
Qui d’autre professeur d’université a exercé simultanément et avec succès
des fonctions de député européen, de juge au Cour de justice des Droits de
l’Homme et de doyen à la faculté de Droit? Qui d’autre a réussi combiner
d’une manière si discrète, modeste et en même temps harmonieuse et produc‐
tive des fonctions politiques (par exemple du député d’une partie) avec des
fonctions qui découlent et honorent le statut de professeur d’université et celui
du juriste.
Je pourrais même mentionner ses opinions minoritaires sur les décisions du
Cour de justice des Droits de l’Homme ou la manière dont il dirigeait les ré‐
unions de la faculté et les évènements qu’il a organisés en tant que Doyen de la
Faculté. Je pourrais encore me référer à son rôle pendant les négociations et la
procédure d’adhésion de la Grèce aux Communautés Européens, en tant que
responsable de la Commission des juristes pour la préparation de l’adhésion.
Et finalement, à son exile par la junte militaire en 1967 à cause de sa participa‐
tion à la fondation de l’organisation de résistance «la Défense Démocratique».
On pourrait citer encore d’autres tâches pareils que sa modestie et discrétion,
notamment l’esprit scientifique et le respect de ses qualités, ne lui permettaient
pas les faire paraître et les mettre en valeur en public.
Personnellement, je lui dois deux faveurs qui ont déterminé d’une manière
indirecte ma biographie. La première : grâce à lui je suis parti à l’étranger et j’ai
poursuivîmes études au niveau du master et du doctorat après la junte mili‐
taire. Après le licenciement de Manesis, Il a accepté d’être le superviseur de ma
thèse, qui portait sur un sujet de droit international privé, comme «la protec‐
tion constitutionnelle et législative des investissements étrangers en Grèce».
Ayant l’affirmation écrite qu’il m’a donné, j’ai pu ajourner
l’accomplissement de mes obligations militaires; ayant un tel sujet j’ai eu la
permission par ailleurs de voyager à l’étranger pour effectuer une recherche
documentaire, avec l’intention de ne pas, revenir. Deuxièmement, en 1989, le
professeur Evrigenis m’aidé tant que président de la Comité d’embauche de
31
personnel temporaire des juristes hellénophones ‐constitué dans le but de sur‐
veiller la traduction en grec de l’acquis européen et son intégration au droit
grec‐ d’être embauché par les services de CEE. J’ai pu ainsi travaillé pendant
un an et demi au service Juridique du Conseil des Ministres. Il m’a ouvert la
route pour l’Europe et grâce à lui j’ai connu la culture juridique européenne et
la façon dont fonctionnent les institutions européennes.
Aujourd’hui je rembourse cette dette, inavouée jusqu’à présent, à l’Institut
qu’il a fondé. Pour cette raison je remercie le Président et Président du Cour de
Justice, collègue à l’université Vassilis Skouris, ainsi que le Directeur Vassilis
Christianos de m’avoir donné l’occasion d’acquitter en public une dette que j’ai
portée depuis des années. Je les remercie enfin pour l’honneur qui m’ont offert
de me compter parmi les orateurs voire premier.
La personnalité polyvalente d’Evrigenis, de calibre européen et des qualités
indiqués ci‐dessus, se reflète au rapport de la Commission de d’enquête pour
l’ascension du fascisme et du racisme à l’Europe qu’il a rédigé en décembre
1985 en tant que rapporteur de la Commission. Ce rapport a été la base d’une
résolution relative du parlement européen, adoptée quelques jours après sa
mort le 16 janvier 1986. Il y a trente ans exactement. A l’introduction du rap‐
port, le Président du Parlement Européen à ce moment‐là souligne que «outre
la résolution que lui accompagne et qu’elle était approuvée par une majorité
écrasante de l’Assemblée, le rapport contient des analyses, des recommanda‐
tions et des propositions diverses qu’ils peuvent promouvoir la démocratie et
l’humanisme, les fondements de notre civilisation européenne et de ce projet
européen».
Ce rapport ‐ là constitue une source d’inspiration mais aussi un guide pour
la lutte contre le fascisme et le racisme, même aujourd’hui, qui montre la pen‐
sée et des propositions diachroniques et actualisées d’Evrigenis. En lisant le
rapport on peut distinguer dès les premières lignes son style linguistique, et
surtout des sens précis et approfondis ; encore plus, la maintenance d’un équi‐
libre nécessaire, de l’objectivité des analyses et la prévention des confronta‐
tions idéologiques. Il écrit au début : L’équilibre imposé par la nécessite de
l’objectivité n’est pas facile et le rapporteur est conscient de ces difficultés. En
tout cas, il a essayé de ne pas donner à son rapport le style d’un acte
d’accusation, chose qui, peut‐être, correspondait à d’autres contextes, mais pas
au rapport de la Commission d’enquête.
Toutefois, l’objectivité de l’évaluation des données s’ajoute au souci du rap‐
porteur de s’assurer que le rapport rencontrera le plus fort consentement pos‐
sible au sein de la Commission, mais aussi au Parlement Européen entier. Le
rapporteur connaît bien que le texte qu’il rédige n’est pas une bannière idéolo‐
gique, ni un manifeste politique mais c’est un accord politique, un texte politi‐
que d’action, un texte contre le fascisme et racisme au nom de la démocratie,
de la dignité humaine, du respect des droits qui sont les fondements de la civi‐
lisation européenne. Et pour cela ce texte est rédigé.
Par la suite, il analyse le phénomène du fascisme en se basant sur des étu‐
des des auteurs, tout en évitant le définir exhaustivement parce qu’il aperçoit
le fascisme comme un concept de genre qu’il inclure des termes comme
32
l’extrémité, le nationalisme de droite, le néonazisme et le néofascisme. Selon
Evrigenis, la caractéristique fondamentale de tous ceux‐ci, donc aussi du fas‐
cisme, «consiste en une attitude nationaliste qui s’opposent aux principes de la
démocratie, l’antériorité de la justice ainsi que les droits et libertés fondamen‐
tales ; de même en une exaltation déraisonnable d’une communauté qui est uti‐
lisée comme point de référence pour des discriminations systématiques au dé‐
triment des autres».
En ce qui concerne le racisme, Evrigenis s’est appuyé sur la Déclaration
d’Unesco sur la race et les préjugés raciaux, ainsi que sur d’autres textes inter‐
nationaux afin de souligner «que le racisme consiste en croyances et actes anti‐
sociaux, fondés sur l’erreur qu’il y a des raisons biologiques qui justifient et
supportent les discriminations entre les groupes».
Ensuite, la Commission «Evrigenis» décrit dans son rapport la situation qui
prédomine dans chaque pays et l’apparition des groupes politiques et des
comportements fascistes et racistes en se basant sur des données détaillés; elle
analyse les causes politiques, financières, historiques, sociales qui justifient
l’émersion des tels phénomènes et effectue des évaluations et des suggestions.
Cependant, l’intérêt du rapport d’Evrigenis n’est pas tant l’analyse théoréti‐
que et la description du phénomène ou le repérage des causes pour son appari‐
tion, que les actions qu’il propose. Le texte n’est pas ni théorétique ni juridique.
Il ne se perd pas dans des analyses et interprétations juridiques ni il propose
des mesures au niveau européen.
En tant que texte politique, au sens d’élaboration d’une politique ou des po‐
litiques européennes pour la lutte conte le racisme et le fascisme, le rapport et
la résolution du Parlement Européen, proposent des actions au niveau politi‐
que, éducatif, informatif et communicatif, qui les rendent lus intéressant. Je fe‐
rai une mention brève sur ce sujet, avant de terminer avec les conclusions du
rapport. Quatre ans avant la chute du mur de Berlin et des murs dictatoriaux
du stalinisme à l’Europe, Evrigenis se réfère aux intellectuels antistaliniens de
l’Europe de l’Est en remarquant fort justement «que le plus les voix ont été dé‐
couvertes au‐dessous des ruines de la période stalinienne, comme Solzenitchin,
le plus l’intellectuel antifasciste se transforme à un intellectuel antitotalitaire et
ça c’est indéniablement l’acquisition la plus positive de l’aventure de la pensée
d’après‐guerre», et il aboutit «la lutte pour la dignité humaine est indivisible,
ignorant les étiquettes politiques, religieuses, sociales, nationales, elle est me‐
née sur tous les niveaux et tous les fronts, aussi les proches que les plus éloi‐
gnés; pendant cette lutte la responsabilité personnelle de chacun de nous est
absolue, sans abri ou des prétextes, sans avoir la possibilité d’être modérée».
Ceci constitue l’enseignement moral, majeur, du rapport d’Evrigenis au ni‐
veau individuel. Au niveau politique, la clairvoyance du politicien intellectuel
conclut le rapport avec une suggestion exceptionnellement prévoyant et dia‐
chronique qui le rend contemporain ; je la cite telle quelle: «Les grandes dépla‐
cements des populations qui ont eu lieu les dernières décennies et l’intégration
consécutive des nouvelles communautés aux sociétés des divers pays euro‐
péennes, les changements culturels qui se déroulent aujourd’hui et surtout
l’ouverture agrandie envers la réalité internationale, tous ces facteurs préconi‐
33
sent la détermination d’une nouvelle politique globale qui vise à s’assurer
l’intégration des nouvelles minorités aux sociétés de l’Europe, ainsi que garan‐
tir le développement harmonieuse de ces sociétés dans un cadre de respect et
de sauvegarde des valeurs démocratiques».
Avec ces mots humanistes Evrigenis conclut son rapport au nom d’une Eu‐
rope démocratique unie qui s’eu labore des politique d’immigration commune.
Ce rapport constitue peut‐être la plus grande distinction et la pleine reconnais‐
sance de sa personnalité.
Je voudrais terminer mon rapport avec une considération finale concernant
mon évaluation initiale de la personnalité du professeur Evrigenis. Pour être
juste et rendre justice à tous les professeurs de la Faculté de Droit de Thessalo‐
nique de l’époque, je dois ajouter que d’autres professeurs, aussi, ont honoré
leur qualité de l’académicien ou niveau national et international. Des Grecs
Européens éclairés qu’ils ont contribués avec leur action et leur pensée à la
continuation de la e tradition européenne, démocratique et libérale. Nous de‐
vons nous les rappeler comme on a fait aujourd’hui avec Evrigenis, afin que
nous nous illuminions et illuminions aussi ceux que nous entourent.
Dimitrios Evrigenis, my Professor of
Private International Law
Εfi Kounougeri‐Manoledaki
Emerita Professor, Aristotle University of Thessaloniki
I first met Professor Dimitrios Evrigenis as a fourth‐year law student at the
University of Thessaloniki. Our acquaintance began, not in a lecture hall, as
one might expect, but on the lawn across from the Faculty of Law, with all of
us sitting on the grass! His subject was Private International Law, itself a rather
curious branch of jurisprudence, and Professor Evrigenis, enigmatic and a bit
of an original, used a variety of means to engage his students, including the lo‐
cus of his lectures.
His classes were, in fact, often held outside the university, perhaps in order
to inculcate in us the freedom that must pervade scientific thinking, or perhaps
to stress that jurisprudence is open‐minded and demands imagination and au‐
dacity of those who serve it. He may also have wished to reduce the distance
between teacher and students by having them sit beside him on the grass in
this way, or to demonstrate his confidence that they would not abuse this fa‐
miliarity, which he obviously considered essential to the teaching process.
As a teacher he was outstanding: equable, affable and a great communica‐
tor, but at the same time meticulous and demanding. In teaching us the diffi‐
cult concepts and the instruments of Private International Law, he proceeded
carefully and methodically, with the painstaking precision of a surgeon wield‐
ing a scalpel. And when reading us a text, for example a commentary on a ju‐
dicial decision, he would often raise those large eyes above his narrow glasses
and direct a searching glance at us, assuring himself that we had understood
what he was reading and why he was reading it to us. That look was some‐
thing we soon came to expect.
Professor Evrigenis would also frequently invite us to his home, with its
huge library and his violin somewhere to hand. His was a personality that ob‐
viously needed to unlock the secrets of the arts as well, and that was some‐
thing else we admired in him. My decision to do my doctorate with him was,
as I realized later, dictated solely by the esteem in which I held him and had
nothing to do with the content of the subject he taught, for after defending my
thesis I abandoned that field for another branch of the law entirely.
But I will never forget the meetings we had to discuss each newly‐
completed chapter. He was an outstanding scholar, and it showed in every
remark he made. Talking to him was a pure joy and an unceasing stimulation,
and I was always on the alert, if not in a state of nervous excitation, a condition
that his quiet, collected manner and tranquil coffee‐sipping did nothing to dis‐
pel. For I knew that he was biding his time, that at any moment he might toss
out an observation as incisive as it was unexpected, to which I would have to
respond. And of course he had the gift of being able to stir his students’ minds,
to arouse their critical capacity and stimulate creative thinking, and thus elicit
answers from them.
35
Private International Law being in the main a technical subject, with little
room for social sensitivities, personal convictions and individual worldviews,
his lectures revealed none of Professor Evrigenis’ political values. But his pas‐
sion for a united, peaceful and prosperous Europe was well known, and much
of his work and energy was devoted to the idea of European integration. The
Centre of International and European Economic Law, a research institute and
think tank dealing with all aspects of European law, was his creation: he
founded it, he was its first director, and it served as an inspiration to many of
his students, while the Hellenic Review of European Law, which it published,
was always ready to print articles by young jurists starting out in their profes‐
sion.
It was also well known that Professor Evrigenis was a political conservative.
Many were, therefore, taken by surprise when he was arrested by the govern‐
ment of the colonels and detained in Karpenissi as a member of the “Democ‐
ratic Defence” resistance movement. The establishment of the dictatorship had
apparently so shaken his inner world of values that he was galvanized into
taking action, which he continued after the fall of the junta and the restoration
of democracy.
He served as a non‐constituency Member of Parliament (State Deputy), a
Member of the European Parliament, a Deputy Minister for Education and Re‐
ligious Affairs, and of course a member of the European Court of Human
Rights, and was also the author of the Evrigenis Report on the findings of the
European Council’s Committee of Inquiry on Racism and Xenophobia, which
stands as a written monument to democracy and civic equality.
And so in the end my Professor of Private International Law spread his
wings to embrace all mankind. From the small world of the students to whom
he lectured at the university, Dimitrios Evrigenis moved on to a broader
sphere and channeled his knowledge and wisdom into helping other groups of
people: those classed as ‘others’, as ‘foreigners’, as ‘different’. Today, when –
tragically – the fires of xenophobia and racism are once again being stoked, the
prophetic voice of my teacher Dimitrios Evrigenis echoes in my ear and in the
ears of those who knew him well. Or at least as well as one can ever know a
man of such complexity.
Die Aktualität des Denkens von Dimitrios Evrigenis
Georgios Dellios
Professor, Faculty of Law, Aristotle University of Thessaloniki
Schmerzhaft haftet in meiner Erinnerung jener unbarmherzige Anruf in den
frühen Morgenstunden vor über 30 Jahren. Vier junge Anwälte, die aus uner‐
klärlichen Gründen des Schicksals unsere leiblichen Väter vor kurzer Zeit da‐
mals verloren hatten, wir waren danach geistige Adoptivkinder unseres gro‐
ßen Lehrers Evrigenis, der uns beflügelte und sich mit uns in einer Anwaltsso‐
zietät als gleichwertiger Sozius zusammenschloss. An jenen Morgen erfuhren
wir plötzlich, dass wir auch unseren geistigen Ziehvater verloren hatten.
Welchen Lauf hätte unser Leben genommen, wenn Evrigenis nicht so früh
aus dieser Welt gegangen wäre? Diese Frage verblasst aber, wenn sich die
noch größere Frage stellt, welchen Lauf unser stark geprüftes Land genommen
hätte, wenn er nicht vorzeitig aus dem Leben geschieden wäre. Er war ein gro‐
ßer griechischer Patriot, ein demokratischer Kämpfer, ein visionärer Politiker,
ein europäischer Humanist, ein Wächter der Ehre Griechenlands in Europa
und Europas in Griechenland, ein Internationalist, ein Verfechter der Men‐
schenrechte, ein von allen respektierter Richter an den höchsten internationa‐
len und europäischen Gerichtshöfen, ein charismatischer Lehrer, ein begeister‐
ter Redner und Autor, ein tief denkender humanistischer Philosoph, ein großer
Theoretiker der Rechtswissenschaft, gleichzeitig aber auch ein unermüdlich tä‐
tiger Berufsjurist, der zutreffend als „der ideale Bürger der offenen Gesell‐
schaft“ bezeichnet wird.
Um sich eine Antwort vorzustellen, genügt es, wenn man den „Schwanen‐
gesang“ von Evrigenis, seinen berühmten Bericht vom Dezember 1985 über
das „Wiederaufleben des Faschismus und Rassismus in Europa“ geistig auf
die heutige Lage projiziert. Die vorliegende Abhandlung konzentriert sich auf
den Bericht des Mannes, den das Europäische Parlament als den großen Grie‐
chen bezeichnete, dem der Schutz der Ehre Europas auferlegt wurde. In sei‐
nem Bericht hat Evrigenis keinerlei einseitige Darstellungen vorgenommen,
sondern, wie immer versucht, eine vollständige und ausgewogene Gegenüber‐
stellung vorzulegen.
In gewissen Kreisen hat eine xenophobe Einstellung einen problematischen
Charme, weil eine solche Einstellung zu leichte Antworte auf komplexe Prob‐
leme der Wirtschaftskrise, der Arbeitslosigkeit und der verbreiteten Migrati‐
onsströme findet. Hiervor warnt Evrigenis und vor dem Risiko, von grundlo‐
sen Fantasien auf das Terrain eines nicht selten gewalttätigen Rassismus un‐
bewusst auszurutschen. „Vor diesem Hintergrund“, berichtet er, „besteht das
gesellschaftliche Ziel des Rassismus darin, „bestehende Unterschiede als un‐
verletzlich erscheinen zu lassen, um auf diese Weise die bestehenden Bezie‐
hungen zwischen den verschiedenen Gruppen aufrechtzuerhalten“ (Nr. 37‐38,
206, 212). „Ein neues Gespenst“, betont er, „geht heute auf der politischen
37
Bühne Europas um: die Xenophobophilie.
Die Bezeichnung“, klärt er auf, „trifft nicht nur auf diejenigen zu, die zum
Anwachsen der Ausländerfeindlichkeit beitragen, um sie politisch auszunut‐
zen, sondern auch auf diejenigen, die das Auftauchen ausländerfeindlicher
Tendenzen zwar nicht billigen, aber dennoch versuchen, politischen Nutzen
daraus zu ziehen“ (Nr. 226). Heute würde niemand zutreffender die herr‐
schende Heuchelei auf der politischen Bühne Europas in Bezug auf das bren‐
nende Problem der Migration beschreiben.
Evrigenis bemerkt noch, „dass das Andauern und die allmähliche Legiti‐
mierung genereller ausländerfeindlicher Einstellungen die Gefahr einer
Schwächung des Engagements für die demokratische Kultur der europäischen
Gesellschaften beinhaltet und sogar zu einer offenen Infragestellung ihrer Wer‐
te führt“ (Nr. 47 d). Deswegen hebt er hervor, man könne nicht gleichzeitig ein
„wahrer Rassistʺ und ein „wahrer Demokratʺ sein (Nr. 47 c). Folglich könne
die Verantwortung der Bürger für den Schutz der Demokratie und somit die
Auseinandersetzung mit dem Rassismus angesichts staatlicher Schutzmaß‐
nahmen nicht gemindert werden und auch nicht ausschließlich auf die zustän‐
digen Träger staatlicher Macht übertragen werden.
Auf der anderen Seite versäumt Evrigenis nicht, das Phänomen des Rassis‐
mus und die Reaktionsarten voneinander abzugrenzen, wobei er bemerkt, eine
zu starke Verallgemeinerung schade der Analyse nur: „Weder die Achtung vor
den eigenen Traditionen und ihre Verteidigung noch die Durchsetzung der ei‐
genen natürlichen und legitimen Rechte (der Bürger eines Staates oder der
Mitglieder einer Gruppe) rechtfertigt den Vorwurf des Rassismus, der Rassen‐
diskriminierung oder des Fremdenhasses“ (Nr. 43). Und fügt er noch hinzu:
„Der Rückgriff auf den repressiven Teil des Rechts in diesem Kampf gegen po‐
litischen Extremismus und Rassismus, der eine im höchsten Maße politische
Aufgabe für unsere demokratische Gesellschaft darstellt und folglich die Form
einer intellektuellen Konfrontation zwischen demokratischen und antidemo‐
kratischen Kräften annimmt, darf nur eine „ultima ratioʺ sein… Die Definition
dieser Rolle beruht auf der Suche nach einem heiklen Gleichgewicht zwischen
der Bewahrung der Grundfreiheiten und der Wahl der Maßnahmen, die ange‐
sichts der Verhaltensweisen ergriffen werden, welche diese Freiheiten zu ih‐
rem Vorteil nutzen, um Maßnahmen zu treffen, die zur Zerstörung eben dieser
Freiheiten führen“ (Nr. 273).
Nach diesem heiklen Gleichgewicht sucht Evrigenis und schlägt eine euro‐
päische Politik der „zwischengemeinschaftlichen Beziehungen“ vor. Er meint
damit die Beziehungen zwischen den durch die verschiedenen Parameter ‐
Rasse, Kultur, Religion, Geschichte‐ gebildeten und als solche erkennbaren
Gemeinschaften. (Er erträumt somit eine Politik), die zum Ziel hätte zu koor‐
dinieren „auf der Grundlage kohärenter Grundsätze und Ziele das…, was üb‐
licherweise als „gemeinschaftliche Wanderpolitikʺ bezeichnet wird, so wie
Maßnahmen zur „Wahrung der Grundrechte und ‐freiheiten…“ (Nr. 306).
Bezeichnend ist schließlich die Art, wie Evrigenis in Anlehnung an die Wor‐
te von Michael Barry die Politik spezifiziert, die er sich auf dem Gebiet des an‐
geblichen „radikalen Schnittes“ zwischen den westlichen Gesellschaften und
38
dem Islam vorstellt, ein Gebiet, das heute angesichts der Anschläge auf Batac‐
lan und Istanbul, des Islamischen Staates und des Dschihad kaum aktueller
sein könnte. Er schreibt: „Der Islam nährt sich an den gleichen Quellen wie das
mittelalterliche Christentum: am semitischen Schriftentum und an der griechi‐
schen Philosophie.
Seine Theologie orientiert sich an der Logik eines Aristoteles. Seine Mystik
geht über die neoplatonische Denkweise von Byzanz hinaus… Es wäre nicht
schlecht, wenn unsere Gesellschaft bei einem Zusammentreffen mit der islami‐
schen Kultur zu ihren eigenen Quellen zurückfände! (Aber auch das Bewusst‐
sein) „des griechischen Ursprungs des mosleminischen Gedankens“ (wird uns
erlauben, immer) „den unfruchtbaren, mit falscher Leidenschaft geführten
Kampf des islamischen Integrismus (zu) verurteilen, der die Ablösung vom
Westen erstrebt, weil er nicht wahrhaben will, dass er in tragischer Weise Be‐
standteil dieses Westens ist“ (Nr. 103‐104).
Also nein, Griechenland ‐vielleicht auch Europa‐ wäre heute nicht so gewe‐
sen, wenn Evrigenis heute leben würde. Sein tiefer Rationalismus, seine streng
konsequente Verantwortung für das Gemeinwesen, seine gelebte Vorstellung
von der Globalität, seine Aktivität für die großen Ziele, zu der er die Mitmen‐
schen seiner Umgebung inspirierte, seine unglaubliche Arbeitsamkeit, sein Be‐
harren auf praktisch soliden Ergebnissen, seine Abneigung gegen leere Worte,
seine große Liebe für den Menschen und seine Hoffnung spendende Begeiste‐
rung für die Zukunft der Jugend hätten es nicht zugelassen.
Evrigenis as an Instigator of Novelty and the
Infancy of Legal Informatics in Greece
Costas Popotas
QUB – Head of Unit, Statutory entitlements, Court of Justice of the EU
1. As a preamble
My first encounter with Legal Informatics owes a lot to sheer hazard. On a
1977 morning, heading towards the Seminar of Civil Procedure, on the third
floor of the Faculty of Law building – of the Aristotelian University of Thessa‐
loniki – I noticed a carton board on the auxiliary entrance of the Seminar of
Comparative and Private International Law announcing classes on legal data
processing. It sparked my interest since I had some experience of program‐
ming Linotype Teletype setters, line casting machines for newspapers operated
through teletype ribbon (and excuse all this technical jargon that seems extinct
today).
Enter the door, I perceived to the far corner or the reading room an elegant,
design made working space separated by the rest of the Seminar by a glass
frame and behind a spacious desk Tassos Passias ‐ who was to become a men‐
tor and dear friend – preparing a cup of espresso in a rare for the time exqui‐
site machine. Quite naturally I did not go to my civil procedure class and
stayed for hours sharing coffees and Gitane cigarettes with Tassos, savouring
the narration on the hesitative steps of legal informatics and the reasoning be‐
hind the creation of INNOMOS, the research project they were mounting with
Evrigenis.
Tassos handed me two reprints of contributions to IXe International Con‐
gress of Comparative law in Teheran in 1974. The first by Evrigenis, titled
«Examen critique et comparative des divers systèmes électroniques de stoc‐
kage et de traitement des informations juridiques». The very first phrase
stamped me forever: “A vast field of knowledge, while at the same time a
principal factor in social life and above all in its structures and mechanisms,
the law cannot but be open to all technical processes which could facilitate and
perfect its function”.
This first encounter led into a lifetime engagement in legal informatics and
of course not much later I came to meet Dimitris Evrigenis, whose reputation
preceded the acquaintance. Evrigenis was a model of assertiveness in that he
was such an accomplished personality that he would not seek to impress, cer‐
tainly not a young student. And this was exactly the climate in which meeting
Evrigenis evolved. A parental figure who listened carefully to the reasons I
could put forth for joining the team and then explained clearly his vision and
what could be realistically expected from applying computer technology in
law, inviting me to think of the challenges of committing into a novel and un‐
charted area.
But even a young student could understand that he was exchanging with a
visionary, a change agent, an innovator. Through the years of collaboration at
40
the Seminar and the Centre for European and International Economic Law, I
realized also that he was a keen scientific manager, a real “doer”, somebody
who needed to transform his vision to reality. In those years I had seen the
benefits which well‐planned applications of modern technology could bring –
but also what pains one should go through –in Greece– in order to obtain ru‐
dimentary funding even for a promising project.
2. Visions and illusions of the early era
Evrigenis’ active involvement in legal informatics did not of course guaran‐
tee a universal acceptance by the legal profession. All the contrary, voices of
doubt and fear of the “enemy within” were articulated. But Evrigenis methods
consisted of a slow, systematic and adaptive approach. His perspicacity had al‐
ready detected the reactions observed or expected when he wrote:
“[e]uphoria is, however, far from generalised. To the optimism of this new caste of
specialists called computer lawyers, optimism ardently supported by the attitude, ob‐
viously expected, of producers of computer systems, opposes the scepticism of those
who, on the one hand, more or less knowingly, contest the extent of the usefulness of
the electronic processing of legal information and, on the other hand, consider that the
introduction of this process in the field of law would be the cause of a series of social,
political, and ultimately philosophical problems.”
And he was no hesitant when he had to trace the direction to follow and the
precautions to take:
“The explosion of legal information is also a Hellenic problem. Legislative texts, as
such, and international treaties, decisions of judicial bodies of all kinds and doctrine,
accumulate in Greece, as in any contemporary state, into a pile of information, always
more difficult to control by the lawyer, who continues to use conventional means of
documentation and research. The need for innovation in this area is therefore felt and
urgent. In particular, the possibility of using the computer in the field of law and the
prospect of creating electronic legal data banks could not but ultimately be taken into
account”[…]“in any case, the possibility of using legal data processing is one of the op‐
tions the contemporary jurist must consider” […] “[b]e that as it may, the lawyer of our
era, perhaps fascinated by the promises of informatics, must not lose sight of the im‐
plications that the introduction of this process might have on the function and the mis‐
sion of the law, on justice, even on himself, namely the political and social implications
of legal informatics.”
This is the reason why he organised the courses which were mentioned ear‐
lier, through which a whole generation of lawyers were trained and prepared
in the use of legal informatics. That was actually one of the elements that Evri‐
genis stated amidst the main reasons for the creation of INNOMOS. In his pa‐
per presented at the ninth International Congress of comparative law he ex‐
plained that one of the two “raisons d’être” of the experimental project had to
be linked with legal education focusing on the elaboration, processing and
availability of teaching material destined to law students, but at the same time
serving as the initiation of the latter in the area of legal informatics.
The other main purpose of the project imagined by Evrigenis was the ex‐
41
perimentation in the domain and the doctrinal assessment of practical poten‐
tial that legal informatics presented in the area of legal research and documen‐
tation particularly taking into account the structural idiosyncrasies and linguis‐
tic characteristics of the Greek legal system. In the same paper he presented a
very thorough and mature analysis of the reasons that dictated the delimita‐
tion of the research in the area of case law on conflicts of laws. Out of commod‐
ity as he said the obvious choice pointed to the Greek case law in the area of
private international law, since the specialisation of the Seminar guaranteed a
relative facility for the collection and the elaboration of data.
In terms of research constraints he considered that each particular category
of legal information (legislative texts, case law, doctrinal work) had its own
linguistic structure and conceptual particularities making necessary a different
treatment both at the preparation stage as well as during the storage and proc‐
essing in electronic form. Since INNOMOS was still in its experimental phase,
he was not prepared to inject methodological rigidity in the project.
On the other hand it was clear in his mind that by obtaining tangible results
in an area that presented the utmost difficulties, namely litigation, he would
have solved methodological problems in all other areas, while in parallel he
would have obtained practically useful results for research purposes but also
for the education of law students – and he did materialise the latter through
the courses at the Seminar but also a round of high quality long term tuition in
the domain organised jointly by the Centre for International and European
Economic Law and ELKEPA, the Greek Centre for productivity which then
was the only instance offering computer courses.
But the most ground cutting decision is the fact that Evrigenis opted bravely
enough for storing the full text of the judgements concerned despite considera‐
tions as for the cost of typing and storing the date. The reader should keep in
mind that at the time of INNOMOS, mainframe computer would store the data
on magnetic tapes at best – the team managed to obtain this privilege at the
end ‐ and that the processing memory was less than the capacity anyone has
on his smart phone nowadays. Nevertheless, not amazingly, the choice of full
text has in the meanwhile become the predominant form of processing legal
data, corroborated more recently by the rebirth of artificial intelligence meth‐
ods for the understanding of legal texts and the extraction of legal information,
leading practically all adverse approaches based on indexing and summarising
of texts to extinction.
3. The INNOMOS project and the lost opportunities of legal informatics in
Greece
Evrigenis all action dynamism pushed him to draw on all available means.
The lack of appropriate modern equipment and infrastructure at the time of
the beginning of the project did not intimidate him. With the support of the
INNOMOS team –six heads including Passias– he decided to start encoding
the data on punch card machines (I doubt whether anybody younger would
have a recollection of that painful process) while awaiting the installation of a
42
terminal. I thus started with the group using my typing skills on punch card
machines at the Physics and Mathematics faculty.
Speaking about the technical infrastructure of that first period, it is sure that
Evrigenis managed the unthinkable, since he used his influence and reputation
to break into the taboos of privileged hunting grounds reserved to disciplines
other than law. Obtaining a slot in the time available by the informatics centre
of the University of Thessaloniki, time destined principally to the staff and
students of science doctrines and therefore isolated within the faculty of phys‐
ics and mathematics, was a major achievement. It was a remarkable success
back in the 70s not only to persuade the University authorities that the Law
faculty was also entitled to the usage of the scarce informatics resources, but
also to prove on top of that that an experimental project in the area of law, that
was not using the computer for mathematical calculations, could exploit mean‐
ingfully the time and resources made available.
The first computer in use, an IBM 1620, imposed also the choice of the pro‐
gramming language, FORTRAN, mainly intended for mathematics calcula‐
tions, which in the lack of alternatives was pushed to its limits in order to al‐
low for the processing of textual data. Theodosis Chimonidis was recruited for
the task, importing with him a technique with the terrible German name of
“Konkordanz”. The task of processing textual data through punch card entry
was arduous. Multitasking had not been invented at the time and users were
queuing to hand on the one hand a lot of cards with the programming instruc‐
tions and on the other their data in the form again of a pack of cards. In our
case the volume of data normally imposed overnight processing, thus results
were made available in the next morning in the form of a printed list through
which human intervention had to check whether the grouping of forms was
successful before any further treatment could happen.
Happily enough the project met early with the first infrastructure transition,
moving from the IBM computer onto a UNIVAC 1106 with magnetic tape units
and the – enormous for 1978‐amount of 262,144 thirty‐six bit words, approxi‐
mately equivalent to 256k of memory ‐compare this to the nowadays minimum
configuration of 4gigaon your laptop. Not much later though, thanks to the ac‐
tive insistence of Tassos and the involvement of Evrigenis, I could speak of the
advantages of the workstation which was installed in the INNOMOS area,
which brought the capacity to program remotely our researches in case law.
The whole team rejoiced at the arrival of a smart terminal equipped with a 5 ¼
inch floppy disk reader and a page writer impact printer.
The advent of the new equipment launched the project on a new footing.
Not only as from then could the text of the judgement concerned be repro‐
duced quickly on the printer upon simple request, but, more importantly, from
then on we were able to demonstrate what Evrigenis was calling “conceptual
selection”, the research based on legal concepts, in order to retrieve and pre‐
sent a set of relevant texts on screen and eventually on paper. It was not
though without substantial background work that such a result was feasible.
For each case fed in the system, a detailed linguistic analysis followed in order
to allow for accurate and pertinent results.
43
As Evrigenis explained on several occasions, a pious process had to be fol‐
lowed, leading to the “identification and localisation of grammatical units
(words and word combinations) englobing legal concepts”. Several passes
were necessary in order to enrich a thesaurus of terms of research inventorying
and grouping all grammatical variations of a word, numerous in Greek, after
neutralising “words trivial (insignificant) on the normative legal level” and re‐
taining the “significant terms”.
When the group reached the capacity to conduct searches through a corpus
of 400 cases we undertook the task of demonstrating proudly the system to as‐
tounded audiences that were discovering the future of legal research. But for
one of the first lessons learned, I always remember Evrigenis, when rehearsing
a presentation, sitting on a sturdy chair – because of his back problems – com‐
menting rightfully so: “I am afraid you skipped case ….”.
4. Conclusion: If…
Many times since, I wondered how far we could have gone if Evrigenis had
not left us that early. We could have celebrated the 40 years of INNOMOS’ his‐
tory this year. During the first endeavours in the legal informatics INNOMOS
was competing head to head with the best of the projects worldwide. If kept
alive, it would have certainly gained a place amongst the pathfinders of legal
data processing.
Where do we stand now? The Free Access to Law Movement (FALM), the
international movement and organization devoted to providing free online ac‐
cess to legal information lists 63 institutions as members, none from Greece.
Nowadays, more than 40 years after the first steps in legal informatics in
Greece the use of modern technology in the legal domain is a commonplace.
Google can answer intelligently a number of questions phrased orally to our
smart phones. Would it be necessary for INNOMOS to compete on this field?
Had the project existed far too early? Well, if you dig into the techniques ap‐
plied you realise that apart from the training of the systems made possible be‐
cause of the massive data easily available today, most of the recommendations
in Evrigenis’ papers and the INNOMOS findings forms till part of the work‐
ings behind contemporary information retrieval systems. What is sad is that
none of the know how was preserved – apart from the two volumes of “Infor‐
matics and Law” published by and in honour of Tassos Passias.
I dare say that the valuable work of INNOMOS could have been canalised
into a practical application which, following a maturity cycle, would have been
unique in the processing of Greek legal information, equivalent to what is
available nowadays in several legal systems if not better. As a comparison,
think that the Australasian Legal Information Institute (AustL II) was estab‐
lished in 1995, its offspring, the British and Irish Legal Information Institute
(BAIL II) started in 1999.
Evrigenis’ interest in legal informatics was never animated by the wish to
propose a commercially available system. His interest was in seeing how op‐
erational information technology could help legal and judicial services add
44
value to their workings and certainly render their workings more efficient by
reducing redundancy and guaranteeing coherence to the legal production. In
fact he was not solely concerned with legal data processing, he drew attention
to all the different ways in which technology could help solve some of the is‐
sues with which the legal world was struggling: an integrated system for court
administration, a unified registry for criminal records, an operational land reg‐
istry.
Looking back, I must also say that Evrigenis advocated a reasonable use of
computer systems, being fully aware of the difficulties of funding opportuni‐
ties in a country that was just recovering from an undemocratic regime – from
which he suffered personally. But bluntly said the state authorities were not in‐
terested, they probably did not understand the savings that could have been
done had the recommendations been adopted. The lack of funding and finally
Evrigenis –following by Passias– passing away left INNOMOS slowing down
and the domain of legal informatics in Greece lagging behind until complete
extinction of the project. Greece lost then a tremendous opportunity to be at
the forefront of applied research in the area of legal informatics.
But even as things stand, some of us have a lot to be thankful for. Evrigenis
has been a source of inspiration and a unique creative force, a role model even
after his passing away.
Dedication to Professor Evrigenis:
The Greek Nationality Law as Part of
Private International Law Courses
Zoe Papassiopi‐Passia
Emerita Professor, Aristotle University of Thessaloniki
An introduction and a brief history
The connecting factor of ‘nationality’ plays an important role in conflict of
laws issues1. It’s the reason why ‘Nationality Law’ is studied at Greek Universi‐
ties in the frame of ‘Private International Law lato sensu’2 courses. The basic na‐
tionality provisions are included in the Code of Greek Nationality (CGN) and
in some other specific legislative acts; while in the second Chapter of Civil
Code ‐ which deals with the private international law provisions (Articles 4‐31)
– is the Articles 29‐31CC which regulate the personal status of a person, with
lex patriae to be the dominant connecting factor for that purpose3.
The current CGN is Law 3284/2004 (as amended and supplemented by
Laws 3731/2008, 3838/2010, 3938/2011, 4251/2014, 4332/2015 and 4452/2017), en‐
tered into force on November 2004 and had codified in a unified text all the
provisions pertaining to the acquisition and loss of Greek nationality, as well
as all the amendments occurred to the Laws introduced after the coming into
force of the previous CGN (Decree 3370/1955).
The initial text of the current CGN of 2004 brought no radical changes in na‐
tionality matters. All the radical and very significant amendments occurred in
the aftermath of Laws 3838/2010 and 4332/2015.
Prior to the existing legislation, there were several other legislative instru‐
ments worth mentioning: for example, the Civil Act of 1856, the Legislative
Decree 3370/1955 on the codification of the Code of Greek Nationality, the Leg‐
islative Decrees 4532/1966 and 610/1970, Law 1438/1984 the provisions of
which introduced the principle of gender equality as mandated by Article 4 (2)
of the Greek Constitution of 1975 in nationality issues, and Law 2790/20004
1 This article is dedicated to my honorable, respected and beloved Professor of Private Inter‐
national Law Dimitrios J. Evrigenis; an outstanding teacher and a scientist of international pres‐
tige.
2 P. Vallindas, Droit international privé « lato sensu » ou « stricto sensu », Mélanges offerts à
Jacques Maurry, Paris 1960 Vol. I p. 509 et seq.
3 According to the provision of Article 29 CC “The acquisition and loss by a person of the na‐
tionality of a given state shall be governed by the law of that stateʺ. Article 30 CC determines
that, “Unless otherwise stipulated by the law, if the person concerned has no nationality then in
place of lex patriae shall be applicable the law of the habitual residence, and, failing an habitual
residence the law of the simple residence”. Further, Article 31 CC stipulates that “If the person
concerned acquires both Greek and a foreign nationality then Greek law is applicable. If the per‐
son concerned has several foreign nationalities then shall be applicable the law of the state to
which such person is the more closely connected”.
4 Law 2790/2000 was a very important instrument, because it granted Greek nationality to the
46
which regulated the personal status of ethnic Greeks originating from the for‐
mer Soviet Union, who came by thousands the last three decades in Greece5.
The need to regularize the second generation immigrant children’s6 per‐
sonal status and the need to modernize the provisions of the current Code of
Greek Nationality (CGN) too, led the Greek legislator to adopt innovate provi‐
sions, thus proceeding to the acceptance of the jus soli principle and to the con‐
sequent retreat of the jus sanguinis principle, which characterized until then the
Greek nationality matters.
A. Policies and characteristics
Since the radical amendments introduced by Laws 3838/2010 and 4332/2015,
which inserted new provisions to the current CGN, referring specifically to the
acquisition of Greek nationality by second generation immigrants, the funda‐
mental principle of Greek nationality law has been the jus sanguinis principle,
which continues to dominate the provisions of CGN; especially through the
concept of “homogenis”7 (i.e. persons of Greek descent), and only secondarily
the principle of jus soli.
The jus soli principle appeared in Greek nationality law in a more radical
manner by Law 3838/2010. However, these provisions lasted for a year only,
since the Council of State by its decision 350/2011, and following that its ple‐
nary session decision 460/2013 suspended their implementation. The main rea‐
son for such suspension was that the relevant provisions of Law 3838/2010 re‐
repatriating ethnic Greeks under a special (sui generis) naturalization process, since it was diffi‐
cult for them to acquire the Greek nationality under the 1930 Treaty of Ankara, or the 1923
Treaty of Lausanne.
5 For the previous Laws see E. Bendermacher‐Gerousis, The Law of Greek Nationality, 1975
(third edition, Thessaloniki), [in Greek], D. Christopoulos, “Greece” in R. Bauböck / E. Ersbøll /
K. Groenendijk / H. Waldrauch, (eds.), ‘Acquisition and Loss of Nationality. Policies and Trends in 15
European States’, Vol. II: Country Analysis, (Amsterdam University Press, 2006), 255, A. Gram‐
maticaki‐Alexiou, Greek Nationality Law, in B. Nascimbene (ed.), ‘Nationality Laws in the Euro‐
pean Union’, (Milan, Giuffré, 1996), 387, S. Grammenos, ‘Greek Nationality Law’ (5th edition, Ath‐
ens, 2005) [in Greek], Z. Papassiopi‐Passia, ‘The Greek Nationality in a Nutshell’, 51, Revue hellé‐
nique de droit international, (1998), 501, idem, ‘Nationality and the Law of Aliens’, in K. Kerameus
/ Ph. Kozyris (eds.), ‘Introduction to Greek Law’ (2nd edition, Kluwer International / Ant. Sakkou‐
las Pubs. Athens, 2008), 409, idem., ‘Nationality Law’, (8th edition, Athens‐Thessaloniki, Sakkoulas
Pub. 2011) [in Greek].
6 The term ʺsecond generationʺ usually means children born in Greece by third‐country na‐
tionals who have a legal and permanent residence in the country, as well as children who came
to Greece at an early age in the context of family reunification processes. The same category also
includes children of the so‐called ʹthird generationʹ (double ius soli), i.e. children born in Greece
by parents who were also born in Greece and for whom there is ‐ as stated ‐ a special provision
in article 1§2 a΄ CGN for the automatic acquisition of Greek nationality.
7 Literal meaning: of same nation (ethnic Greeks), who also have Greek «consciousness».
Greek nationality law adopts special provisions regarding the acquisition of Greek nationality
by aliens of Greek descent (homogeneis) who are accorded a special status in order to facilitate
their naturalization process by exempting them from the requirement of residence in Greece for
a certain period of time, while a special provision of the Code of Greek Nationality (Article 10)
regulates the naturalization for those “homogeneis” who live abroad. The commitment of the
Greek legislator to the principle of jus sanguinis is obviously apparent in their case.
47
ferring to the acquisition of Greek nationality by second generation immi‐
grants ‐and among them those providing for the acquisition of Greek national‐
ity by alien minors being born in Greece‐ were deemed unconstitutional. Only
after the publication of Law 4332/2015, important amendments were intro‐
duced to the CGN, since new provisions were adopted regarding the acquisi‐
tion of Greek nationality jure soli by second generation immigrants, but in an‐
other form, giving a special importance to school attendance, in order to mend
the above Council of State decisions’ unconstitutionality8.
Another main feature of nationality law is “pluri‐nationality”, mostly due to
the application of the ius sanguinis principle. Plurinationality is not simply tol‐
erated by the legislator; quite often it seems to be compulsory. Thus, for exam‐
ple, an alien who acquires Greek nationality through naturalization retains
his/her original nationality, since Greek legislation does not require its loss in
for the acquisition of Greek nationality9.
B. Acquisition of Greek Nationality
§1 Automatic acquisition by operation of law
I Acquisition by birth
1. Jure sanguinis
According to the first paragraph of Article 1 CGN “the child of a Greek fa‐
ther or of a Greek mother acquires the Greek nationality as from the time of
his/her birth’. This provision reflets the principe of jus sanguinis and through
that the wish of the Greek state to preserve the bonds of its emigrant popula‐
tion with the country of origin, irrespective the nationality of the other parent
or the place of birth. Ηowever, it should be noted that the principle of jus san‐
guinis also means that Greek nationality is acquired by birth also by children of
aliens who have already acquired Greek nationality either through naturaliza‐
tion or otherwise10.
2. Jure soli
According to Article 1 paragraph 2 CGN “A person who is born in Greece
acquires the Greek nationality if:
a. one of his/her parents is born in Greece and the person resides in Greece
on a permanent basis since his/her birth;
b. does not acquire foreign nationality by birth nor can it acquire it further
to a declaration made by his/her parents before the relevant authorities;
8Z. Papassiopi‐Passia / V. Kourtis, “Aliens Law’, (Athens‐Thessaloniki: Sakkoulas Pub. 2015)
[in Greek], 158.
9 Z. Papassiopi‐Passia, ‘The Phenomenon of Plurinationality and its Implementation into the
Greek Nationality Law. Governmental Legal Policy v. Justice’, in ‘Festschrift in Honor of Professor
P.J. Kozyris: ‘Justice in Particular, (Athens, Ant. Sakkoulas Pub. 2007 II), 261, K. Tsitselikis, ‘Citi‐
zenship in Greece: Present Challenges for Future Changes’, in D. Kalekin Fishman / P. Pitkänen
(eds), ‘Multiple Citizenship as a Challenge to European Nation‐States’, (Rotterdam‐Teipei, 2006), 145.
10 Z. Papassiopi‐Passia, ‘The jus sanguinis Principle: Ethnicity or Hellenicity? Developments
and Current Tendencies of the Greek Nationality Law’, Journal of Administrative Law (2012), [in
Greek], 293.
48
c. does not have a known nationality as long as the lack of known national‐
ity cannot be attributed to lack of cooperation on behalf of the parent”.
The first case refers to the general principle of double ius soli (i.e. third gen‐
eration immigrants), while the other two, in order to avoid statelessness, refer
to granting the Greek nationality in cases when, upon birth, the child does not
acquire the nationality of any parent.
II Acquisition after birth
1. As a minor child
a. By recognition (Article 2 CGN). Voluntary or judicial recognition of the
paternity of a minor child born out of wedlock to a Greek father and an alien
mother results in the attribution of Greek nationality to that child from the date
of recognition. It is irrelevant whether the child already has the nationality of
his/her mother. The same applies if the child was born during a cohabitation
pact (Law 4356/2015).
b. By adoption (Article 3 CGN). A minor alien adopted by a Greek citizen
becomes Greek as of the time of the adoption.
c. By being a minor child whose parent acquired Greek nationality by decla‐
ration and request according to the provisions of Article 1B paragraphs 1‐2,
and 5 CGN11 (Article 1B paragraph 6 CGN).
d. By being a minor child (below 18 years of age) of a naturalized alien (Ar‐
ticle 11 CGN).
e. By being a child of a naturalized “homogenis” and his/her parent is living
in one of the Republics of the former Soviet Union (Article 15 paragraph 4
point e′ CGN).
f. By being a child of those for whom the Greek nationality has been defined
according to the provisions of Article 14 paragraphs 1‐2 CGN (Article 14 para‐
graph 4 CGN)12.
2. As an adult
a. Greek nationality may be acquired by those enrolled as volunteers in the
Greek armed forces as officers or non‐commissioned officers. It is an ipso jure
means of acquiring the Greek nationality, but reserved only for aliens of Greek
descent “homogeneis”. The same rule applies in the case of “homogeneis” who
enter Greek military schools (Article 4 paragraph 1 CGN).
b. Also Greek nationality may be acquired by joining the Greek police (Arti‐
cle 8 of Law 3938/2011).
c. By admission of as novices; Article 105 paragraph 1 point c′ of the Consti‐
tution provides for the acquisition of Greek nationality by monks in Aghion
Oros (Mount Athos). An alien male automatically and without any further
formalities acquires Greek nationality from the moment of his tonsure and his
name is written in the Athonian Register as novice or monk 13.
See below III. 3
See below II
13 Ch. Papastathis, ‘The Nationality of the Mount Athos Novices and Monks of Non‐Greek
Origin’, 8, Balkan Studies (1967), 75.
11
12
49
§2 Automatic acquisition upon submission of request or declaration or of a
joint request and declaration
I. Acquisition upon submission of a request
This category includes cases involving a request for acquisition of Greek na‐
tionality from persons of a foreign nationality but of Greek origin who either
originate from regions which, before the Ottoman Empire were Greek territory
‐as is the case for “palinnostountes”14 or are joining the Greek armed forces.
The cases of acquisition of Greek nationality, automatically after a request to
the relevant authority, are the following:
a. By joining the armed forces as volunteer in times of general mobilization
or war, provided that the person is an ethnic Greek and submits a relevant re‐
quest (Article 4 paragraph 2 CGN).
b. As the minor child of an “homogenis” upon submission of a relevant re‐
quest from his/her parent, whose the enrolment as volunteer in the Greek
armed forces as officers or non‐commissioned officers or for attendance in mili‐
tary schools in Greece constituted the ipso jure acquirement of the Greek na‐
tionality to the child (Article 4 paragraph 5 CGN).
c. By being a Greek by origin who is living in one of the Republics of the
former Soviet Union. He/she can acquire the Greek nationality upon request to
the relevant Greek consular authority of his/her place of residence, provided
that he/she is an adult and his/her Greek nationality cannot be ascertained in
accordance with the Treaties of Lausanne (1923)15 and Ankara (1930)16. This
case forms a sui generis naturalization, since what is needed is to establish
his/her status as “homogenis” (Article 15 CGN)17.
d. By being a Greek by origin provided that he/she possesses the Special
Identity Card of “Homogenis”18, after the submission of a relevant request to
the regional authority of the place of his/her permanent residence (Article 23 of
Law 3838/2010).
e. By being repatriating Greeks (‘palinnostountes’) originating from the
former USSR countries or who are living either in one of the Republics of the
former Soviet Union or in Greece (Article 1 paragraph 11 of Law 2790/2000 as
in force).
f. By being repatriating Greeks who entered the Greek territory by the 2nd
14 “Palinnostountes” are normally the repatriated Greeks originating from the former USSR
countries. The provisions relating to repatriated Greeks mainly focus on the verification of their
status as “homogeneis”; so they establish, recognize or grant the Greek nationality to them, de‐
pending on the category each person falls.
15 Ratified by Law Decree of August 25, 1923.
16 Ratified by Law 4793/1930.
17 S. Grammenos, ‘Greek Nationality Law’ (5th edition, Athens, 2005) [in Greek], 144, E. Krispis,
‘Acquisition of Greek Nationality according to the Treaty of Lausanne (1923). Competence of the
Minister of Interior and of Civil Courts in Matters of Nationality’, Koinodikion (1997) [in Greek],
271.
18 The Special Identity Card of Homogenis (ΕΔΤΟ) is serving as a residence permit and is
granted to the holder’s family members as well. The ΕΔΤΟ holder, until the moment of the ac‐
quisition of Greek nationality after submission of a relevant request, ensures his/her legal stay in
the country, even if he/she does not submit such request.
50
of May 2001 (date of publication of Law 2910/2001 in the Greek Official Ga‐
zette19, originating from the former USSR countries (Article 76 paragraph 6 of
Law 2910/2001).
II. Acquisition upon submission of a declaration
Pursuant to Article 14 CGN Greek nationality may be acquired after the sub‐
mission of a declaration by an alien who:
a. had been born before 8 May 1984 to a Greek mother at the time of his/her
birth or celebration of the marriage, provided that he/she declares his/her rele‐
vant intention before the Coordinator (former Secretary General) of the Decen‐
tralized Administration or the Greek consular authority of his/her place of
residence (Article 14 paragraph 1 CGN).
b. had been born to a Greek father and alien mother before the entry into
force of Law 1250/1982 (16.7.1982), provided that such child is considered le‐
gitimate according to Article 7 paragraph 3 of the aforementioned Law. He/she
acquires the Greek nationality from the moment he/she declares his/her inten‐
tion to that effect before the Coordinator (former Secretary General) of the De‐
centralized Administration or the Greek consular authority of his/her place of
residence (Article 14 paragraph 2 CGN).
Both the aforementioned provisions aim at correcting the misguided regula‐
tions that had led to special transitional provisions included in previous laws
(such as the provisions of Article 8 paragraph 1 of Law 1438/1984 and of Arti‐
cle 7 paragraph 3 of Law 1250/1982), under which children born to a Greek
mother, who by marriage to an alien lost ‐in most cases automatically‐ her
Greek nationality according to the CGN that was in force at that time (L.D
3370/1955), and to children born to a Greek father out of wedlock (because
their father’s civil marriage was celebrated abroad before the entrance of this
kind of marriage in the Greek domestic law)20, were virtually excluded from
the acquisition of Greek nationality.
III. Acquisition upon submission of a joint declaration and request
1. An Introduction
This mode of acquisition of Greek nationality affects second generation im‐
migrants. The case of granting the Greek nationality to such immigrants was
introduced in CGN for the first time by Law 3838/2010, which had brought
radical reforms in the provisions of the current CGN (3284/2004). The provi‐
sion of Article 1A as inserted in CGN by the aforementioned Law of 2010,
regulated the granting of Greek nationality to minors who were born in
Greece, after a submission of a joint declaration and request by their parents
regarding their registration at the Municipality Registry of the child’s perma‐
nent residence, on condition that both parents had been residing in Greece on a
permanent and lawful basis for at least five consecutive years. A child of for‐
This date was set to 31.5.2006.
Till the enactment of Law 1250/1982, only marriages celebrated according to the Greek Or‐
thodox rites were recognized as valid in Greece.
19
20
51
eign parents, who attended Greek school in Greece for at least six years and re‐
sided on a permanent and lawful basis in the country, also acquired the Greek
nationality after the submission of a joint declaration and request by his/her
parents on completion of the six‐year term school attendance.
However, after an appeal of Greek citizens before the Council of State, the
Court decided –among others– that the provision of Article 1A, inserted in
CGN by Law 3838/2010, and the provision of Article 2421 of the same Law were
unconstitutional, as the ius soli principle that both articles adopted had to be
combined with “substantive criteria in order for the genuine link of the alien to the
Greek society to be demonstrated”. Thus the above provisions of Articles 1A CGN
and 24 of Law 3838/2010 were suspended. It is only after the publication of
Law 4332/2015 that the acquisition of the Greek nationality by second genera‐
tion immigrants through birth and school attendance resurfaced, though in a
different form, which is attempting to absorb the unconstitutionality of the
previous Law 3838/2010. The new provisions of Articles 1A and 1B ‐introduced
in CGN by Law 4332/2015‐ place more weight on secondary Greek education,
through which the goal of an alien minor’s integration in Greek society is ex‐
pected to be secured, than on the fact of the child’s birth in Greece.
2. Acquisition by birth and school attendance (Article 1A CGN)
Article 1A CGN establishes that Greek nationality is not acquired by the
alien child solely based on his/her birth. In fact, his/her birth in Greece is con‐
sidered only at the moment of his/her registration in a Greek school; namely
after eleven years of lawful and permanent residence of the parent, of which
five before birth and six afterwards. Thus, the new regulation joins the fact of
“integration” ‐which was the main point of reactions against the previous Law
of 2010‐ with the fact of the duration of the parent’s residence in Greece as
holder of a residence permit marking his/her long stay in the country, as well
as the fact that the family of the child continues to reside in Greece after his/her
birth. All are facts which prove the parents’ “will” for their child to follow the
Greek education and consequently prove the child’s ‘integration’ into Greek so‐
ciety.
According to Article 1A paragraph 1 CGN, as it stands, an alien child born
in Greece is entitled to acquire the Greek nationality under the following con‐
ditions: a) by registering at the first year of primary education at a Greek
school and continues to attend the Greek school at the time of the submission
of the relevant joint declaration‐request by the parents, b) showing previous
continuous lawful residence of one of his/her parents of at least five years be‐
fore his/her birth. If the child was born before the completion of the above five
years of residence, then the right for the acquisition of Greek nationality is
based on the completion of ten years of continuous legal residence of the par‐
ent, c) Legal stay of at least one of the parents (as a holder of one of the resi‐
21 Article 24 of Law 3838/2010 was a transitional provision that regulated the acquisition of
Greek nationality by the second generation immigrant children who at the moment of publica‐
tion of Law 3838/2010 had reached majority.
52
dence permits described in detail in the same provision) in Greece at the time
of submission of the relevant joint declaration/request. The submission of the
joint declaration/request for the acquisition of Greek nationality is lodged by
both parents before the competent authority of the Decentralized Administra‐
tion of the place of residence of the applicants. In case of a single parent’s child
or of a child entitled to international protection (i.e. recognized refugee or
beneficiaries of subsidiary protection or stateless person), the joint declaration
and request for the acquisition of Greek nationality is submitted by the remain‐
ing parent or the parent to whom the custody of the minor has been entrusted,
provided that all the other necessary conditions are met. In cases of unaccom‐
panied minors the joint declaration/request is submitted by the guardian or the
representative of the minor.
3. Acquisition through school attendance (Article 1B CGN)
According to Article 1B paragraph 1 CGN, “an alien minor residing perma‐
nently and legally in Greece is entitled to acquire Greek nationality through
school attendance or at a school which follows the obligatory Greek school
programme of education and teaching in Greece at a Greek school, either after
the successful completion of nine years of primary and secondary education,
or after six secondary school years. Attendance in kindergarden does not
count. Successful completion of the required studies is evidenced by a certifi‐
cate, issued by the competent authority”.
Also, according to the second paragraph of Article 1B CGN, “an alien resid‐
ing permanently and legally in Greece who graduated from a Department or a
Faculty of a Greek University or of an Institution of Technical Education, estab‐
lishes the right to acquire the Greek nationality, provided he/she is a holder of
a baccalaureate of a Greek secondary education school in Greece. The joint dec‐
laration‐request is submitted within a deadline of three years from the date of
his/her graduation”.
In both the above cases of Article 1B, the relevant joint declaration/request is
lodged by the alien himself/herself to the competent authority of the Decentral‐
ized Administration in the territorial jurisdiction where the municipality of
his/her residence belongs.
In case the joint declaration‐application for acquisition of the Greek nation‐
ality had not been submitted by the alien minor when he/she had finished the
nine‐year education in a Greek school, the above declaration and request can
be submitted by him/her before the Decentralized Administration of the place
of his/her residence until the completion of the 21st year of age, provided
he/she continues to reside legally and permanently in Greece (Article 1B para‐
graph 5a CGN). However, in case the acquisition of Greek nationality is estab‐
lished after the interested alien attains his/her majority, the then adult alien can
lodge the relevant joint declaration and request before the competent authority
of Decentralized Administration until the completion of the age of 23, within a
deadline of three years from the date he/she completed nine school years of
education at a Greek school or six years of secondary education, provided
he/she continues to reside legally and permanently in Greece (Article 1B para‐
53
graph 5b CGN).
Greek nationality, based on the above new provisions of Articles 1A and 1B
CGN, is acquired from the time of publication of the summary of the relevant
decision of the Decentralized Administration in the Official Gazette, and has
no retroactive effect to the time of birth or the time of completion of required
studies. The aliens who acquire the Greek nationality through the above provi‐
sions may keep their previous one, thus becoming, in most of the cases, “pluri‐
nationals”.
§3 Acquisition upon request and acceptance
Naturalization
A distinction is made between aliens of Greek descent (“homogeneis”) and
aliens of non‐Greek descent (“allogeneis”).22 An alien is considered, however,
of Greek descent when he speaks the Greek language, accepts common tradi‐
tions, common Greek ancestry, and, most important of all, retains a Greek eth‐
nic consciousness. This final element may be evidenced by the facts set forth in
the memorandum of the appropriate authority. By contrast, an alien of non‐
Greek descent (“allogenis”) is one who does not fulfill these conditions, being
both of foreign ethnicity and of foreign nationality.
1. Naturalization of an alien of non‐Greek descent
The conditions and process of naturalization are described in Articles 5–9
CGN (Law 3284/2004), as amended by Law 3838/201023. Pursuant to the
amended Article 5 CGN, an alien may submit an application for naturalization
if he/she is an adult (18 years old) and has not been sentenced finally and con‐
clusively for imprisonment for a period longer than one year during the last
ten years or for a period of at least six months and irrespective of the time of
issue of the sentence for the following crimes: crimes against the system of
government; high treason; homicide; grievous bodily harm; crimes concerning
the trading and trafficking of narcotic substances; money laundering, or inter‐
national financial crimes; crimes committed through the use of advanced tech‐
nology; crimes involving money forgery; crimes relating to the trafficking of
children, child prostitution and child pornography; crimes regarding the set‐
ting up and participation as a member in a crime organization according to Ar‐
ticle 187 of the Penal Code, as well as the crimes of Article 187A of the Penal
Code; crimes of insubordination vis‐à‐vis the authorities; abduction of minors,
crimes against sexual freedom or financial exploitation of sexual life; theft,
fraud, embezzlement; extortion; usury; crimes provided by the law on inter‐
mediaries; forgery; false certification; libel; slander; smuggling; crimes concern‐
ing weapons or antiquities; trafficking of illegal immigrants into the country’s
22 J. Voulgaris, The Discrimination Between ‘Homogeneis’ and ‘Allogeneis’ and its Influence
on the Acquisition of Greek Nationality, 53, Harmenopoulos (1999), 1354 [in Greek].
23 Z. Papassiopi‐Passia, ‘Nationality Law’, (8th edition, Athens‐Thessaloniki, Sakkoulas Pub.
2011) [in Greek], 114, E. Tsolakou, ‘Naturalization of Alien Citizens’, 64, Revue hellénique de droit
européenne (2011), 115.
54
territory or the facilitation of their transport or aiding and abetting thereto; or
violations of legislation on the establishment and movement of aliens in
Greece, or the procurement of housing for the purposes of hiding. The alien, in
principle, should lawfully reside in Greece for seven consecutive years prior to
the submission of the application for naturalization, except if he/she was born
in Greece and no time condition is needed.
The holders of an EU nationality, the spouses of Greeks who have a child,
the persons having the right of custody of a child of Greek nationality, the rec‐
ognized political refugees and stateless persons, are required to have resided
in Greece for three consecutive years prior to the submission of the application
for naturalization. The time spent in Greece in the capacity of a member of a
diplomatic and consulate mission does not count towards the fulfillment of the
time requirement (Article 5 paragraph 1 (d) CGN).
The lawful nature of the alien’s residence in Greece is evidenced by an ex‐
haustive list of documents set out in the amended Article 5 paragraph (e)
CGN. In addition, some substantive conditions need to be satisfied in order for
the alien to be naturalized, contained in the provision of Article 5A CGN:
he/she should speak sufficiently well the Greek language in order to fulfill
his/her obligations as a Greek citizen; he/she should take part in the social and
economic life of the country, in particular be familiar with Greek history and
culture so that he/she can participate in the political life of the country; his/her
overall economic activities and his/her participation in public and welfare or‐
ganizations where Greeks are members shall be considered; similarly, his/her
education at Greek institutions shall be taken into account; his/her family link
to a Greek national, the fulfillment of his/her tax obligations and social security
contributions, as well as the acquisition of real estate and his/her general finan‐
cial situation shall be assessed when his/her application is reviewed. The Natu‐
ralization Committee deciding on the application may ask the applicant to sit
for a test in order to reach a conclusion regarding the above. Finally, the appli‐
cation should not raise any concerns to the public or national security (Article
5B CGN).
The alien, who wishes to be naturalized, lodges a declaration to the munici‐
pality of his/her permanent residence, and a naturalization request addressed
to the Minister of the Interior to the services of the Decentralized Administra‐
tion in which the municipality belongs. The naturalization declaration is made
before the Mayor in the presence of two Greek citizens as witnesses. If the for‐
mal requirements are met, the alien is invited to an interview before the com‐
petent Naturalization Committee. The latter prepares a report on the questions
submitted to the applicant and the responses provided. The report is subse‐
quently transmitted to the Minister of the Interior and is notified to the appli‐
cant, who may challenge the report before the Council of Nationality within
fifteen days. The Minister of the Interior has the discretion to decide in favour
of or against the naturalization, and the decision is published in the Official
Gazette of the Greek state. Greek nationality is acquired upon the taking of a
solemn oath within a year after the publication of the naturalization in the Of‐
ficial Gazette (Article 9 CGN).
55
2. Naturalization of an alien of Greek descent
The aforementioned provisions on naturalization regulate the naturalization
of an alien of Greek descent (“homogenis”) as well. However, the commitment
of the Greek legislator to the principle of jus sanguinis (and to the Greek ethnic‐
ity) is very apparent in his/her case, as it exempts him/her from the time re‐
quirement of a seven‐year lawful residence in Greece prior to the submission
of the naturalization request (Article 5 paragraph (d) CGN), as well as from
his/her appearance before the Naturalization Committee of the competent De‐
centralized Administration (Article 7 paragraph 8 as in force), and from the ob‐
ligation to submit a declaration (Article 6 paragraph 1 CGN as amended by Ar‐
ticle 4 of Law 3838/2010 and supplemented by Article 142 paragraph 2 of Law
4251/2014). Additionally, it is worth noting the special provision of Article 10
CGN that the Greek legislator reserves for those “homogeneis” who are living
abroad: They have the right, while living abroad, to submit an application for
acquisition of the Greek nationality before the Greek consular authority of their
place of residence, who then transmits it to the Minister of the Interior together
with a report establishing their status as ethnic Greeks. Following an examina‐
tion of the details in the alien’s file and the opinion of the Minister of Public
Order on matters concerning public order and security, the competent de‐
partment of the Ministry of the Interior recommends the acceptance or rejec‐
tion of the naturalization request. The final decision rests with the Minister of
the Interior and the process of naturalization is completed by taking an oath
before the competent Greek consul.
3. Naturalization of descendants of the Holocaust victims
According to the provision of Article 13 paragraph 2, referring to the vic‐
tims of the Holocaust, of Law 4018/2011 as in force today (after its amendment
by Article 142 paragraph 11 of Law 4251/2014), the descendants in straight line
of those who acquire Greek nationality by virtue of paragraph 1 of the said Ar‐
ticle 13 of Law 4018/201124, may submit a request for naturalization in accor‐
dance with the provisions of Article 10 of the CGN25. Their parents –as victims
of the Holocaust– had held the Greek nationality before leaving Greece to Is‐
rael or to other countries.
§4 Honorary acquisition of Greek nationality
This is a sui generis naturalization, because it does not require either a re‐
quest or a declaration by the person concerned. This form of naturalization
was meant for aliens (of Greek or foreign descent) who have offered out‐
standing services to Greece or whose naturalization could serve a special inter‐
est of the country, without the normal conditions of naturalization. The deci‐
sion is issued after a Presidential Decree issued upon a reasoned proposal of
the Minister of the Interior (Article 13 CGN).
24
25
See below C § 4 b΄.
Article 10 CGN regulates the naturalization of ethnic Greeks (see supra Β § 2).
56
C. Re‐acquisition of Greek Nationality
§4 Re‐acquisition upon recovery
These are ad hoc cases of Greek nationality where the applicants were ini‐
tially Greek citizens and have lost the Greek nationality under special circum‐
stances:
a. Article 22 CGN allows women who lost their Greek nationality because of
marriage to aliens to recover that nationality upon a statement/declaration be‐
fore the Coordinator (former Secretary General) of the Decentralized Admini‐
stration or the Greek consular authority of their place of residence. Article 23
provides that children born to Greek mothers, who have automatically lost
their Greek nationality from the moment of their recognition or legitimation by
their alien fathers, may also recover the Greek nationality upon a statement be‐
fore the Coordinator of the Regional Authority or the Greek consular authority
of their place of residence. Their single and minor children on the date of the
statement become Greeks.
b. According to the provision of Article 13 paragraph 1 of Law 4018/2011, as
in force after its amendment by Article 142 paragraph 11 of Law 4251/2014,
citizens of Israel (or of other countries) of Jewish origin, as evidenced by offi‐
cial documents, who were born until May 9, 1945 in Greece and are still alive,
can recover their Greek nationality after submitting a relevant request to the
Greek Consulate of their place of residence, provided that they had acquired
the Greek nationality by birth, which in the meantime was lost for any reason.
In such cases Greek nationality is granted by the Minister of the Interior at the
request of the interested party to the Greek Consulate of his/her place of resi‐
dence, accompanied by documents showing the previous Greek nationality
acquired by birth. Greek nationality is acquired by the interested person after
taking a solemn oath before the Greek consular authority of the place of his/her
residence in accordance with the provisions of Article 9 CGN.
§5 Re‐acquisition by restoration
Common Ministerial Decision No 106841/1982 as subsequently amended
provides for the re‐acquisition of Greek nationality. In the context of national
reconciliation policy Greek political refugees (as well as their spouses and
children) deprived of their nationality during the years of civil war (1945‐
1949), may re‐acquire it, upon submission of a relevant request before the
competent Greek consular authority.
D. Loss of Greek Nationality
The loss of Greek nationality results from any of the situations listed below:
§1 Voluntarily
1. By express will
Greek nationality is lost by express will:
a. By adoption (Article 20 CGN); a Greek who has not attained the age of
majority and is adopted by a foreign national may, by an application of the
57
adopting parent, lose the Greek nationality, if, additionally, he/she acquires the
nationality of the foreign state.
b. By the acquisition of a foreign nationality (Article 16 paragraph 1 (a)
CGN); Greek nationality may be lost by a person who becomes a naturalized
citizen of another country. The loss of nationality occurs only after a special
permission of the Minister of the Interior. If such permission is not granted, the
interested person continues to be Greek and probably ‘binational’.
c. When a Greek citizen joins the civil service of another country, if his/her
position requires him/her to acquire the nationality of that state (Art 16 para‐
graph 1 (b) CGN); the loss of nationality is subject to the prior permission of
the Minister of the Interior.
d. By a Greek citizen possessing more than one nationalities (Article 16
paragraph 2 CGN); Greek nationality may also be rejected by a “plurinational /
binational” Greek citizen, again by permission.
In the aforementioned (b) and (c) cases the loss of Greek nationality is
purely personal and affects only the individual in question, having no effect
whatsoever on the nationality of his/her children. The decision is made by the
Minister of the Interior subsequent to a reasoned opinion of the Council of Na‐
tionality and is published in the Official Gazette.
Also, in the aforementioned (b), (c) and (d) cases, permission is never
granted if the applicant is subject to a military obligation or is prosecuted for a
felony or misdemeanor. Article 16 CGN reflects the constitutional provision of
Article 4 paragraph 3 (2) stating that the loss of Greek nationality is a result of
either the free will of the person to become a national of another state or a con‐
sequence of the service that he/she has offered to a foreign country contrary to
Greek national interests.
2. By renunciation
a. Renunciation (Article 18 CGN) of Greek nationality is permitted, pro‐
vided that the interested party is an adult, he/she declares that a genuine bond
between him/her and the country has ceased to exist and that he/she resides
abroad. A declaration before the Greek consul of his/her place of domicile or
residence, followed by the permission of the Minister of the Interior are re‐
quired.
b. The minor children of a naturalized Greek may renounce the Greek na‐
tionality if they: (i) retain the nationality that they had at the time of naturaliza‐
tion of their parent, (ii) declare to the mayor or to the Greek consular authority
of their place of domicile or residence their wish in this regard, within one year
from the day they attain majority (Article 19 CGN).
3. By declaration
An alien woman, who became a Greek citizen because of her marriage be‐
fore the entry into force of Law 1438/1984 and has retained her foreign nation‐
ality, may lose her Greek nationality, provided she submits a declaration to
that effect before the Coordinator of the Decentralized Administration or the
Greek consular authority of the place of her domicile or residence (Article 21
58
CGN).
It should be noted that before the entry into force of Law 1438/1984, (8 May
1984), which implemented the constitutional principle of gender equality in na‐
tionality matters, an alien woman marrying a Greek man acquired the Greek
nationality automatically, unless she expressed her will to the contrary prior to
the wedding, keeping her previous nationality. The wedding had to be valid
according to the rites of Greek Orthodox Church.
§ 2 Forfeiture
a. A Greek who has accepted a public service office of a foreign state and,
ignores an invitation issued by the Minister of the Interior addressed to
him/her to cease holding that office within a given time due to its inconsistency
with the interests of the country, forfeits the Greek nationality (Article 17 para‐
graph 1 (a) CGN).
b. A Greek who, while living abroad, has committed acts beneficial to a for‐
eign state but incompatible with the quality of a Greek citizen and contrary to
the interests of Greece, forfeits the Greek nationality (Article 17 paragraph 1 (b)
CGN).
c. A novice or monk who automatically acquires ‐according to the provision
of Article 105 paragraph 1 point (c) of Constitution26‐ the Greek nationality
from the moment he received of his tonsure and his name was written in the
Athonian Register in Aghion Oros (Mount Athos) as novice or brother, forfeits
the Greek nationality when he abandons permanently and without any doubt
the holy Athonian community (Article 17 paragraph 1 (c) CGN).
The aforementioned cases of forfeiture of the Greek nationality require a de‐
cision of the Minister of the Interior following a reasoned and concurring opin‐
ion of the Nationality Council.
E. Additional remarks
§1 Marriage
Marriage no longer entails the acquisition or loss of Greek nationality (Arti‐
cle 30 CGN). Since 1984 (when Law 1438/1984 came into force), the principle of
gender equality was introduced in nationality matters, and in contrast to the
situation prior to that date a female alien who marries a Greek citizen does not
automatically acquire the Greek nationality. Nor does a woman who marries a
foreign national automatically lose her Greek nationality, as was the case be‐
fore that date.
§2 Procedural issues
The Minister of the Interior is the sole competent authority to rule on any
nationality matter either concerning jurisdiction and evidence or any other is‐
sue (Article 25 paragraph 1 and Article 26 CGN). Certificates of nationality
may be supplied by the Municipality in which the applicant is registered (Arti‐
cle 27 paragraph 1 CGN) but not by the Greek consular authorities. The Coor‐
26
See supra B § II c΄.
59
dinator (former Secretary General) of the Regional Authority may also issue
documents determining the acquisition or non‐acquisition of Greek nationality
by persons requesting that their nationality be determined. Such documents
are principally given to aliens of Greek descent originating from the Black Sea
provinces of Turkey, the former Soviet Union etc., whose ancestors or them‐
selves had lived in those territories and who have recently settled in Greece.
Articles
L’Examen Périodique Universel: Un Nouvel Mécanisme
de Promotion des Droits de l’Homme
dans le Cadre des Nations Unies
Antonios Bredimas
Emeritus Professor, National and Kapodistrian University of Athens
1. Introduction
L’Examen Périodique Universel (désormais EPU) constitue le mécanisme
principal du Conseil des Droits de l’Homme (CDH). Le Conseil fut créé en
20061, en tant que réaction à une attitude et à un comportement de la Commis‐
sion des Droits de l’Homme, considérée comme sélectif, politisé et partial, qu’il
a remplacé. L’adoption de l’EPU par le Conseil visait précisément à combatte
cette politisation de la Commission des D.H. 2, sans que cela signifie qu’on n’a
pas retenu certains éléments de cette dernière.
Le but principal de l’EPU est de trouver dans quelle mesure tous les États
membres des Nations Unies répondent à leurs obligations dans le domaine des
droits de l’homme3. Mais, à la différence des Comités des Nations Unies rela‐
tifs aux droits de l’Homme (Human Rights Treaty Bodies), où la vérification
du respect de ces droits est réalisée par des experts indépendants, dans le cas
de l’EPU ce sont les États même qui prennent en charge cette tâche (peer re‐
view). Et cela crée une certain doute si les mêmes facteurs politiques d’autan
ne reviennent sous la forme soit de la manifestation d’une réception favorable
des rapports des États examines, en évitant en même temps d’exercer une
quelconque critique; soit, à l’inverse, sous la forme d’interventions virulentes
ou même dans des buts politiques généraux, ou, le plus souvent, en raison des
intérêts nationaux des États intervenants.
Dans les lignes qui suivent seront examinés tout d’abord les traits généraux
de l’EPU, à savoir les lignes directrices principales et les règles procédurales
(II), et, ensuite, le cadre normatif de l’EPU et la nature de ses recommandations
(III). Un dernier paragraphe sera consacré au rôle des participants de caractère
non ‐ étatique (stakeholders), avec un intérêt particulier pour les Organisations
Non ‐ Gouvernementales (ONG) s’activant dans le domaine des droits de
l’homme (IV).
Résolution 60/251 (15.3.2006) de l’A.G. des N.U., A/RES/60/251 Texte dans : International
Human Rights Review, 2006, p. 1195.
2 Ainsi que remarqué « le terme de politisation était devenu un anathème bien commode
pour critiquer autrui, en masquant plus ou moins adroitement ses propres arrières – pensées ».
Chetail, V., « Le Conseil des Droits de l’Homme des Nations Unies, l’an I de la Réforme », Refu‐
gee Survey Quarterly (2007): pp. 105‐106.
3 Sur la contestation autour de contenu précis de ces obligations, v. infra, texte note (50) et s.
1
62
2. Les traites généraux de l’EPU
2.1. Les lignes directrices de base
Ces lignes sont les suivantes : a) tous les États membres des Nations sont
soumis à cette procédure, et non seulement les États ‐ membres du Conseil des
droits de l’homme (47 membres) ; et b) la procédure doit être objective, trans‐
parente, non ‐ sélective, non ‐ confronte ‐ rationnelle et non ‐ politisée. Et les
principes sur lesquels toute la procédure est basée sont : l’universalité,
l’indivisibilité, l’interdépendance et l’entre de tous les droits de l’homme : ci‐
vils et politiques, ainsi qu’économiques, sociaux et culturels4; la coopération et
le dialogue interactif, le traitement égale des tous les États; la complémentarité
avec d’autres mécanismes, de manière à ce qui le produit de l’EPU constitue
une valeur ajoutée aux mécanismes existants des droits de l’homme des Na‐
tions Unies, et, enfin la participation à la procédure de l’EPU de tous les fac‐
teurs (stakeholders) qui ont une relation avec l’examen concret. Certaines re‐
marques sont d’ailleurs nécessaires:
• En ce qui concerne l’universalité de l’examen, celui comprend tous les
États, indépendamment de la ratification de leur part de toutes les conventions
des droits de l’homme des Nations Unies, comme p.ex. les États‐Unis qui n’ont
pas ratifié le Pacte sur les droits économiques, sociaux et culturels, ou la Chine
qui n’a pas ratifié le Pacte sur les droits civils et politiques.
• Quant ou caractère non ‐ politique de l’EPU, la résolution pertinente de
l’Assemblée Générale des N.U. a défini celui‐là comme « un effort de coopéra‐
tion basé sur le dialogue ». De l’autre côté, cependant, le caractère «interétati‐
que de l’EPU ne manque pas d’avoir des répercussions sur le caractère «politi‐
que» de cette procédure. Cela se manifeste, tantôt, et surtout, par la formula‐
tion de la part des États intervenants de commentaires favorables à l’État exa‐
miné ou, tout, au moins, de commentaires qui évitent à toucher des aspects né‐
gatifs de la situation des droits de l’homme au sein de ce dernier. C’est le cas,
p.ex., des États‐Unis en relation avec l’examen de la Russie ou de la Chine, ain‐
si que de la Chine vis‐à‐vis de la Russie, la France et le Royaume‐Uni, tous
membres permanents du Conseil de Sécurité de N.U.5; tantôt, cela se manifeste
par l’exercice d’une critique, parfois virulente, comme celle de Cuba à l’égard
des pays Occidentaux, et surtout des États ‐ Unis, tandis que les pays en voie
de développement font souvent l’éloge des efforts de Cuba dans le domaine de
la protection des droits économiques et sociaux, évitant, en même temps, de
toucher à la situation, dans ce pays, des droits civils et politiques6. Attitude ex‐
Sur l’EPU en relation avec les droits économiques et sociaux, v. en particulier, Duggan‐
Larkin, J., ‘‘Can an Intergovernmental Mechanism Increase the Protection of Human Rights? The
Potential of the Universal Periodic Review in Relation to the Realisation of Economic, Social and
Cultural Rights’’, Netherlands Quarterly of Human Rights (2010), pp. 548 et s.
5 Tomuschat, C., Universal Periodic Review. A New System of International Law with Spe‐
cific Ground Rules? Essays in Honour of Judge Bruno Simma (Oxford: Oxford University Press,
2011), p. 619.
6 Ibid.
4
63
pliquée par le fait que Cuba exprime la résistance de pays du Tiers ‐ Monde
vis‐à‐vis les États‐Unis7. Par ailleurs, certains États formulent, par leurs ques‐
tions, des critiques à l’égard de l’État examiné, motivés par des intérêts natio‐
naux, prenant, en même temps, le soin de se tenir dans un cadre normal de re‐
lations.
2.2. Les règles procédurales
L’examen de chaque État se fait par intervêles de 4 ans. Il est effectué par le
Groupe de Travail (G.T.) composé de la totalité des États membres du Conseil
des D.H., mais, ce qui est très important, c’est que tous les États membres des
Nations Unies peuvent y intervenir. L’examen a lieu sur la base de trois docu‐
ments : le premier est le Rapport soumis par l’État examiné, qui est rédigé sui‐
vant les Lignes Directives (Guidelines) formules par le Conseil de D.H.8.
Le second document contient la compilation d’informations provenant des
divers organes des Nations Unies, tels que les Human Rights Treaty Bodies9,
tandis que le troisième document est rédigé par l’Office du Haut Commissaire
des Nations Unies pour les droits de l’homme, document qui constitue une
compilation des informations provenant de sources à l’extérieur des Nations
Unies, comme les ONG (nationales ou internationales), la Commission Natio‐
nale pertinente des droits de l’homme, ainsi que les organisations régionales,
telles que la Conseil de l’Europe, toutes ces organisations définies sous le nom
des « facteurs » (stakeholders).
L’examen consiste à un dialogue entre l’État examiné et les autres États par‐
ticipants, dialogue qui dure 3 heures seulement, cette durée considérée insuffi‐
sante pour une discussion substantielle de chaque cas. Dans le même souci
d’économie de temps, les États qui interviennent n’ont pas à leur disposition
que 3 minutes, durée également insuffisante. On a même réduit cette durée de
3 à 2 minutes en raison de l’augmentation spectaculaire des États qui inter‐
viennent d’un cycle d’examen à l’autre. Tel est le cas, p.ex., de la Grèce qui a
eu, lors de son examen, 48 interventions lors du premier cycle et 76 lors du
deuxième. Ces limites extrêmement rétrécies de temps empêche, certain fois,
les États d’effectuer des interventions, fait qui vicie l’esprit du dialogue10.
Après la fin de l’examen, le Group de Travail rédige un rapport, qui com‐
prend un certain nombre de recommandations (sur lesquelles je reviendrais
plus loin) et est transmis à la Plénière du Conseil des D.H., qui l’adopte,
d’habitude, tel quel. Il est prévu, en même temps, que l’État examiné doit, lors
du cycle suivant d’examen, de présenter les mesures qui a adopté, relativement
aux engagements qu’il a pris volontairement, pour leur réalisation11. La Grèce,
Ibid.
Human Rights Council, Decision 6/102, Follow‐up to HRC Resolution 5/1, 27.9.2007. Ces
Guidelines concernent également les deux autres sources d’information.
9 www.ohchr.org/EN/HR Bodies/UPR%5CKMSession5.aspx
10 Abebe, A. M., “Of Shaming and Bargaining: African States and the Universal Periodic Re‐
view of the United Nations Human Rights Council”, Human Rights Law Review (2009), p. 13.
11 Human Rights Council, Resolution 16/21, Review of the functions of the Human Rights
7
8
64
p.ex., a présenté ces mesures lors du deuxième cycle, en 2014, tandis qu’elle
doit soumettre un rapport relatif lors du troisième cycle, en 2018.
3. Le cadre normatif de l’EPU et le caractère de ses recommandations
3.1. Le cadre normatif
Le cadre normatif est constitué par la totalité des droits de l’homme adoptés
dans le cadre des Nations Unies, à savoir : la Charte des Nations Unies, la Dé‐
claration Universelle des D.H. et toutes les conventions conclure au sein des
Nations Unies (Pactes etc.) que les États membres ont ratifié12. Cette réglemen‐
tation est susceptible d’un certain nombre de remarque :
• Tout d’abord, en ce qui concerne la Charte des Nations Unies, il est bien
connu que ses dispositions sont, d’une part, juridiquement obligatoires, mais,
d’autre part, elle ont un caractère très général (article 1, et 55). Ce qu’on entend
par là n’est pas en fait déterminé de façon claire. Auparavant, sous la Commis‐
sion des D.H., on avait accepté qu’elle avait la compétence d’examiner « a
consistent pattern of gross violations of human rights ». Mais, cette position a
changé depuis la Résolution de l’A.G. des N.U. (2005), qui fait référence à
l’obligation des États “to actively protecting and promoting all human rightsʺ,
élargissent ainsi considérablement le champ d’action du Conseil de D.H. dans
le cadre de l’EPU. Mais, même cette nouvelle formule laisse une certaine marge
d’incertitude en relation avec la question de la sécurité des violations des
droits de l’homme pour lesquelles le Conseil des D.H. est compétent. Cette
question ne peut être résolue que seulement par la pratique du Conseil.
• Concernant la Déclaration Universelle des Droits de l’Homme, on a, à
juste tire, remarqué que la Déclaration contient des règles qui ne reflètent pas
toujours le droit international coutumier, et, par conséquent, elles n’engagent
pas sur ce point les États. Cela est particulièrement vrai, en relation avec les
droits économiques et sociaux13. On a cependant observé que, en ce qui
concerne spécifiquement et exclusivement les travaux de l’EPU14, les normes
mentionnées dans la Déclaration constituent de principes généraux de droit, et
ceci ne doit pas créer de problèmes au niveau juridique, du moment que les re‐
commandations de l’EPU ne sont pas juridiquement obligatoires15.
• Les conventions internationales des droits de l’homme conclues au sein de
l’ONU engagent seulement les États qui les ont ratifiées. Dans le cadre de
l’EPU, cela pose le problème du respect du principe «pacta sunt servanda», qui
prescrit que les États ne doivent pas être examinés sur la base de convention
qu’ils n’ont pas ratifiée. Dans la pratique de l’EPU, cependant, plusieurs fois
les États intervenants posent de questions relativement à l’application par
Council, U.N. Doc. A/HRC/RES/16/21 (12.4.2011).
12 Résolution 5, 1 § 1.
13 Op.cit., p. 613.
14 Tomuschat, op.cit., p. 612.
15 Ibid.
65
l’État examiné des conventions ne l’engageant pas Or, on a constaté que l’État
examiné avance très rarement une objection sur ce point16. Un exemple très ca‐
ractéristique est celui de la Chine, qui n’a pas refusé de répondre à des ques‐
tions portant sur l’application des dispositions du Pacte sur les droits civils et
politiques, qu’elle n’a pas, pour le moment, ratifié.
Si cette pratique est vraie au niveau des cas concrets de l’examen, il ne reste
pas moins que certains États –surtout africains– ont exprimé, à un niveau gé‐
néral, leur opposition à cette situation. On a remarqué, à propos de ces objec‐
tions, que l’universalité des droits de l’homme impose à ce qu’on ne fasse pas
de distinction entre les États qui ont pris l’engagement et les autres qui ne l’ont
pas pris. Cette non – distinction pourrait être fondée sur la Déclaration Univer‐
selle d.h. en tant que cadre normatif, du fait qu’elle constitue le fonds commun
de droits civils, politiques, économiques et sociaux, au respect duquel aucun
État ne pourrait se soustraire, indépendamment du fait qu’il ait ratifié ou non
tel ou tel traité17.
3.2. Le caractère des recommandations
Les recommandations adoptées dans le cadre de l’EPU ont indubitablement
un caractère non ‐ juridique, n’engageant pas l’État auquel elles s’adressent. Ce
dernier peut, soit les accepter, soit les rejeter, tandis qu’il y a une troisième
possibilité, celle de différer sa réponse, en raison des difficultés qu’il encoure
lors de la procédure inter active devant le Group de Travail. Il est cependant
obligé de donner une réponse –positive ou négative– jusqu’à la prochaine ré‐
union du Conseil des D.H.18.
Ce dernier doit noter, dans son rapport sur l’EPU de chaque État, non seu‐
lement les recommandations ayant été acceptées par l’État, mais aussi celles
qui furent rejetées. Cependant, les réactions de certains États (non ‐ occiden‐
taux) ont conduit à une espèce de compromis, dans le sens que “it was agreed
that recommendations will not he included in the section listing final conclu‐
sions and recommendations of the UPR Working Group. Rather, the para‐
graph containing the recommendation or set of recommendations rejected by
the state under review will simply be identified in that section”19.
Un intérêt particulier, relativement aux recommandations, présente la for‐
mulation de la Résolution 5/1 du Conseil des D.H. qui prévoit que : « Expres‐
sion qui laisse entendre que l’EPU n’est pas tellement efficace qu’on le prétend,
et qu’il existe, ainsi, un risque de ne pas être qu’une « exercice théorique »20.
Un dernier point, enfin, qui doit être souligné en relation avec les proposi‐
tions / recommandations, est qu’elles ne constituent pas – comme c’est le cas
des recommandations des Human Rights Treaty Bodies – le produit de
Ibid.
Fassassi, I., « L’Examen Périodique Universel devant le Conseil des Droits de l’Homme des
Nations Unies », Revue Trimestrielle des Droits de l’Homme (2009), pp. 746‐747.
18 Résolution 5, 1 § 32.
19 Abebe, op.cit., p. 15.
20 Fassassi, op.cit., p. 50.
16
17
66
l’organe, à savoir de Conseil des D.H., mais sont considérées comme des pro‐
positions faites par les États concrets dans leur qualité privée souveraine. Cela
signifie, entre autres, que chaque recommandation spécifique ne peut être
considérée comme implique nécessairement l’approbation de tous les membres
du Group de Travail21.
4. Le rôle des ONGs et des systèmes régionaux de protection des droits de
l’homme
Le rôle des ONGs, et en général de tous les « facteurs » (stakeholders), est
particulièrement important pour la procédure de l’EPU, dans la mesure où il
contribue à équilibrer le rapport de l’État examiné, dont l’objectivité est sou‐
vent contestée. Bien que la majorité des États considère l’EPU comme une pro‐
cédure consentante et coopérative entre États, la Recommandation 60/251 de
l’Assemblée Générale des N.U. a maintenu, pour cette procédure, les modalités
générales sur la participation efficace des ONGs à la Commission des Droits de
l’Homme et au Conseil Économique et Social de l’ONU22.
En réalité, cependant, le fonctionnement de l’EPU indique l’existence d’une
réduction du rôle des ONGs. Si leur participation dans l’EPU est commune‐
ment admise, c’est l’étendue de cette participation qui fut l’objet de confronta‐
tions entre les États, avec le Group Africaine, p.ex., de soutenir que leur rôle
devrait se limiter à leur participation à la préparation du rapport de l’État
examiné. Mais, même si cette proposition ne fut pas acceptée, et il leur est
permis d’assister à la procédure devant le Group de Travail, on ne s’est pas
mis d’accord, dans les textes pertinents, sur la possibilité de faire des déclara‐
tions ou de soumette des questions lors de cette procédure23.
De l’autre côté, les ONGs ont la possibilité d’intervention dans cette procé‐
dure, intervention qui peut se manifester de diverses manières :
• Les gouvernements des États examinés sont encouragés à permettre aux
ONGs le participer à la préparation de leurs rapports nationaux. La plupart
des ces rapports, ou la présentation orale, indiquent une participation considé‐
rable des ONGs à cette préparation ; mais cela n’est pas considéré comme satis‐
faisant, étant donné que les rapports ne mentionnent pas souvent les ONGs
qui ont participé, le nombre des consultations et leur résultat24. Cette faiblesse
ne semble pas pouvoir être remédiée dans la pratique, du fait que les États
examinés n’y sont pas questionnés par leurs pairs, tandis que, dans le cadre de
la Plénière du Conseil des D.H., peu sont les NGOs qui soumettent des ques‐
tions y relatives25.
• Les ONGs peuvent certainement faire des observations relativement aux
rapports nationaux par l’intermédiaire de l’Office du Haut Commissaire des
Abebe, op.cit., p. 16.
Résolution 31/1996, et Abebe, op.cit., p. 25‐26.
23 Op.cit., p. 20.
24 Op.cit., p. 28.
25 Ibid.
21
22
67
N.U. pour les droits de l’homme. Mais, ce dernier doit inclure toutes ces obser‐
vations de toute provenance dans un texte de compilation que ne doit pas dé‐
passer les dix pages, situation qui aboutit à l’exclusion d’une grande partie de
l’information. Pour remédier à ce problème, l’Office du Haut Commissaire a
accepté de reproduire le texte intégral des contributions des ONGs dans la
Webside destiné à l’EPU26.
• Les ONGs peuvent conduire leurs propres réunions, parallèlement et en
même temps, avec celles de l’EPU et communiquer leurs observations aux re‐
présentants des États participant à l’EPU27.
• Tandis que les ONGs ne peuvent participer, comme il a été déjà mention‐
né, au dialogue interactive au sein du Groupe de Travail, elles ont la faculté de
participer à la Plénière du Conseil des D.H., en relation avec l’examen du ré‐
sultat des travaux du Groupe. Ce signifie qu’elles peuvent faire des commen‐
taires généraux avant l’adoption du rapport final par le Conseil. Ceci est im‐
portant pour les ONGs28, étant donné qu’elles ont à leur disposition 20 minu‐
tes, chacune, pour développer leurs positions29.
Cependant, même cette réglementation favorable a crée des problèmes,
parce qu’il y a eu des oppositions entre États sur ce que cette terme « commen‐
taire généraux » signifie vraiment, étant donné que certains ONGs ont utilisé
ce droit pour faire la critique de la situation des droits de l’homme dans l’État
examiné d’une manière générale. Certains États ont prétendu que le terme
« commentaires généraux » signifie que les ONGs ne peuvent faire des com‐
mentaires sur un État spécifique (State specific comments), et ils ont, dans un
nombre de cas, interrompu l’intervention de l’ONGs, sans pourtant que les
membres du Groupe de Travail puissent résoudre ce problème.
Les ONGs se sont montrés, d’habitude, plus critiques vis‐à‐vis les États
examinés qu’étaient, en même temps, membres du Groupe de Travail. Elles
proposent, par ailleurs, des moyens par lesquels les États examinés qui rejet‐
tent des Recommandations concrètes. Il semble, cependant, qu’un pourcentage
des États relativement élevé répondent, dans leurs remarques conclusives, aux
questions posées par les ONGs30.
5. Conclusions
La création par les Nations Unies du Conseil des D.H. et l’adoption de
l’EPU en tant que son «bras fort» pour la réalisation de ses buts, vise à redési‐
gner les méthodes de l’ONU concernant sur la promotion des droits de
l’homme. Tandis que les grandes conventions de l’Organisation sur les droits
de l’homme et leur application par les Human Rights Treaty Bodies ont en ef‐
fet contribué grandement à cette promotion, on a pris conscience que ceci n’est
Op.cit., p. 26‐27.
Op.cit., p. 27.
28 Duggan‐Larkin, op.cit. (note 4), p. 554.
29 Sweeney, G., Saito, Y., “An NGO Assessment of the New Mechanisms of the U.N. Human
Rights Council”, Human Rights Law Review (2009): p. 216, Duggan & Larkin, op.cit., p. 555.
30 Sweeney & Saito, op.cit., p. 217.
26
27
68
pas suffisant. Il est nécessaire que l’amélioration de la situation des droits de
l’homme se fasse “on the ground”.
Et ce progrès ne peut pas s’effectuer sans le consentement des États. Ce qu’il
faut donc est l’existence d’un dialogue politique entre les États sur une base
d’égalité, qui pourra modérer les réactions de plusieurs États relativement à
certains problèmes des droits de l’homme sensibles pour leur politique inté‐
rieure ; et qui sera en mesure d’établir un environnement et une culture, qui
minimisera leurs peurs concernant les interventions dans leurs affaires inté‐
rieures. La question qui se pose est si, sur la base de ce qu’on a exposé dans les
pages précédents, on pourrait affirmer que le but de l’EPU est atteint, ou, tout
au moins, si des pas substantiels ont été faits dans cette direction.
La réponse semble, pour le moment, être ambiguë : ou constate, d’une part,
une tendance des États qui prennent soin de faire un dialogue « non ‐
confronctionnel », dans la plupart des cas au moins, dialogue combiné, plu‐
sieurs fois, avec l’expression de commentaires favorables sur l’avancement des
droits de l’homme. Et avec l’État examiné d’accepter, dans la plupart des cas,
les recommandations des ses pairs. De l’autre côté, cependant, d’autres fac‐
teurs viennent influencer, c’est‐à‐dire rétrécir ce dialogue, sinon l’écarter. Ain‐
si, dans plusieurs cas, la « solidarité » entre les États membres d’une même or‐
ganisation régionale, contribue à la dégradation du dialogue, dans le sens
qu’ils évitent à faire des commentaires, voire des critiques, là où des raisons
évidentes l’imposent. Dans le même sens fonctionnent les relations entre les
Grandes Puissances, membres du Conseil de Sécurité des Nations Unies, cette
fois non pas pour des raisons de « solidarité », mais pour des raisons d’intérêts
politiques réciproques. En même temps, les limitations temporelles existent
constituent un obstacle sérieux à une discussion plus élargie et plus profonde
des questions spécifiques des droits de l’homme.
Enfin, le fait que l’EPU constitue principalement un outil de dialogue interé‐
tatique a pour conséquence que le rôle que les ONGs pourraient jouer est ré‐
tréci considérablement, vu qu’elles pourraient, au‐delà des rapports étatiques,
donner une description plus fidèle de la situation des droits de l’homme “on
the ground”.
The Complaint Mechanisms under the
United Nations Human Rights
Treaties and the Jurisprudence of the Committees
Paraskevi Naskou‐Perraki
Ret. Professor, University of Macedonia
1. Introduction
The UN Charter in its Preamble ‘’reaffirm faith in fundamental human
rights, in the dignity and worth of the human person, in the equal rights of
men and women’’… In a series of provisions1, the Charter underlines the im‐
portance it attaches to these rights, and it is no coincidence that their protection
is one of the three purposes2 of the Organization, which is, among others, the
achievement of international cooperation in solving international problems by
ʺpromoting and encouraging respect for human rights and fundamental free‐
doms for all without distinction as to race, sex, language or religion.ʺ
The Charter does not specify human rights and does not establish a specific
mechanism to ensure their implementation by its member States. The State is
initially the guarantor and protector of human rights; governments are not en‐
titled to interfere with the internal affairs of another State (according to cus‐
tomary rule governing relations between States), while Article 2, 7 of the Char‐
ter states that the UN itself should not intervene in matters that are essentially
within the domestic jurisdiction of any State.
It is worth noting, however, that the Security Council proclaimed unani‐
mously in 1992 that the international community ʺcan no longer allow the
promotion of fundamental rights to stop at national bordersʺ, while the 1993
Vienna Declaration stipulated, inter alia, that ʹʹ the promotion and protection of
human rights is a matter of priority for the international community.ʹʹ3
Also, the UN General Assembly reaffirmed4 that ʺthe aim of the UN and the
duty of all member States is to promote and encourage respect for human
rights and fundamental freedoms and to remain vigilant about human rights
violations anywhere and if they take place.ʺ In 2005, the final outline of the
World Summit underlined the responsibility of all States to respect human
rights and fundamental freedoms for all and recognized human rights as UN
core values and principles. At the same time, the UN General Assembly
adopted a significant number of core international treaties that the member
States ratified and implemented within, nine of which are of particular impor‐
tance because they include a mechanism to monitor their implementation
through a Committee. Individuals or group of people living in the above States
See articles 8, 13.b, 55.c, 62.2 and 76.c of the Charter.
See article 3.1 of the Charter.
3 See the Preamble of the Vienna Declaration and Programme of Action on Human Rights,
adopted June 25.1993.
4 GA Res 48/125, 1993.
1
2
70
have the possibility to submit a complaint/communication against the State
that violates their rights.
2. The core International Treaties
The core International Treaties by the year they adopted by the General As‐
sembly of the UN are the following:
1. The Convention on the Elimination of All Forms of Racial Discrimination5
(CERD),
2. The International Covenant on Economic, Social and Cultural Rights6
(CESCR),
2.1 The Optional Protocol to the Covenant on Economic, Social and Cultural
Rights 7,
3. The Covenant on Civil and Political Rights8 (CCPR), with two Optional Pro‐
tocols:
3.1 The Optional Protocol to the International Covenant on Civil and Political
Rights9
3.2 Second Optional Protocol to the International Covenant on Civil and Politi‐
cal Rights aiming at the abolition of the death penalty10,
4. The Convention on the Elimination of All Forms of Discrimination against
Women11 (CEDAW),
4.1 The Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women12,
5. The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment13 (CAT),
5.1 The Optional Protocol to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment14,
6. The Convention on the Rights of the Child15 (CRC), with three Protocols,
GA Res 2106 (XX), March 7, 1965, in force January 4, 1969. Greece ratified it with L.O.
494/1970, O.J. Α’ 77.
6 GA Res 2200 A (XXI), December 16, 1966, in force January 3, 1976. Greece ratified it with the
L. 1532/1985, O.J. Α’ 45.
7 GA Res 63/17, December 10, 2008, in force May 5, 2013. Greece has not ratified it.
8 GA Res 2200 A (XXI), December 16, 1966, in force March 23, 1976. Greece ratified it with the
L. 2462/1997, O.J. Α’ 25.
9 GA Res 2200 (XXI), December 16, 1966, in force March 23, 1976. . Greece ratified it with the
L. 2462/1997, O.J. Α’ 25.
10 GA Res 44/128, December 15 Δεκεμβρίου, 1989, in force March 23, 1976. Greece ratified it
with the L.2462/1997, O.J. Α’ 25.
11 GA Res 34/180, December 18, 1979, in force September 3, 1981. Greece ratified it with the L.
1342/83, O.J. Α’ 39.
12 GA Res 54/4, October 6, 1999 in force December, 2000. Greece ratified it with the L.
2952/2001, O.J. Α’ 248.
13 GA Res 39/46, December 10, 1984 in force June 26, 1987. Greece ratified it with the L.
1782/1988, O.J. Α’ 116.
14 GA Res 57/199, December 18, 2002 1984 in force June 22, 2006. Greece ratified it with the L.
4228/2014,O.J. Α’ 7.
15 GA Res 44/25, November 20, 1989 in force September, 2, 1990. Greece ratified it with the L.
2101/1992, O.J. Α΄ 192.
5
71
6.1 Optional Protocol on the Rights of the Child concerning the involvement of
children in armed conflict16,
6.2 Optional Protocol on the Rights of the Child concerning Child labor, Child
prostitution and Child pornography17,
6.3 Optional Protocol on the Rights of the Child on the communication proce‐
dure18,
7. The International Convention for the protection of the Rights of all Migrant
Workers and the Members of their families 19(CMW),
8. The Convention for the Rights of Persons with Disabilities20 (CRPD),
8.1 Optional Protocol to the Convention for the Rights of Persons with Disabili‐
ties 21 and
9. The International Convention for the Protection of all Persons from Enforced
Disappearance22 (CED)23.
Before examining the complaint/communication mechanisms available to
the above international conventions, namely the Committees and how they
work, it should be stressed that all rights, civil, political, economic, social and
cultural, are equally important, international, indivisible and interdependent
and that the theory of three generations of human rights is now out of date,
especially after 2008 and the adoption of the Optional Protocol to the Covenant
on Economic Social and Cultural Rights recognizing an individual complaint
against States that violate their rights contained in the Covenant.
Modern theory believes that it is not possible to achieve genuine and effec‐
tive implementation of civil and political rights without respect for economic,
social and cultural rights, with fair and equal treatment, on the same basis and
with the same emphasis.
3. The Committees
All nine core international treaties have a Committee, which bears the name
of the Convention, as the Committee on the Elimination of Racial Discrimina‐
GA Res 54/263, May 25, 2000 in force February 2, 2002. Greece ratified it with the L.
3080/2002, O.J. Α’ 312.
17 GA Res 54/263, May 25, 2000 in force May, 25, 2002. Greece ratified it with the L. 3625/2007,
OJ Α 290.
18 GA Res 66/138, December 19, 2011 in force April 14, 2014. Greece has not ratified it.
19 GA Res 45/458, December 18, 1990 in force July 1, 2003. Greece has not ratified it.
20 GA Res 61/611, December, 13, 2006 in force May 4, 2008. Greece ratified it with the L.
4074/2012, O.J. Α’ 88.
21 GA Res 61/611, December, 13, 2006 in force May 4, 2008. Greece ratified it with the L.
4074/2012, O.J. Α’ 88.
22 GA Res 61/177, December, 20, 2006 in force December 23, 2010. Greece ratified it with the L.
4268/2015, O.J. Α΄ 141.
23 Greece ratified 8 of the nine International treaties. It has not ratified the Convention for the
protection of the Rights of all Migrant Workers and the members of their families. Greece recog‐
nizes individual complaints in four Conventions, namely Against Torture, the Convention on
Elimination of Discrimination against Women, the Covenant of Civilian Political Rights and the
Convention for the Rights of People with Disabilities.
16
72
tion (CERD), the Committee against Torture (CAT), the Committee on the
Elimination of Discrimination against Women (CEDAW), the Committee on
the Rights of Persons with Disabilities (CRPD), the Committee on Enforced
Disappearances (CED), the Committee on Economic, Social and Cultural
Rights (CESCR), and the Committee on the Rights of the Child (CRC), the
Committee on Migrant Workers (CMW), with the sole exception of the Cove‐
nant on Civil and Political Rights, where the Committee is called Human
Rights Committee (HRC).
The composition of all Committees is uniform. The persons who participate
are of high moral standing and recognized to have competence in the relevant
field of human rights, they are independent experts, elected by States Parties to
each treaty24 and they are nationals of the above States. The members of the
Committee shall serve in their personal capacity, regardless of the States indi‐
cating them, for a period of four years, with the right to be re‐elected25. Each
Committee elects a President, three Vice‐Presidents and one Rapporteur for a
re‐elected two‐year term being always a member of the Committee. The num‐
ber of members of each Committee varies from 10 members in the CAT to 23
members in the CEDAW. In most Committees the number is limited to 18
members.
3.1. The work of the Committees
3.1.1. Examination of Periodic Reports
The main task of each Committee, which meets 2‐3 times per year, is to ex‐
amine the Reports that member States submit periodically26, clarifying how
they comply with the provisions of the Conventions. They identify areas that
require reform, in order to meet the obligations deriving from the provisions of
the conventions The Reports shall be examined in the presence of the represen‐
tatives of the State concerned who may be invited to provide further com‐
ments/information. In addition, all Committees always take note of the parallel
Report, otherwise ʺshadow Reportʺ sent by NGOs or other bodies with advi‐
sory status to ECOSOC, which provide comments and supplementary infor‐
mation on the implementation of the Convention by the particular State.
At a closed meeting, the Committee adopts the concluding observations
containing proposals and recommendations to the State on how to implement
effectively the provisions of the Convention, any omissions and gaps and is‐
sues that it should consider. These concluding observations are serving as a
valuable guide to all States Parties in case they face similar issues.
States Parties may submit their comments to the Committee for each obser‐
Since 2016 Professor Foteini Pazartzi at the Law Faculty of Athens represents Greece at the
Committee on Human Rights.
25 By its resolution 56/280 of 27 March 2002, the General Assembly adopted the Regulations
Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials and
Experts on Mission (ST/SGB/2002/9) whereby the conduct of officials and experts on mission is
regulated with a view to upholding the highest standards of efficiency, competence and integ‐
rity. These regulations are applicable to treaty body members.
26 Every four years or five for the Committee on the Rights of Child.
24
73
vation. Some Committees also adopt guidelines for States on how to submit
their Reports27, and often ask them to send their representatives in the process
of examining their Reports with authority and experience. Concluding obser‐
vations on States Reports are transmitted to ECOSOC together with copies of
the Reports. Reporting States are invited to communicate to their citizens both
the Reports they submit and the final observations in the official language of
the State.
The Human Rights Committee, as well as the CEDAW Committee, adopted
a new procedure that gives rise to some concerns on priorities and can ask the
state to take the necessary action within one year28. If the state does not send
the Report, for example due to weakness, the CEDAW may examine the Re‐
port on the basis of information received from other sources.
3.1.2. General Comments
Each Committee adopts General Comments, interpreting the provisions of
the Convention, taking into account it’s case law. The General Comments ad‐
vise all Parties by analyzing a specific article or a general issue in an extended
and comprehensive fashion. The majority of the General Comments is detailed
interpretation of an article some though address to specific groups; some in‐
clude miscellaneous issues as reservations to the Conventions. A General
Comment is considered as a general statement of law trying to express the
Committees understanding of the content of a particular provision “thus very
useful to the normative substance of international human rights obligations.”
The General Comments are adopted by the Committee with consensus (accep‐
tance) and are addressed to all States Parties in an attempt to make best use of
the provisions of each Convention. Until recently, a large number of General
Comments have been adopted by each Committee29.
3.1.3. Individual complaints / communications
Anyone can lodge a complaint/communication against a State before a
Committee claiming to be a victim of a violation of his/her rights, if he fulfills
two conditions: first, that the State is a party to the Convention or Protocol and
second, where necessary, accepts the Committeeʹs competence to examine in‐
dividual complaints30. Reporting mechanisms are designed to be accessible to
everyone, even if someone is not familiar with legal and technical terms. How‐
ever, a lawyer with the right legal guidance can improve the quality of the
complaint/communication. The UN does not provide legal assistance for these
General Comment 2, Reporting Guidelines, thirteen session, 28 Ιουλίου 1982, of the Com‐
mittee on Human Rights of the CCPR.
28 As in the case of Cyprus where the CEDAW requested immediate notification on issues
concerning violence against women and family violence.
29 The Human Rights Committee until recently has adopted 34, the CESCR 21, the CEDAW
34, the CRPD 7 etc.
30 For example as it is foreseen in the Convention against Torture under art 22 or the Conven‐
tion against Racial Discrimination under art.14 or the Convention on Enforced Disappearance
under art. 31.
27
74
procedures.
A complaint may also be filed by a third party with the consent of the
claimant to be a victim of a violation of rights, a consent not required when the
alleged victim is in prison without access to the outside world or is a victim of
an enforced disappearance. In these cases, the complainant must state clearly
the reasons why the victimʹs consent cannot be provided. The complaint /
communication can be lodged by a person or group of persons.
3.1.3.1. The Content of a complaint
There are instructions on how the complaint should be presented and the
information it should contain31. Basic personal information, as the name, na‐
tionality, date of birth, address, postal and e‐mail and the State against which
is directed are required. It should not be, abusive or incompatible with the pro‐
cedures of each Convention. It should concern a violation that occurred after
the ratification of the Convention or the relevant Protocol.
The applicant must state why he considers the incidents described to be a
violation of articles of the Convention and which articles specifically. He must
also clarify that he has exhausted all local remedies he had used before the na‐
tional authorities and courts. This is particularly important showing that his
claims were initially raised before the competent national authorities, up to the
highest level of jurisdiction, and the applicant was not justified. If any of these
remedies are in progress, pending examination, or are not exhausted in gen‐
eral, reference should be made to the complaint/communication.
Complainants/authors should submit copies of all documents relating to
their claims and their arguments and specific administrative or judicial deci‐
sions on their claims by the national authorities. All documents should be
translated into one of the six official UN languages32 or at least in summary
form. The complaint should not exceed 50 pages other than appendices. The
Office of the High Commissioner for Human Rights (OHCHR) will be able to
communicate if additional information is required and, if requested, it should
be sent immediately. Committee’s concluding observations are made public.
Those who do not wish can ask for their name not to appear. No oral evidence
is submitted.
The reporting period varies according to the Convention. It is important to
be submitted as soon as possible after exhaustion of local remedies. The delay
makes it both difficult for the State Party to respond appropriately to the
Committee and the Committee to thoroughly assess the facts. In cases where
the submission of the complaint is late, the Committee is entitled to declare it
inadmissible.
Thus, it is noticed that over time, some Committees set time limits for sub‐
mitting the complaint/communication. For example, it is considered abusive
according to the Human Rights Committee to lodge a complaint five years af‐
For details, see Individual Complaint Procedures under the United Nations Human Rights
Treaties, Fact sheet No 7 Rev. 2, p. 4 et seq.
32 Which are English, French, Russian, Arabic, Spanish and Chinese.
31
75
ter the local remedies have been exhausted,33 CERD requests to be filed within
six months of the final decision of the national authorities in the case34. The
Committee of CESCR receives complaint within one year of the exhaustion of
local remedies, unless the complainant proves that this was impossible.35. So
does the Convention on the Rights of the Child36.
With regard to the explanations to be given by the States Parties, after the
Committee has forwarded the complaint/communication to them, the rule is to
reply within six months, with the Convention on Enforced Disappearance re‐
questing a four‐month deadline37. It is also taking into account that the com‐
plaint/communication has not been examined by another international body.
3.1.3.2. Procedure before the Committees
By lodging the complaint/communication38, the Committee in question shall
examine whether it should be registered and forwarded it to the State con‐
cerned for comments. There are two stages in the examination of a complaint,
the admissibility stage and the merits stage; at the admissibility stage, it is ex‐
amined whether the complaint/communication fully meets the formal re‐
quirements, while at the merits stage, it is examined whether there has been a
violation of the alleged victimʹs rights.
The Committee shall forward the complaint to the state concerned and the
state may, within the first two months, submit its arguments on the admissibil‐
ity. The applicant has the opportunity to comment on the Stateʹs response.
The Committee considers the case, examining the arguments of both sides.
If the State does not put forward any argument, the Committee will decide, in
spite of all the repeated requests from the Secretariat, on the basis of the com‐
plainantʹs observations. The Committee adopts its “Views” or “concluding ob‐
servations” either finding or not finding a violation.
There are some Committees, which request the following up to concluding
observations. It is important to provide information in their periodic report on
implementation of the recommendations contained in previous concluding ob‐
servations. This is a way to monitor more closely the implementation of some
of their recommendations that they consider urgent, within one or two years.
This is the case with the Human Rights Committee, CAT, CEDAW (in two
years), CERD and CED which have adopted written follow‐up procedures.
3.1.3.3 Interim measures
The interim measures procedure gives each Committee the right to request
the State Party to take steps to avoid irreparable damage to the complainant or
alleged victim in connection with the claims in the case. This can be invoked at
Individual Complaint Procedures under the United Nations Human Rights Treaties, Fact
sheet No 7 Rev. 2, p. 13.
34 Ibid, p. 16.
35 Ibid, p. 22.
36 Ibid, p. 23.
37 Ibid, p. 19.
38 Ibid, p. 6.
33
76
any stage of the process upon request of the complainant provided details for
the necessity of this action. This procedure has been widely applied in cases of
death rowers denounced by the State Party for violating the right to a fair trial,
issues related to impending expulsion or extradition of a foreigner to a country
threatened with torture39, before the Committee examines whether such situa‐
tions are compatible with the Convention.
The same procedure is provided for in the CEDAW40, the CRC41 and the
CED42.
3.1.3.4. Inquiry procedure
The inquiry procedure is applied in cases of grave or systematic violations
by a State Party of rights set forth in the Convention. The Committee may initi‐
ate confidential inquiries, under the condition that State Parties have recog‐
nized the competence of the relevant Committee in this regard. States Parties
may opt out from the inquiry procedure, at the time of signature or ratification
or accession43.
The inquiry procedure44 is foreseen in the CAT45, CEDAW,46 the CRPD47, the
CED48 the CRC49 and the ICESCR50. According to the Optional Protocol to CE‐
DAW, when the Committee receives reliable information on flagrant or sys‐
tematic violation by a State Party of the rights set forth in the Convention, in‐
vites that State Party to cooperate and examine the observations with regard to
information.
The CEDAW examines the gravity of the violations, asks for further infor‐
mation from representatives of the State Party, governmental organizations,
NGOs, individuals, as well as from the UN system. Thereafter, the CEDAW
empowers one or more of its members to carry out an investigation in a speci‐
fied period of time in a secret manner, cooperating with the State Party
throughout the investigation. The investigation may be carried out on the spot
with the consent of the State, while there is the possibility of verbal examina‐
tion of witnesses by ensuring the secrecy of the process.
Gohen J., De l’Affect Juridique de Mesures Conservatoires dans Certaines Circonstances’,
Revue Universelles des Droits de l’Homme (1991), p. 205.
40 Optional Protocol, Art. 5.
41 Optional Protocol to the Convention of the Rights of the children, Art. 6.
42 Art. 30 of the Convention.
43 According to article 28 CAT; article 10 of the Optional Protocol to CEDAW; article 8 of the
Optional Protocol to CRPD; article 13(7) of the Optional Protocol on communications procedure ,
(article 11(8) of the Optional Protocol to ICESCR) by making a declaration that they do not rec‐
ognize the competence of the Committee in question to conduct inquiries.
44 Greece recognizes the inquiry procedure in four Conventions, in the CAT, CEDAW, CRPD
and CED.
45 Article 20 of the Convention.
46 Art. 8 of the Optional Protocol to CEDAW.
47 Art. 6 of Optional Protocol to CRPD.
48Art. 33 of the Convention.
49Art. 13 of the Optional Protocol on Communications Procedure.
50 Art. 11 of the Optional Protocol to ICESCR.
39
77
So far, the inquiry procedure of the CEDAW has being applied in two cases,
Mexico and the Philippines. In Mexico the inquiry procedure started when the
government was accused by NGOs51 of mass murder of young women work‐
ers in the Cuidad Juarez region since 1993, as recorded in the Committeeʹs 2004
Annual Report52. The information received and examined in their merits, ask‐
ing Mexico to cooperate, examine the information and submit comments. The
Committee sent two of its members who fully cooperated with the govern‐
ment, including an onsite visit.
The CEDAW expressed its concern about the persistent and systematic vio‐
lation of womenʹs rights over the last ten years and in its final concluding ob‐
servations called for a series of measures to avoid rape, discrimination, asked
for the cooperation of all actors at local and federal level, cooperation with civil
society and an awakening of society on womenʹs rights. The authorities of the
Cuidad Juarez area were involved immediately and the Mexican government
took action after the international outcry and the extent of the issue. They re‐
formed domestic law accordingly. In 2012, in his regular Report to the Com‐
mittee, Mexico invoked the adoption of measures to investigate and prosecute
crimes, which, as the Committee said, are not considered to be completely ef‐
fective53. The case also came before the Inter‐American Court of Human Rights,
which condemned Mexico for discrimination against women, while stressing
the urgent need to take measures to prevent and compensate the families of
the victims. The question of gender discrimination has been widely discussed
and has led to progressive reform of legislation, but above all trying to change
the attitudes of men towards women.
In a second case, the CEDAW conducted an inquiry following a complaint
received from an NGO in the Philippines54. The State introduced the 2003
(2000) Law, discouraging women to take contraceptives, adopting, in their
opinion, a positive attitude towards life and family planning. Efforts to declare
the Law unconstitutional did not have a success and the NGOs appealed to the
Committee. The Committee has investigated systematically the violation of the
Convention because the ban on contraception has led to a lot of unwanted
pregnancies among young girls as well as illnesses that mainly harm poor
groups of women who lack access to information and modern methods of con‐
traception. According to the Convention55, women are given the right to decide
themselves on the number and spacing of their children they wish to acquire,
as well access to information, education and means to enable them to exercise
these rights, otherwise the inequality between men and women and the stereo‐
types continue. The Committee has made a number of recommendations to the
State.
It concerns two NGOs, the first under the name Equality Now (NYC) and the second Casa
Amiga, sited in the city Ciudad Juarez in Mexico.
52 CEDAW Report, UN Doc. A/59/38, p. 161 et seq.
53 UN Doc. CEDAW/C/OP, 8/PHL/1/2015.
54 According to the art. 8 of the Protocol to CEDAW.
55 Art. 16, 1e CEDAW.
51
78
3.1.3.5 Request for arbitration
The CEDAW foresees56 an additional procedure before the Committee, that
of the arbitration. Accordingly, two or more States Parties may request the
Committeeʹs assistance as an arbitrator, when disputes arising out of the inter‐
pretation or application of the Convention and have not been resolved through
negotiations. A prerequisite for the Committee to exercise this role is the stateʹs
declaration that it is bound by Article 29 (1). In this case, states will have to
agree within six months on how to organize the arbitration; otherwise one of
the Parties may appeal to the UN International Court of Justice in accordance
with the conditions set in its Statute. States Parties may declare that they do
not accept to be bound by Article 29.157, as well in the case of a reservation to
withdraw it, by notifying the UN Secretary‐General58. This process has not
been applied until recently.
4. The Jurisprudence of the Committees
The Jurisprudence of the Committees is of particular interest. The richest of
all is that of the Human Rights Committee, followed by CERD, CEDAW, CAT,
CRPD and CED. We will selectively address some of these assumptions.
4.1. The Human Rights Committee
On the Right to life, protected in article 6, the HRC has considered that the
death penalty should be a measure that applies in very exceptional cases59. In
the Webby Chisanga v. Zambia60.case, the HRC stated that the offense of
armed robbery punishable by death penalty deprives individuals of the bene‐
fits of the most fundamental rights such as the right to life, because it is not ex‐
amined whether the imposition of this exceptional measure is proportionate
with the circumstances of the case.
In the Case of S. Jegatheeswara Sarma v. Sri Lanka61 the HRC considered
that the forced disappearance of a person is a violation of the right to life, and
in the Case Carlos Cabal and Marco Pasini Bertran v. Australia62, stated that
the Stateʹs refusal to separate prisoners with communicable diseases from the
rest can raise issues related to the right to life or cruel, inhuman or degrading
treatment.
Article 7 of the ICCPR proclaims that no person shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment. In the Case of
Jonny Rubin Byahuranga v. Denmark63, the HRC declared that the States Par‐
Art 29 CEDAW.
Art 29, 2 CEDAW.
58 Αrt. 29, 3 CEDAW.
59 General Comment 6, par. 7.
60 No. 1132/2002, 18/11/2005.
61 No. 950/2000, 31/07/2003.
62 No.1020/2001, 19/09/2003.
63 No. 1222/2003, 09/12/2004 The position of the Committee was similar in the Case of Mo‐
hamed Al Jery v. Sweden, concerning his deportation to Egypt.
56
57
79
ties are obliged not to expose individuals to the risk of torture or cruel, inhu‐
man or degrading treatment or punishment when returning them to another
country as a result of extradition or expulsion.
Considering the Omar Sharif Baban v. Australia Case64, the HRC stressed
that the duration of detention, in order not to be arbitrary, should not exceed
the period that the Contracting States can justify adequately. Also, in the Fatma
Zohra Boucherf v Algeria Case65, it recommended that the States Parties can
take measures against detention in complete isolation.
The HRC on several occasions, as in the Case of Raymond Persaud and
Rampersaud v. Guyana66, took the view that long‐term detention in the delin‐
quent wing was not in itself a violation of Article 7. However, it recommended
that States Parties do not place the sentenced in complete isolation67.
With regard to the right to freedom of thought, conscience and religion68, ar‐
ticle 18 of the ICCPR, the HRC has condemned South Korea for violating this
right69, failing to respect the liberty of parents, Jehovahʹs Witnesses to ensure
the religious and moral education of their children in conformity with their
own convictions.
In a case against Cameroon70, the HRC considered the right to liberty and
security of person, as it is guaranteed in article 9 of the ICCPR, and stressed
that the imprisonment of a person in a psychiatric hospital against his will con‐
stituted a violation of Article 9. The complainant was in detention for three
years before trial.
Regarding expulsion of aliens, in a case against Denmark71, the HRC was of
the opinion that States should not put peopleʹs lives at risk when they issue a
decision to extradite or expel in another country. This position was reiterated
in a number of other cases against Sweden72. The HRC condemned Spain73 for
violating the principle of fair trial, guaranteed in article 14 of the ICCPR, criti‐
cizing the courts of the country for lack of objectivity when considering expul‐
sion cases. The accused was deprived of the free assistance of an interpreter
and a lawyer.
Regarding the right to form a family, as protected in article 23 of the ICCPR,
the HRC gave an interesting definition in Benjamin Ngambi and Marie‐Louise
Nebol v. France Case74.
No 1014/2001, 18/09/2003.
No 1196/2003, 27/04/2003.
66 No. 812/1998, 16/05/2006.
67 Case Fatma Zohra Boucherf v. Algeria.
68 Based on article 18 of the CCPR.
69 Case Yeo‐Bum Yoon and Myung‐Jin Choi v. Korea, CN 1321/2004 and 1322/2004, Novem‐
ber 2006.
70 Case Gorji‐Dinka v. Cameroon, CN1134/2002, April 2005.
71 Case Johny Rubin Byahuranga v.Denmark, CN 1222/2003, November 2006.
72 Case Mohammed Alzery v, Sweden CN 1416/2005, November 2006.
73 Case Ronald Everett v. Spain 961/2000, 26/09/2004.
74 Benjamin Ngambi and Marie‐Louise Nebol v. France 1179/2003, 16/07/2004.
64
65
80
4.2. The Committee on the Elimination of Racial Discrimination (CERD)
The Committeeʹs case‐law on racial discrimination is also of interest75. Be‐
fore examining its case law, it is worth highlighting the position of the Interna‐
tional Court of Justice (ICJ) concerning the violation of the CERD by States Par‐
ties. In the Barcelona Traction Case (1970)76, the ICJ underlined that the viola‐
tion of the Convention against racial discrimination created an erga omnes le‐
gal obligation, which means an obligation in every direction. Several decades
after 2002, the CERD Committee considered that the prohibition of discrimina‐
tion was a rule of ius cogens in accordance with Article 53 of the Vienna Con‐
vention on the Law of Treaties77.
In the case of the Oslo‐Norway Jewish Community78, the Supreme Court of
Norway judged a Nazi anti‐Semitic speech legitimate in accordance with free‐
dom of expression. The Committee, examining the communication against
Norway, found violation of Article 4, which condemns “all propaganda and all
organization which are based on ideas or theories of superiority of one race or
group of persons of one color or ethnic origin, or which attempts to justify or
promote racial hatred and discrimination in any form”. The Committee ex‐
pressed the view that the freedom of expression is not absolute and is under
restriction when it leads to racial discrimination. It also found violation of arti‐
cle 6 of the Convention because they did not offer effective protection through
the national tribunals and other State institutions.
In the case of the Turkish Union of Berlin v. Germany, the German former
Senator in the field of economy gave an interview in the most popular news‐
paper of the country, saying that the Turkish population should leave Ger‐
many. The Commission considered that the Senatorʹs words were inspired by
ideas of racial superiority in violation of Article 4 of the Convention79.
In a case against Slovakia, the municipal authorities approved a Roma hous‐
ing plan, but after the reactions of the residents, they canceled it with discreet
reasoning. The Committee considered that their right to housing is guaranteed
on equal terms with the rest of the population and the cancelation of the hous‐
ing plan was in breach of article 5, e, iii, in conjunction with Article 11 of the
International Covenant on Economic, Social and Cultural Rights.
It is noteworthy that in Greece article 4 of CERD led to the adoption of Law
No. 927/1979 which criminalizes incitement to acts of violence or acts that
cause discrimination, hatred or violence against persons of racial or other ori‐
gin.
See among others, Vagias, M., ‘The Convention on the Elimination of Racial Discrimina‐
tion’, in Naskou‐Perraki, P. (ed.) Human Rights, Universal and Regional Protection. Theory and
Jurisprudence, as above, p. 174 et seq.
76 Barcelona Traction Case, ICJ, Recueil, 1970.
77 Rozakis, C., Public International Law, Theory of Sources. (Athens‐Komotini: Ant N. Sak‐
koulas, 1988), p. 239 et seq.
78 The Jewish Community of Oslo et al v. Norway, CN 30/2003, August 2005,CERD/C/67/
D/30/2003, par. 10.4.
79 Case TBB‐Turkish Union in Berlin/Bradenburg v. Germany.
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81
4.3. The Committee on the Elimination of Discrimination against Women
(CEDAW)
The Committee has examined a significant number of cases, some of which
have been found to be inadmissible80. Of the cases that declared admissible, we
will examine the most important ones.
In the case of A.T. v. Hungary81, the applicant claimed to have been a victim
of a number of violations of the Convention, namely article 2 (a), (b), which
embodies the principle of equality of men and women in the national constitu‐
tion or other appropriate legislation and condemns discrimination in all its
forms, article 5 (a), referring to the elimination of prejudices and discrimination
and article 16 on the obligation of the State to take appropriate measures to
eliminate discriminations against women in matters related to marriage and
family life. It also mentioned article 5 (1) of the Optional Protocol for interim
measures pursuant to.
In the communication A.T. claimed that she was living under a regime of
continued violence and that she had been threatened by her husband and fa‐
ther of her two children, one of whom suffered from brain damage. The appli‐
cant argued that the Hungarian Government was unable to offer her protection
from her husband who was physically abusive and that the decision of the
Hungarian District Court to justify their cohabitation in an apartment belong‐
ing to both of them threaded her life and that of her children.
The Commission considered that there had been a violation of Article 2 (a),
(b) and 5 (a) in conjunction with Article 16 of the Convention, because there
was a lack of specific legislation to combat domestic violence, in breach of the
applicantʹs rights and personal security.
Equally important are two cases v. Austria, submitted by the International
Center against Domestic Violence in Vienna, on behalf of the victims. Fatima
and Sahide, Turkish nationals, were bitten by their husbands, while the state,
despite the constant harassment on the part of the victims, did not take the ap‐
propriate measures to protect and prevent the abuse that eventually led them
to death. The Committee therefore considered that Austria had violated arti‐
cles 2 (a) and (b) and article 3, which called on States to take all appropriate
measures to ensure the full development and advancement of women on an
equal base with men, in conjunction with Article 1 of the Convention82, and ac‐
cused Austria of negligence on the part of the responsible authorities for failing
to prevent the murder of women. It called on the country to strengthen the im‐
plementation of its national law against violence and to educate those con‐
cerned in similar issues.
Some for not exhausting local remedies, others for not mentioning the discrimination based
on sex, as in B‐J v. Germany (no 1/2003), Dung Thi Thuy Nguyen v. Holland (no. 3/2004), A.S. v.
Austria (no. 5/2005), Rahime Kayhan v. Turkey (no. 8/2005), N.S.F v. Un Kingdom (no. 10/2005)
and Constance Ragan Salgado v. United Kingdom (no. 11/2006).
81 Α.Τ v. Hungary (no. 2/2003), decision 26.1.2005. See also Hirdaris, B., ‘The CEDAW Deci‐
sion of 26.1.2005’, Nomiko Bima 54 (2006), p. 1182 et seq.
82 Case Fatma Yildirim v. Austria no. 6/2005, Sahide Goekce v. Austria no. 5/2005.
80
82
In two other cases against Bulgaria83, the Committee has examined the vio‐
lence that these women have suffered, violence that has taken various forms
from psychological, emotional and physical abuse. The victim, despite her
education, was not allowed by her husband to work, she was treated as a do‐
mestic assistant rather than as a wife, feeling humiliated and oppressed. In
spite of her constant appeals for assistance and the divorce application she
filed, the judicial and police authorities showed such a delay that in some cir‐
cumstances she had to leave the country for protection.
The Committee immediately ordered interim measures under Article 5, 1 of
the Optional Protocol, while in the examination of the merits of the case, it con‐
sidered that the State had failed to ensure the protection of articles 2,c, e and g
in conjunction with Article 1 and Articles 5,a and 16 of the Convention by the
establishment of judicial protection. The Committee pointed out that there
were no adequate protective measures at the disposal of the applicant and this
is considered to be a direct breach of the Stateʹs obligations.
The important thing is that the protective grid of the Convention in cases of
domestic violence translates into taking and enforcing measures to prevent
and protect against such abusive acts. It is therefore possible for a state to be
convicted of acts of private individuals when it does not do what it takes to
prevent them. Finally, the Commission asked Bulgaria to pay compensation, to
review its legislation on these issues and to offer special training to the judicial
and police authorities involved in similar cases.
In the Vertido v. Philippines case84, the victim of sexual harassment and
sexual violence filed with the domestic courts and after 8 years, appealed be‐
fore the Committee claiming breach of articles 2, c and 2 f, 5,a and 1 of the
Convention. The Committee considered that the Philippines failed to provide
security to the victim and asked the country to the change the stereotypes and
attitudes in the society, providing also compensation to the victim.
In the case of A.S. v. Hungary85, the victim, a Romani woman, was subjected
to a compulsory sterilization during a removal surgery for a dead embryo after
having signed a document, but without realizing its content, with which she
formally gave her consent for the sterilization. However, the Committee asked
the State to provide information to the authorities regarding their obligations
under the Convention and to review national legislation.
Also interesting is the case of Alyne de Silva Pimentel Teixeira v. Brazil86, a
pregnant woman of African descent, who died in the absence of early medical
assistance to women of similar origin. The Committee condemned the country
for discriminatory treatment of these women and violation of articles 2.12 (2),
12 (2) on the Elimination of Discrimination in healthcare and has called on Bra‐
zil to provide measures of medical services and medical care for women of Af‐
rican descent.
Case V.P.P. v. Bulgaria no. 31/2011 and Case Isatsou Jallow v. Bulgaria no. 32/2011.
Vertido v. Philippines no. 18/2008.
85 AS v. Hungary no. 4/2004.
86 Alynede Silva Pimentrel Teixeira v. Brazil no. 17/2008.
83
84
83
Finally, the Abramova v. Belarus case87, was about the incarceration of a
woman in detention facilities for men, in which the victim was sexually har‐
assed by the guards and threats. The Committee condemned the country for
violating Articles 2a, b, e and f, 3 and 5, and found that sexual harassment was
a form of gender‐based violence, called for a series of measures to implement
the Convention and ordered compensation to the victim.
4.4. The Committee against Torture (CAT)
The Committee stressed that states are obliged to adapt their domestic legis‐
lation to the definition given in the Convention on Torture. Thus, it has asked
Guatemala to amend its Penal Code in line with Articles 1, which defines the
concept of torture and Article 4.2 of the Convention88, according to which the
state should provide for appropriate penalties for acts of torture.
In a case against Argentina, which the Committee rejected as inadmissible
because the torture was committed before the entry into force of the Conven‐
tion, the Committee considered that Argentina had the moral obligation to
provide legal aid to the victims and relatives of the victims of torture89.
As regards the obligation to exercise universal jurisdiction under Article 5
of the Convention, the Committee considered that Senegalʹs failure to intro‐
duce legislation in order to exercise universal jurisdiction constituted a viola‐
tion of the above Article of the Convention90.
In a case against France, the Committee has accused the applicant who was
to be deported to Tunisia for involvement in a criminal‐terrorist organization
and conviction by the French courts because, as the purpose of Article 3 of the
Convention, which prohibits deportation in a state where there are substantial
reasons for torture, is to protect the applicant from the risk of being subjected
to torture in Tunisia or maltreatment in the prisons91.
4.5. The Committee on the Rights of Persons with Disabilities
The case‐law of the Committee on the Rights of Persons with Disabilities is
of great interest starting from the first case of Zsolt Bujdoso and others v. Hun‐
gary92 claiming the violation of articles 12 and 29 of the Convention concerning
equality before the law and equal participation in the public life of the country
other elections.
Hungaryʹs national law prohibited the applicants from voting in elections
because of their disability. The authors, persons with intellectual deprivation,
were placed under partial or general guardianship pursuant to judicial deci‐
Abramova v. Belarus no. 23/2009.
Committee against Torture, Consideration of Reports Submitted by States Parties under
Article 19 of the Convention: Guatemala, 25 July 2006, UN Doc. CAT/C/GTM/CO/4 par. 4.
89 O.R., M.M., and M.S. v. Argentina, Comm. 1, 2&3/1988, un Doc. A/45/44/par. 9.
90 Suleymane Guengueng el al. v. Senegal (Habre Case), Comn. No. 181/2001, UN Doc.
CAT/C/26/181/2001.
91 See among others, Loram, E., ‘International Instruments Protecting Human Rights: The
Committee against Torture’, GJEL 1 (2008), p. 192, 202.
92 Zsolt Bujdoso and others v. Hungary CRPD/C/10/D/4/2001, 20 September 2013.
87
88
84
sion and automatically their names were removed from the electoral register,
according to art, 70, 5 of the Hungarian Constitution. The Hungarian State has
argued that the restriction is set to protect the integrity of the political system
and its distortion by votes from people who cannot form a valid political con‐
science and will.
The Committee initially considered that the Hungarian State, and each State
Party, is required by the Convention to ensure by positive measures the par‐
ticipation of citizens under guardianship or guardianship in political life on
equal and fair terms, and not to deprive them the right to vote. The Committee
also noted that the limitation is unbearable not only because of its content but
also because of its nature, as it does not allow for a satisfactory remedy to lift
the measure as a constitutional one, and has found violation of Articles 12 and
29.
The Committee fully justified the disproportionate and illegal nature of the
ban, recommended that the State revise any provisions contrary to the Conven‐
tion, submit a progress report on the harmonization of national legislation
within six months and give the applicants fair compensation for non‐pecuniary
damage their right to participate in the 2010 elections.
The second case against Hungary93 concerned distinguished treatment for
blind people who cannot use ATMs in their own country in equal access to
other citizens. The Committee found that there had been a violation of a series
of articles, such as article 5,2 and 3, which provides for non‐discrimination and
Article 12,5, which guarantees equality before the law. The applicants with
considerable visual impairment complained to the Committee that they were
discriminated against by the fact that they could not use automatic money‐
making machines while being required by the Banking Agreement to pay an
equal amount to all other bank customers enjoying fewer services94. The Bank
argued that replacing ATMs would be an unbearable expense that could not
afford. However, the Committee has proposed the adoption of minimum ac‐
cessibility rules for banking services by private financial institutions and a leg‐
islative framework ensuring full accessibility for people with disabilities.
In the case of H.M. v. Sweden95, the author of the communication claimed to
be a victim of a number of articles by Sweden, namely articles 1, 2, 3, 4, 5, 9, 10,
14, 19, 20, 25, 26 and 28 of the Convention. The author suffered from chronic
connective tissue disorder (EDS syndrome) resulting in the hypersensitivity of
its bones and vessels, so that she could not move at all due to the possibility of
injury. Her doctors recommended restorative hydrotherapies and she applied
to the competent authority to allow her to build a water pool at the back of her
home, a request finally rejected because the urban development plan of the
area did not allow it. The author claimed that the refusal by the administrative
93
Szilvia Nyusti, Peter Takacs and Tamas Fazekas v. Hungary, CRPD/C/9/D/1/2010, 21 June
2013.
The complainants repeatedly asked for a Braille system in the ATM, a request which was
denied by the Bank and after that they went to the Courts.
95 H.M v. Sweden, CRPD/C/7/D/3/2011, 19 April 2012.
94
85
bodies to issue a building permission amounts to discrimination that violates
the Convention and her right to worthwhile of life.
The Committee considered that this plan did not impose a restriction, as it
applies without exception to all, whether or not disabled. However, it asked
the competent authority to review it and propose other measures that could
ensure that the author had access to the required treatment. The decision of the
domestic authorities was disproportionate and produced a discriminatory ef‐
fect that affected the author’s access, as a person with disability. Sweden
stressed that the Swedish Constitution prevents the government from influenc‐
ing decisions to change urban planning for individual cases.
For its part, the Committee invoked Article 27 of the Convention on the Law
of Treaties, which expressly states that the State Party cannot rely on provi‐
sions of domestic law to justify the non‐implementation of an international
Convention. It also recalled that legislation should be implemented in line with
international human rights standards by taking all necessary measures to pro‐
tect the rights of people with disabilities in the same way as the rights of others
residing in a State. For all the above reasons, the Committee found violation of
art. 19b and also found that the State has failed to complete its obligations un‐
der arts 5, 1, 5, 3, 19b, 25 and 26 read alone and in conjunction with arts 3b, d, e
4, 1 d.
Further the Committee recommended a) adequate compensation to the au‐
thor b) the State Party to prevent similar violation in the future c) the measures
taken by Sweden to implement its recommendation; d) the possibility of grant‐
ing an exemption to H.M. by the competent authority and e) to publish the
Committeeʹs opinion on the internet in Swedish. Ignoring the Committeeʹs
opinion, the Swedish Government stated that it was not required, in accor‐
dance with its international obligations, to compensate the applicant for the
costs of the complaint. The dialogue continues with the Committee expressing
its disappointment expecting for a reply in six months.
In the Liliane Groninger v. Germany case96, the author, a French national,
filed a communication on behalf of her disabled son, her husband and herself
claiming that her son was a victim of violations by Germany of his rights un‐
der articles 3, 4, 8 and 27 of the CRPD. In particular, she referred to the fact
that, although her son attended normal primary and secondary education, he
had a problem of access to vocational training, depriving him of the planned
assistance from the Employment Office and thus being excluded from the la‐
bor market. The Committee examined the case on the basis of the discrimina‐
tory treatment suffered Ms Groningerʹs son in access to employment and in the
pre‐recruitment process, particularly difficult for the disabled.
The Committee stressed that this procedure does not help effectively the
employment of people with disabilities, while the relevant regulations are
mainly aimed at people who have temporarily lost their full working capacity,
that is to say they have a temporary disability that can be restored within 36
months. Subsequently, Germany provided a comprehensive list of the social
96
Groninger v. Germany, CRPD C/11/ D/2/2010, Communication no.2/2010, 4 April 2014.
86
policy measures it has taken to ensure the inclusion and access of disabled
people to the workplace.
However, the fact that they did not indicate which of these measures are
applicable in this case, did not allow the Committee to take them into account.
Finally, the Committee noted that what the State had done was not satisfactory
with respect to its obligations under the CRPD and for this reason the treat‐
ment of the applicant constitutes a violation of Article 27, 1, d and e in conjunc‐
tion with the 3 (a), (b), (c) and (e) referring to the general principles of the Con‐
vention, as well as Article 4 (1a) and (1b) and Article 5, 1 of the Convention on
the general obligations of States to ensure equality. In its reasoning, the Com‐
mittee imposed on the State compensation for the applicant by reconsidering
his claim under national law, but also by compensating him. The Committee
also stressed that Germany should take all necessary steps to prevent such dis‐
crimination in the future and invited Germany to submit within six months
written response on any action taken in the light of the present views and rec‐
ommendation of the Committee.
The most recent case is brought against Argentina97, where the applicant
was detained as a defendant for a criminal offense. During his pre‐trial deten‐
tion he underwent a spinal surgery to replace a cervical disc, with the permis‐
sion of the prison. The operation failed and he suffered a stroke, which caused
him severe dysfunctions. He was then transferred to a special treatment and
rehabilitation unit where he stayed and asked for pre‐trial detention to be con‐
verted to house arrest, which was not accepted.
Despite the doctorsʹ predictions about his sensitive condition, his repeated
requests were rejected one after another. His stay in prison cost him access to
basic hygiene services, and the changes made to the infrastructure were mini‐
mal, with the result that his situation was burdened. The Committee found a
violation of Article 9, 1, a and b, which guarantees accessibility, article 14, 2,
which guarantees the freedom and security of the individual and Article 17 of
the Convention, which enshrines the integrity of the individual.
4.6. The Committee on Enforced Disappearances
The Committee’s case‐law on the enforced disappearances is limited98. In
the case of Roberto Yrusta v. Argentina, the applicant, a prisoner in custody,
was deprived of the opportunity to communicate with his family for several
days. Yrusta himself asked for his transfer to another prison, claiming that he
had been mistreated and tortured for three years. He was transferred to an‐
other prison in 2013 without his relatives being informed of his new detention
facility.
For one week, his relatives remained without any contact with the prisoner,
who was finally found dead in his cell a few days later. His relatives asked the
competent national authorities for information on the victimʹs living conditions
during the days when the communication was interrupted without receiving
97
98
CRPD/C/11/D/8/2012 Mr. X v. Argentina.
Case of Roberto Yrusta v. Argentina, 21 Mars 2016.
87
any response. The Committee decided that the deceased was a victim of extinc‐
tion, completely separating the disappearance from any time constraint and
clearly expressed the view that a secret detention does not exist only because
of the existence of a secret detention center, but can take place when there is no
information about the detained in the official lists, or they are not accessible to
their relatives. The Committee has identified a violation of the Convention by
Argentina and in its decision indicated that the State Party should continue in‐
vestigations into the living conditions of the victim during the period in ques‐
tion and also punish the perpetrators99.
5. Compliance of States
The Committeeʹs Recommendation (Decision) is published and the State is
obliged to post it publicly so that all citizens will be informed. Since all Con‐
ventions do not provide a mechanism for the execution of the decision, the
only responsible for its implementation is the State itself. The States, as a rule
follow the concluding observations, or recommendations of the Committees
respecting their signature and ratification.
This was demonstrated at the case law we have examined. There are more
examples thought illustrating the availability of States to comply with the deci‐
sion, even by following the concluding observations of the Committees after
the examination of the Reports of each State, e.g. Switzerland revoked a federal
decree on political speeches which restricted the freedom of expression of
aliens without a permanent residence permit. New Zealand has modified the
legislation on land of indigenous peoples and their right to natural resources,
and at the same time has allocated state funds for this purpose, thus enhancing
the rights of the Maori in accordance with the provisions of the Covenant of
Civil and Political Rights.
The United Kingdom has taken different measures in the areas under its ju‐
risdiction to combat any discrimination based on sex or race and has also taken
steps to eliminate the differences between the rights of married and non‐
married children. Sweden introduced legislative amendments to ensure that
children seeking asylum have access to pre‐primary, primary and secondary
education as well as to health services under the same conditions as children
residing permanently in the country. Tunisia has introduced amendments and
new legislative measures on detention. Greece amended the Penal Code to
comply with the Convention on the Rights of the Child. The Netherlands,
while insisting that there was no violation, in a particular case, of respect for
the Committee, made a compensatory allowance to the applicants.
Argentina was obliged to pay compensation and a monthly pension to a na‐
tive woman raped at the workplace. CEDAW has asked Argentina to train all
civil servants on gender issues in order to respect women. Germany amended
the asylum procedure at the request of the Committee. South Africa intro‐
duced special programs for pregnant women with AIDS to prevent the virus
99
ID=E]
[http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=18494&Lang
88
from spreading to infants. Serbia was forced to stop the forced population dis‐
placement of Roma100.
Jamaica was convicted because the four‐year and three‐month period for a
case was judged beyond the reasonable time101. Turkmenistan, Uzbekistan,
Kyrgyzstan and the Philippines abolished the death penalty after ratification of
the Optional Protocol on the Covenant of Civil and Political Rights.
Spain has been convicted of failing to provide an interpreter to a defendant
in a court case. Finland has revised the Law in order to comply with the Cove‐
nant and paid compensation to the victim. Mauritius has reformed legislation
on citizenship of women102 and Latvia amended its legislation constituted dis‐
criminating treatment against the Russian minority to acquire member’s equal
access to public office. Canada, Colombia, Ecuador, Peru, Trinidad and Tobago
have responded positively to the views of the Committee of Covenant on Civil
and Political Rights. Finland has been convicted of violating the rights of mi‐
norities, describing their economic activities as a cultural element of the minor‐
ity103.
6. Conclusions
It is now accepted that the Committees established under the nine core in‐
ternational treaties deliver jurisdictional acts. They have the power to rule on
complaints /communications alleging violations of human rights guaranteed in
those international conventions. The judgments delivered in the form of deci‐
sions or recommendations can be brought before the national courts.
For their part, national judges must be aware that possible non‐compliance
with the above decisions may lead the State to conviction and compensation.
For this reason, we think that judges must know and take into account both the
interpretation of these international instruments and the case‐law. The legal
uncertainty regarding their classification as non‐judicial or as quasi‐or semi‐
judicial bodies should be brought to an end.
Osmani v. Serbia, CN 261/2005, May 2009.
Errol Johnson v. Jamaica, no. 588/1994, 11.01.1994.
102 Shirin Aumeeruddy‐Cziffra and 19 other women from Mauritania v. Mauritius, CN
35/1978, 1984.
103 Jouni Lansman, Eino Lansman and the Committee of Muotkatunturi Herdmen v. Finland
no. 1023/2001, 15.04.2005.
100
101
The Protection of Minorities in the UN Context
Vassilios Grammatikas
Assistant Professor, Department of Political Science, Democritus University of
Thrace
1. Introduction
The creation of the UN coincided with the total depreciation of minorities,
partly due to the overall negative approach of the victorious powers and most
of the states that suffered hugely under the Nazi occupation. The moral justifi‐
cation of this attitude lies in the fact that most of the German / German speak‐
ing minorities were used by the Nazis for the promotion of their aggressive
policies towards the host states.
Just after the end of World War II the victorious powers, influenced by a
negative approach towards the rights of minorities, initially took action in or‐
der to … eliminate the problem. An estimated number of 12 ‐ 14 million of eth‐
nic Germans was forced to leave their homelands on the basis of Article XII of
the 1945 Potsdam Protocol,1 at the same time that the Nuremberg trials found
deportations by the Nazis to constitute crimes against humanity2. The various
peace treaties that were concluded after the war do not refer to minorities at
all, with the exception of the peace treaty with Italy, which specifically men‐
tions the German speaking minority in South Tyrol3.
Therefore, in a climate hostile to the adoption of any ad hoc minority rights,
the United Nations substituted the protection system that was in force prior to
World War II with a system of Universal Human Rights that would accommo‐
date the rights of minorities as well. However, the new system was far from
Article XII of the Potsdam protocol, which is entitled “Orderly Transfer of German Popula‐
tions”, reads as follows: “The Three Governments, having considered the question in all its aspects, rec‐
ognize that the transfer to Germany of German populations, or elements thereof, remaining in Poland,
Czechoslovakia and Hungary, will have to be undertaken. They agree that any transfers that take place
should be effected in an orderly and humane manner” Text of the protocol: https://www.nato.int/ebook‐
shop/video/declassified/doc_files/Potsdam Agreement.pdf. There is some confusion –up until now– as
to the actual numbering of the article (XII or XIII). For the relevant discussion and clarification of
the issue see Franck, M., Making Minorities History: Population Transfer in Twentieth‐Century
Europe. (Oxford: Oxford University Press, 2017), p. 285. See also De Zayas, A., ‘International
Law and Mass Population Transfers’, Harvard International Law Journal 16 (1975), pp. 227‐242,
Von Braun, F., ‘Germany’s Eastern Border and Mass Expulsions’, American Journal of Interna‐
tional Law 58 (1964), p. 747.
2 Article 6(b) of the Charter of the International Military Tribunal at Nuremberg defined war
crimes to include “...murder... or deportation... of civilian population of or in occupied territory...”
while Article 6(c) characterized deportation as a crime against humanity (text: http://avalon.law.
yale.edu/imt/imtconst.asp).
3 While the word minority is not mentioned per se in the text of the Treaty, according to Arti‐
cle 10 § 2, an agreement of 1946 between Italy and Austria regarding the basic rights of the Ger‐
man speaking citizens in South Tyrol was incorporated as Annex IV to the Treaty (English text:
https://www.loc.gov/law/help/us‐treaties/bevans/m‐ust000004‐0311.pdf).
1
90
perfect4. Perhaps this was the very reason for the establishment of the Sub‐
Commission on the Prevention of Discrimination and Protection of Minorities
(hereinafter referred to as the Sub‐Commission).
2. The work of the Sub‐Commission on the Prevention of Discrimination
and Protection of Minorities
2.1. Efforts towards the definition of minorities
One of Sub‐Commission’s primary tasks was to prepare a draft Article 31 of
the Universal Declaration of Human Rights. Considering terminological ques‐
tions, it decided not to submit any definitions, although the draft referred to
“well defined” minorities,5 and despite considerations of several members on
the numerical issue and the possible creation of minorities for propaganda
purposes.6 However, not even this draft was included in the UDHR.
After the adoption of the UDHR, the Sub‐Commission attempted to deal
with the issue by recommending, in its third, fourth and fifth sessions, that the
Human Rights Commission should adopt a draft resolution defining minori‐
ties for the purposes of protection by the UN. The resolution of the fifth ses‐
sion, which was recommended for adoption, contained the following points as
the bases for a definition:
‘The term minority includes only those non‐dominant groups in a population
which possess and wish to preserve stable ethnic, religious or linguistic traditions or
characteristics markedly different from those of the rest of the population; such minori‐
ties should properly include a number of persons sufficient by themselves to preserve
such traditions or characteristics; such minorities must be loyal to the State of which
they are nationals”7.
However, in all of these cases, the Commission returned them in all occa‐
sions to the Sub‐Commission for “further study”, clearly refusing to deal with
the issue. Then, in its sixth session, the Sub‐Commission initiated a study on
the position of minorities throughout the world, using the provisional defini‐
tion adopted in its previous sessions which reads as follows:
“... the term minority shall include only those non‐dominant groups in a population
which possess and wish to preserve ethnic, religious or linguistic traditions and char‐
According to the Sub‐Commission’s Special Rapporteur Francesco Capotorti “… the empha‐
sis placed in the International legal order on the imperative need to ensure respect for basic human rights
seemed to imply that in was no longer necessary to protect in any special way the interests of minority
groups … During the last few years, however, that view has proved to be mistaken”. (Capotorti, F.,
Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN
Doc. E/CN.4/Sub/ 2/384/Rev. 1, Preface, p. iii).
5 The Draft text reads as follows: “In States inhabited by well defined ethnic, linguistic or religious
groups which are clearly distinguished from the rest of the population and which want to be accorded dif‐
ferential treatment, persons belonging to such groups shall have the right as far as it is compatible with
public order and security to establish and maintain their schools and cultural or religious institutions, and
to use their own language and script in the press, in public assembly and before the courts and other au‐
thorities of the State, if they so choose” (UN Doc. E/CN.4/52/6.12.1947 at p. 9).
6 Ibid., at pp. 15‐16.
7 UN Doc. E/CN.4/641/ 20.10.1951, p. 43 (Annex I).
4
91
acteristics markedly different from those of the rest of the population”8.
The Commission, as usual, after some discussion, referred the subject in‐
cluding the definition back to the Sub‐Commission for further study,9 an atti‐
tude that led the Sub‐Commission to postpone the study of the whole issue of
minorities.
Meanwhile, a memorandum prepared by the Secretary General of the or‐
ganization in 1950 titled “Definition and classification of Minorities”, empha‐
sized that:
“...the term minority cannot for practical purposes be defined by simply interpret‐
ing the word in its literal sense. If this were the case, nearly all the communities exist‐
ing within a State would be styled minorities, including families, social classes, cultural
groups, speakers of dialects, etc. Such a definition would be useless”.
focusing on a more restrictive interpretation referring to communities which
differ from the predominant group in the State, being especially of a national
or similar character10. This memorandum had no more impact on the Human
Rights Commission than the equivalent attempts of the Sub‐Commission and
the issue was practically ignored by everybody during the following years.
In 1971, the Sub‐Commission initiated a study on the rights of minorities
with Francesco Capotorti being the special Rapporteur, and the outcome of his
research gave fresh impetus to the issue of definition as well. Not only did he
provide a definition of minorities but he also assembled very useful govern‐
ments’ opinions on the subject. In the conclusive part of his study he presented
a definition, which is considered to be the most authoritative definition that
was given in the UN era, limiting however its scope solely to the application of
Article 27 of the ICCPR. According to Capotorti a minority is:
“A group numerically inferior to the rest of the population of a State, in a non‐
dominant position, whose members ‐being nationals of the State‐ possess ethnic, reli‐
gious or linguistic characteristics differing from those of the rest of the population and
show, if only implicitly, a sense of solidarity, directed towards preserving their culture,
traditions, religion or language”11.
The latest proposal on a definition within the UN framework was made by
Jules Deschênes on the request of the Sub‐Commission. He defined a minority
as:
“A group of citizens of a State, constituting a numerical minority and in a non‐
dominant position in that State, endowed with ethnic, religious, or linguistic character‐
istics which differ from those of the majority of the population, having a sense of soli‐
darity with one another, motivated, if only implicitly, by a collective will to survive
and whose aim is to achieve equality with the majority in fact and in law”12.
Basically, Deschênes follows the same pattern as Capotorti, with some small
variations and a somewhat more detailed interpretation.
UN Doc. E/CN.4/703/5.2.1954, para. 200.
UN Doc. E/CN.4/705, para. 438.
10 UN Doc. E/CN.4/Sub.2/85/26‐12‐1949 pp. 2‐8.
11 Capotorti, supra n. 4, para. 568.
12 UN Doc. E/CN.4/Sub.2/1985/31, para.181.
8
9
92
The definition issue was also dealt with in a series of studies initiated by the
Sub‐Commission which was carried out by Asbjorn Eide between 1990 and
1992.13 In his second progress report Eide devoted some space for the issue of
definition,14 but he avoided to propose any definition or to deal with its core
elements by wondering whether such a wide field could be covered by his
study,15 and by laying down the various objections on the inclusion of a defini‐
tion during the progress of his report.16
2.2. The Protection of Minorities before the UN
In the process of drafting the Universal Declaration of Human Rights the
Sub‐Commission tried to persuade states to include a minority protection
clause as part of the Declaration. Draft Article 31, as proposed by the Sub‐
Commission, was devoted to minority protection reading as follows:
“In States inhabited by well defined ethnic, linguistic or religious groups which are
clearly distinguished from the rest of the population and which want to be accorded
differential treatment, persons belonging to such groups shall have the right as far as it
is compatible with public order and security to establish and maintain their schools
and cultural or religious institutions, and to use their own language and script in the
press, in public assembly and before the courts and other authorities of the State, if
they so choose”17.
During the preparation of the above provision, the Sub‐Commission de‐
cided not to give any definition, despite the fact that the draft referred to “well
defined minorities” and despite the objections raised by some members focus‐
ing on the numerical factor and the possibility of creating “artificial” minorities
for propaganda purposes18.
In the end, the member states decided to drop the Sub‐Commission’s draft
and the final text of the UDHR19 contains no reference to minorities whatso‐
ever. However, the UNGA, at the very same day when the UDHR was
adopted, also adopted Resolution 217 (C), as part of the International Bill of
Human Rights, entitled “Fate of Minorities” which provides the following:
“Considering that the United Nations cannot remain indifferent to the fate of mi‐
norities, … requests the Council to ask the Commission on Human Rights and the Sub‐
Commission on the Prevention of Discrimination and the Protection of Minorities to
make a thorough study of the problem of minorities, in order that the United Nations
may be able to take effective measures for the protection of racial, national, religious or
linguistic minorities”.
In carrying out this mandate the Sub‐Commission dealt with the issue in its
next, consecutive sessions, where a variety of opinions were expressed by its
See UN Doc. E/CN.4/Sub.2/1990/46 and UN Doc. E/CN.4/Sub.2/1991/43.
UN Doc. E/CN.4/Sub.2/1992/37, paras 43‐54.
15 Ibid., at para. 43.
16 Ibid., at paras. 44‐45.
17 UN Doc. E/CN.4/52/9‐12‐1947, p. 9.
18 Ibid., pp. 15‐16.
19 UN Doc. A/RES/3/217/10.12.1948.
13
14
93
members20.
3. Article 27 of the ICCPR
The problem attracted some attention during the discussions on the adop‐
tion of the International Covenant on Civil and Political Rights (ICCPR). The
Sub‐Commission opted for a single article on the protection of minorities to be
included into the international instruments that were being prepared. That
draft was submitted to the Commission of Human Rights21.
In the end, the Commission proposed the adoption of an ad hoc article, which
was accepted and incorporated in the Covenant as Article 27, providing that:
“In those States in which ethnic, religious or linguistic minorities exist, persons be‐
longing to such minorities shall not be denied the right, in community with the other
members of their group, to enjoy their own culture, to profess and practice their own
religion, or to use their own language”22.
Despite the limited scope of application and the problematic wording, Arti‐
cle 27 of the ICCPR became –and still is– the only legal obligation of universal
impact regarding the protection of minorities, binding upon 171 states23. More‐
over, it should be emphasized that the creation of the Human Rights Commit‐
tee (HRC) by Art. 28 of the Covenant and its mandate to examine individual
communications provided by the 1st Optional Protocol to the ICCPR,24 as a
quasi judicial body, provided a forum where persons belonging to minorities
could address issues related to Article 27, thus enhancing their capacity to ef‐
fectively protect their substantive rights.
3.1. Nature of the rights provided by Art. 27 ICCPR
The basic features of Article 27 are consistent with the minority protection
system that was established after WW I. Thus, states opted for an individualis‐
tic approach to minority rights “persons belonging to minorities” excluding
any form of collective minority activity. Even before the Sub‐Commission, an
early draft referred to minorities but one member insisted that reference
should be made to “persons belonging …” and not to minorities as such be‐
cause, in her view, minorities as such were not subjects of law25. This view was
For a detailed overview of these efforts see Capotorti, supra n. 4, paras. 165‐171.
After some consideration of the wording to be used, by 9 and 1 abstention the Sub‐
Commission adopted Resolution E which proposed the following definition: “persons belonging
to ethnic, religious or linguistic minorities shall not be denied the right, in community with the other
members of their group, to enjoy their own culture, to profess and practice their own religion, or to use
their own language” (UN Doc. E/CN.4/Sub. 2/112).
22 International Covenant on Civil and Political Rights, 999 UNTS 171, https://www.ohchr.
org/EN/ ProfessionalInterest/Pages/CCPR.aspx.
23 Ratifications as of 18.7.2018. Among the states that are not yet members to the ICCPR we
find China (signatory) and Saudi Arabia, United Arab Emirates, Malaysia, Myanmar, South Su‐
dan (no participation at all). Source: http://indicators.ohchr.org.
24 Article 1 of the Protocol. The Protocol has been ratified by 116 states which do not include
the US, UK, China, Japan, India, all Arab and Middle East States and many African states.
Source: http://indicators.ohchr.org.
25 The view was expressed by Ms. Monroe (UK) and it was adopted in the final version of
20
21
94
accepted by the members of the Sub‐Commission and is reflected in its Resolu‐
tion E26. However it appears that the real reason behind the change of this
wording was the constant reluctance of states to recognize group rights27, a
trend which continues up until today.
After the adoption of the Covenant the Working Group on Minorities,
which was established within the Human Rights Committee, explicitly stated
that “Article 27 does not bestow rights on minorities as collective entities …”,28
thus leaving no doubt as to the recipients of the rights afforded by Article 2729.
3.2. Application of Article 27
Another point of significant criticism was the initial phrase “In those state in
which minorities exist”. The inclusion of this phrase was the outcome of a pro‐
posal by Chile,30 supported by many other Latin American states.31 The general
idea was to distinguish between minorities and economic migrants and ex‐
clude the latter group from minority protection or to avoid attaching minority
status to already assimilated groups. In his report, Capotorti provides essen‐
tially the same explanation but he goes on to add that:
“It is certainly not the function of article 27 to encourage the formation of new mi‐
norities; where a minority exists however, the article is applicable to it, regardless of
resolution E (UN Doc. E/CN.4/Sub. 2/112).
26 See n. 21 above.
27 See Vukas, V., “Protection of Minorities” in Glassner, M. I. (ed.) The United Nations at
Work. (Westport: Praeger, 1998), p. 87.
28 UN Doc. CCPR/C/23/CRP.1 of 22.10.1984.
29 The vast majority of authors accept the individualistic approach of Article 27 ICCPR. See
eg. Wippman, D., ‘The Evolution and Implementation of Minority Rights’, Fordham Law Re‐
view 66 (1996), p. 604, where the author states that “the rather tepid protections offered should
be understood as predominantly individual rather than collective rights”, Stavenhagen, R.,
‘Human Rights and People’s Rights. The Question of Minorities’, Nordic Journal of International
Law 3 (1987), p. 20, Sohn, L., “The Rights of Minorities” in Henkin, L. (ed.) The International Bill
of Rights: The Covenant on Civil and Political Rights (New York, Columbia University Press,
1981), p. 274, Hannum, H., ‘Contemporary Developments in the International Protection of the
Rights of Minorities’, Notre Dame Law Review 66 (1991), p. 1436, Pentasugglia, G., Minorities in
International Law. (Strasbourg, Council of Europe Publishing, 2002), p. 48, Shahabuddin, M.,
“International Law and Ethnic Conflicts in a World of Multi‐Nation States: The Case of Chit‐
tagong Hill Tracts (CHT), Bangladesh” in Parry, J., Zeydanlioglu, W. (eds.) Rights, Citizenship
and Torture (Oxford: Inter‐Disciplinary Press, 2009), p. 305. However, some authors consider
that Article 27 sanctions group rights as well. See eg. Dinstein, Y., ‘Collective Human Rights of
Peoples and Minorities’, International and Comparative Law Quarterly 25 (1976), pp. 103‐120.
Thornberry tried to compromise the two positions by supporting that the rights contained in Ar‐
ticle 27 constitute “a hybrid between individual and collective rights” [Thornberry, P., Interna‐
tional Law and the Rights of Minorities (Oxford, Clarendon Press, 1991), p. 173]. It should be
noted though that Thornberry himself comments on the final wording of Article 27 that “The bal‐
ance between ‘minority rights’ and ‘individual rights’ is an aspect of a larger question, but it is resolved in
the Covenant in favour of individual rights” (ibid., p. 176).
30 UN Doc. E/CN.4/L. 261.
31 See Thio, L., Managing Babel: The International Legal Protection of Minorities in the Twen‐
tieth Century (Leiden, Boston: Martinus Nijhoff, 2005), pp. 150‐152.
95
the date of its formation”32.
The Commentary on the UN Declaration on Minorities, which was pre‐
pared by its Chairperson – Rapporteur Asbjorn Eide, referring to the terminol‐
ogy of Article 27 held that “it is not relevant to determine the degree of permanence
that the term ‘exist’ connotes”.33 The final version of the Commentary as en‐
dorsed by the Working Group on Minorities omitted the latter phrase but
stated that:
“The best approach appears to be to avoid making an absolute distinction between
‘new’ and ‘old’ minorities by excluding the former and including the latter, but to rec‐
ognize that in the application of the Declaration the ‘old’ minorities have stronger enti‐
tlements than the ‘new’”34.
The current and dominant view in the eyes of the UN about the recipients
of Article 27 is reflected in a 2010 document entitled “Minority Rights: Interna‐
tional Standards and Guidance for Implementation” where it is stated that:
“Although it [Art. 27] refers to the rights of minorities in those States in which they
exist, its applicability is not subject to official recognition of a minority by a State.
States that have ratified the Covenant are obliged to ensure that all individuals under
their jurisdiction enjoy their rights; this may require specific action to correct inequali‐
ties to which minorities are subjected”35.
It should be noted, however, that as long as the term minority has not been
defined there will always be an ambiguity as to the actual content of all rele‐
vant provisions, mainly Article 27,36 subject to manipulation or exploitation by
states that do not wish to afford protection to certain minority groups or ex‐
clude others.
The rights provided in Article 27 have an inherently “negative” character.
They allow persons belonging to minorities to engage in certain activities
without interference or restrictive measures by states, but they do not go as far
as to oblige states to take any positive action to uphold or promote these
rights.37 In its general comment No 23 entitled “Rights of Minorities” the Hu‐
man Rights Committee tried to expand the scope of Article 27 by stating that:
“positive measures by States may … be necessary to protect the identity of a minor‐
ity and the rights or its members to enjoy and develop their culture and language and
See Capotorti, supra n. 4, paras. 202, 204 (quotation).
Eide A., Final text of the Commentary to the UN Declaration on the Rights of Persons Be‐
longing to National or Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/AC.5/2001/2,
para. 9.
34 UN Doc. E/CN.4/Sub.2/AC.5/2005/2, 4.4.2005, para. 11.
35 OHCHR: International Standards and Guidance for Implementation, (New York & Ge‐
neva), 2010), pp. 15‐16. (UN Doc. HR/PUB/10/3).
36 Commenting on the distinction between “old’ and “new” minorities two authors empha‐
sized that “Nevertheless, there is a considerable grey area in between the two categories”. Khan, B. U.,
Rahman, M. M., Protection of Minorities: Regimes, Norms and Issues in South Asia (Newcastle,
Cambridge Scholars Publishing, 2012), p. 15.
37 See Cholewinski, R., ‘State Duty towards Ethnic Minorities: Positive or Negative?’, Human
Rights Quarterly 10 (1988), p. 344, Macklem, P., ‘Minority Rights in International Law’, Interna‐
tional Journal of Constitutional Law 6 (2008), p. 539, Capotorti supra n. 4, paras. 211‐213.
32
33
96
to practice their religion”38.
however it also acknowledged that:
“Although article 27 is expressed in negative terms, that article, nevertheless, does
recognize the existence of a “right” and requires that it shall not be denied”39.
While some authors consider non‐discrimination to be a feature of minority
protection, this principle is part of the general human rights and does not con‐
stitute a special characteristic attached to minority protection, although minori‐
ties are frequently targets of discrimination on the basis of their distinct charac‐
teristics. To this end, HRC General Comment No 23 is very clear as to the dis‐
tinction between non‐discrimination and Article 27:
“The Covenant also distinguishes the rights protected under article 27 from the
guarantees under articles 2.1 and 26. The entitlement, under article 2.1, to enjoy the
rights under the Covenant without discrimination applies to all individuals within the
territory or under the jurisdiction of the State whether or not those persons belong to a
minority”40.
A final point to be considered is the recipients of the rights of Article 27. Ac‐
cording to the unanimous view of European states, all minority rights, includ‐
ing those of Article 27 apply to citizens of the respective states, thus excluding
any other group that shares common characteristics with minorities (migrants,
refugees)41.
In his report Capotorti also connected the concept of a minority to citizens
of a state42. This approach however does not reflect the dominant position
within the UN organs. In the 2005 Commentary on the UN Minority Declara‐
tion the European position is criticized and a clear distinction is drawn be‐
tween Article 27 ICCPR (and the UN Declaration) and European instruments.43
UN Doc. CCPR/C/21/Rev.1/Add.5, 5.8.1994, para. 6.2.
General Comment No 23, ibid., para .6.1.
40 Ibid., para. 4.
41 In the context of the Framework Convention for the Protection of National Minorities (ETS
157), most states‐parties appended declarations referring to citizenship as a prerequisite for con‐
sideration of certain groups as minorities (https://www.coe.int/en/web/conventions/search‐on‐treaties
/‐/conventions/treaty/157/declarations?p_auth=wjHEtkjE). Moreover, definitions that were prepared
by various agents in Europe all refer to citizenship as a defining characteristic for minorities.
Thus the Parliamentary Assembly of the Council of Europe proposed an additional Protocol to
the ECHR on the rights of minorities, defining national minorities as a “group of persons in a state
who reside on the territory of the state and are citizens thereof; mainly longstanding, firm and longlasting
ties with a state; display distinctive ethnic, cultural, religious or linguistic characteristics; are sufficiently
representative, although smaller in number than the rest of the population of the state or of a region of the
state”. (PACE Recommendation 1201 (1993), 1.2.1993), while the Venice Commission for Democ‐
racy through Law defined minorities as “a minority consists of group of persons which is smaller in
number than the rest of the population of the State, whose members, who are nationals of the State, have
ethnical, religious or linguistic features different from those of the rest of population, and are guided by the
will to safeguard their culture, traditions, religion and language.” (CoE Doc., CDL‐MIN (93) 6,
22.2.1993).
42 Capotorti, para. 568.
43 UN Doc. E/CN.4/Sub.2/AC.5/2005/2, 4.4.2005, para. 9. It is stated that “In relation to the
European regional instruments, some States argue that “national minorities” only comprise groups com‐
38
39
97
The same view is expressed in General Comment No 23 of the HRC where it is
held that:
“…individuals designed to be protected need not be citizens of the State party … A
State party may not, therefore, restrict the rights under article 27 to its citizens alone”44.
4. The UN Declaration on Minorities
As a conclusion of his study Capotorti recommended “the preparation of a
draft declaration on the rights of members of minority groups within the framework of
the principles set forth in article 27 of the Covenant”45.
As early as 1978 the Commission on Human Rights decided to create an
open ended working group with the task to prepare a declaration, as Capotorti
had suggested46. An initial draft was submitted by Yugoslavia in the same
year47 and was revised by the Chairman – Rapporteur of the working group
Mr. Toševski according to the feedback he received from the other members in
198148. Progress was rather slow during the 80’s but was accelerated after the
collapse of the USSR and the working group formulated its first draft of the
complete declaration in 199049. After further discussions, the final version of
the declaration was agreed upon in 199150 and was finally adopted by consen‐
sus in the General Assembly as “Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities”51.
4.1. Content of the Declaration
According to its preamble, the Declaration is inspired by Article 27 ICCPR.
The initial drafts used the verb based on, but later the wording was changed.52
According to Pentasugglia, “…its interpretation is not necessarily affected by the
limitations of that Article”.53
posed of citizens of the State. Even if that is accepted (at present it is a matter of some controversy), it
would not apply to the United Nations Declaration on Minorities because it has a much wider scope than
“national minorities” … Persons who are not (yet) citizens of the country in which they reside can form
part of or belong to a minority in that country”.
44 General Comment No 23, ibid., para. 5.1. Moreover in para 5.2. the Comment goes on to
add that “Thus, migrant workers or even visitors in a State party constituting such minorities are enti‐
tled not to be denied the exercise of those rights”.
45 Capotorti, supra n. 4, para. 617.
46 UN Doc. E/1978/34, p. 119.
47 UN Doc. E/CN.4/L.1367/Rev.1 (1979).
48 UN Doc. E/CN.4/Sub.2/L.734 (1981). For an overview of the efforts during the initial phases
of preparation see the report of the open working group, UN Doc. E/CN.4/1984/74, 9.3.1984.
49 UN Doc. E/CN.4/1990/41 (1990).
50 UN Doc. E/CN.4/1992/48, 16.12.1991. Final text adopted after the second reading (Annex I ‐
p. 16).
51 UNGA Res 47/135, 18.12.1992.
52 See UN Doc. E/CN.4/1984/74, Annex I.
53 Pentasugglia, supra n. 29, p. 112. Essentially the same view is shared by Thornberry who
stated that by using the word inspired “…the Declaration is not therefore tied to the limitations of Ar‐
ticle 27”, https://www.ohchr.org/Documents/HRBodies/HRCouncil/Minority Issues/Session5/
98
As far as the substantive provisions are concerned, the Declaration retains
the individualistic approach of article 27, which is evident in the title of the
declaration as well as in many of its provisions. However, Art. 1 § 1 provides
that states shall protect the existence and identity of minorities within their ter‐
ritories. Two points should be made here. First, the use of the word “shall” al‐
ters the language of Article 27 ICCPR to a more direct one. Second, two rights
of an inherently collective nature are proclaimed: the right to existence and the
right to identity.
The right to existence initially appeared as an essential component of the
Genocide Convention (1948) but this was the first time it formed part of a hu‐
man rights document. The right to the various elements of minority identity,
obliges states to protect it, but the second part of the provision is so loosely
worded that it can hardly be said to constitute an obligation “… shall encourage
conditions for the promotion of that identity”.
Art. 1 § 2 obliges states to adopt “appropriate legislative and other meas‐
ures to achieve those ends”. As far as the right to existence is concerned, it
makes sense as an obligation of states to confront genocide, ethnic cleansing
and similar behaviors in their internal legal systems, in addition to the already
assumed obligations by virtue of the genocide convention. But the adoption of
legislative measures “to encourage conditions …” appears to be meaningless.
Article 2 contains the core of the rights provided by the Declaration. Art. 2 §
1 essentially repeats Article 27 ICCPR but the phrase “shall not be denied the
right” is substituted by the more positive “have the right”. The following
paragraphs (Art. 2 §§ 2, 3, 4), introduce participation rights at various levels,
but the obligations imposed upon states are again vague, as far as positive ac‐
tion is required. Finally, Art. 2 § 5 introduces the concept of cross‐border con‐
tacts with persons sharing the same characteristics.
Art. 3 § 1 repeats the collective dimension of minority rights of Article 27
ICCPR with a slightly different language, while Art. 3 § 2 refers to the positive
and negative expressions of the individual choice (or self‐identification) prin‐
ciple.
Art. 4 spell out various obligations of states, the wording of which is of a
rather programmatic nature. Phrases that are used include “should take appro‐
priate measures so that, wherever possible …” “should, where appropriate, take meas‐
ures …” “should consider appropriate measures …” Similarly, Arts. 6 & 7 provide
that states “should cooperate”. It is quite interesting to note that the Commentary
to the Declaration systematically alters the above phrases using a stronger lan‐
guage. Among other, “should” becomes “shall” and the phrase “whenever
possible” becomes “requires”54.
4.2. Nature of the Declaration
A general conclusion that could be deduced is that while the Commentary
and various authors tend to expand the scope of the Declaration beyond that of
Statements/ItemII/1.Thornberry.pdf.
54 UN Doc. E/CN.4/Sub.2/AC.5/2005/2, paras. 56‐72.
99
Article 27, it should be borne in mind that Article 27 is a binding legal principle
while the Declaration is a political one that was adopted as a UN General As‐
sembly Resolution.
According to Art. 10 of the UN Charter, General Assembly Resolutions con‐
stitute recommendations without any binding character upon states. However,
as Brownlie observes, when resolutions are expressed in the form of general
principles, they may contribute to the progressive development of interna‐
tional law and the speedy formulation of customary rules.55 In the case of the
Declaration though, even if we wanted to attach normative character to the
Declaration, it would be impossible to deduce solid principles, due to its word‐
ing and the rather vague nature of the obligations imposed upon states, de‐
spite its unanimous adoption.
In his 2013 report to the GA, the UN Secretary General emphasized that:
“… the Declaration provides essential international human rights standards per‐
taining to the promotion and protection of minorities. Its nine articles contain broad
principles that offer guidance to States in meeting their obligations”.
However, in a somewhat contradictory statement, he went on to add that:
“While the Declaration itself is not legally binding, article 27 of the Covenant and
article 30 of the Convention on the Rights of the Child offer strong treaty norms with
regard to minority rights, similar to standards contained in the Declaration”56.
The real added value of the Declaration lies in the fact that the international
community, as a whole, decided to formulate a detailed set of principles that
promote the legal obligations assumed by Article 27 ICCPR and, maybe, pave
the way for a future legally binding instrument on the protection of minorities.
In 2007 the Human Rights Council established the Forum on Minority Issues
with a mandate to promote dialogue and cooperation on minority issues and
to assist the work of the Special Rapporteur on minority issues, as well as to
identify and analyze best practices, challenges, opportunities and initiatives for
the further implementation of the Declaration57. The establishment of new or‐
gans that deal with minority issues should be viewed as a demonstration of the
sustained interest of the UN towards minorities.
Moreover, the fact that the General Assembly deals with the issue on a con‐
stant basis,58 even as a formality, is indicative of a growing and steady concern
over the issues of minorities and the promotion of the principles enshrined in
the Declaration.
Brownlie, I., Principles of Public International Law, 6th ed. (Oxford, Oxford University
Press, 2003), p. 15.
56 “Effective promotion of the Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities”, Report of the Secretary General, UN Doc.
A/68/304/9.8.2013, paras. 2 & 3 respectively. It should be noted that the reference to essential in‐
ternational human rights standards could only apply to existing human rights that are contained to
the declaration and not to ad hoc minority rights, since such standards did not exist until the
adoption of the declaration.
57 HRC Res. 6/15 (2007). The mandate was renewed by HRC Res. 19/23 (2012).
58 See eg. Resolutions 63/174 (2008), 66/166 (2011), 70/166 (2015).
55
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5. Contemporary Challenges
More than 50 years since the adoption of the ICCPR and 25 years after the
adoption of the UN Declaration the legal framework for the protection of mi‐
norities is minimal and, to some extent, outdated (Article 27) while the steps
forward have also been rather weak.
In 2009 the UN High Commissioner for Human Rights stated that:
“Minorities in all regions of the world continue to face serious threats, discrimina‐
tion and racism, and are frequently excluded from taking part fully in the economic,
political, social and cultural life available to the majorities in the countries or societies
where they live”59.
More recently, in her final, overview, report as the Special Rapporteur on
minority issues, Rita Izsák‐Ndiaye identified the following main issues that
minorities continue to face:
• The progress that has been achieved in the field of minority protection is be‐
ing threatened (para. 58, 91)
• Lack of minority representation in public administration and decision mak‐
ing processes within states (para. 70)
• Refusal of certain minorities to identify themselves as such because of the
negative connotation or negative attitude by states if they did so (paras. 61‐
62, 93)
• Rise of populism (para. 59) hate speech, xenophobia and far‐right extremism
(para. 58) targeting minorities
• Minorities remain among the poorest and the most socially and economically
excluded and marginalized communities globally (para. 101)
• Absence of a generally accepted definition of minorities (para. 65)60.
The newly appointed Special Rapporteur on minority issues Fernand de
Varennes identified virtually the same challenges as to the global status of mi‐
norities. He referred to the:
“…vulnerability and marginalization of many minority groups around the world
and presented his overall vision and priorities for the mandate for the next three years,
noting in particular the critical and, at times, overlooked dimension that the rights of
minorities are the human rights of some of the world’s most vulnerable”61.
Even if we accept that the above and similar statements by UN officials are
often exaggerated in order to increase awareness and/or induce states to act,
the common denominator remains that, since the adoption of the ICCPR, few
developments can be identified in the field of minority protection at the uni‐
versal level.
The fact that, since the collapse of communism, human rights play a far
more important role in the rhetoric and action of the UN as an Organization,
also contributed to increase the visibility of the specific problems minorities
Statement by Navanethem Pillay, UN High Commissioner for Human Rights on Human
Rights Day, 10.12.2009 https://www.ohchr.org/en/Issues/Minorities/Pages/MinoritiesIndex.aspx
60 Report of the Special Rapporteur on Minority Issues, UN Doc. A/HRC/34/53, 9.1.2017.
61 UN Doc. A/HRC/37/66, 16.1.2018, para. 26.
59
101
face and, therefore, to the level of commitment on the part of the international
community to address and resolve those problems.
According to my personal opinion, the starting point and source of many
problems that minorities face and will, probably, continue to face in the future
is the lack of a universally accepted definition of the term “minority”. Thus, the
questions of: citizenship as a requirement, distinction between old and new
minorities, assimilated groups, generally acceptable goals for minority groups,
issues of positive protection by states, are all part of an ongoing discussion
which, to some extent, distracts stakeholders from the real problems that have
to be confronted. If a universally accepted definition existed, most of the above
issues would be part of it and focus would be placed on the actual protection
regimes.
In its General Comment No 23 the Human Rights Committee stated that:
“The existence of an ethnic, religious or linguistic minority in a given State party
does not depend upon a decision by that State party but requires to be established by
objective criteria”62.
Building on the latter proposition the UN Secretary General downgraded
the necessity of a definition stating that:
“The UN pursues an inclusive approach to the concept of minorities, guided by the
principle of self‐identification and bearing in mind that there is no internationally
agreed definition of the term”63.
In relation to the above, it should be underscored that the “objective crite‐
ria” employed by the HRC or the “inclusive approach” and “self ‐ identifica‐
tion” used by the SG, can hardly constitute solid bases for the designation of
minorities, in particular if one asks questions like what the “objective criteria”
consist of and who will employ these criteria, how the term “inclusive” will be
utilized or how mere self‐identification can create groups or attach certain
characteristics to them. It all goes down to a kind of identification of minori‐
ties, whether it is called definition, demarcation, designation.
The acting Special Rapporteur Dr. de Varennes has described the problem
with considerable clarity by stating that:
“… ambiguities and uncertainties as to the status of minorities, in some cases, may
impact negatively on the implementation of the Declaration and other human rights
instruments affecting them. Accordingly, in order to effectively implement the the‐
matic priorities of the mandate, the Special Rapporteur will explore the following: (a)
The scope and meaning of the term “minority” as contained in the Declaration on the
Rights of Minorities and article 27 of the International Covenant on Civil and Political
Rights; …”64.
The absence of a definition of minorities is certainly not the only issue that
HRC General Comment No 23, para. 5.2.
Guidance Note of the Secretary‐General on Racial Discrimination and Protection of Minorities,
(United Nations, 2014), p. 4 (para. 8). While the above text was intended for internal use by the
UN system, the views expressed therein, still reflect official views of the highest individual au‐
thority within the UN.
64 UN Doc. A/HRC/37/66, 16.1.2018, para. 31.
62
63
102
minorities face nowadays. The issues that Ms. Izsák‐Ndiaye identified in addi‐
tion to statelessness as a problem particularly affecting minorities that is being
investigated by Dr. de Varennes, indicate that there is a pressing need for the
UN and its member states to take further positive action on the protection of
minorities.
The only ad hoc, legally binding, instrument for their protection dates back
to more than 50 years ago and this can hardly be seen as adequate. Given the
fact that the UN Declaration is not a legal document, it is submitted that the
way forward at the universal level should be the adoption of a legally binding
international instrument devoted to the protection of minorities. After all, mi‐
nority protection, as part of fundamental human rights, constitutes an obliga‐
tion of states towards the most vulnerable members of their societies.
Some Thoughts on the Long Overdue Revision
of the UN Charter
Κonstantin D. Magliveras
Professor, Department of Mediterranean Studies, University of Aegean
1. Introduction
The year 2005 saw the jubilations for the 60th anniversary of the Organiza‐
tion of the United Nations (UN). It was a very important event. With the ex‐
ception of the International Labour Organization (ILO), never before had an in‐
tergovernmental institution with global participation lasted for so long. A large
number of journal articles were written, many a collected volume was pub‐
lished, and numerous conferences were organized to commemorate this event
of note. Commentators, including the present author, took this opportunity to
call not only for institutional changes to be made1 but also for the overhaul of
the whole ‘UN system’2.
It was argued, inter alia, that the much‐discussed enlargement of the Secu‐
rity Council (UNSC) should finally become a reality allowing for a much larger
representation on this organ, which, lest it be forgotten, still possesses the (al‐
most absolute in certain situations) right to the use of force3. Indeed, at the
time, there was a degree of euphoria that finally something might change and
that the Security Council, in particular, will become more answerable to the
Member States, and that its operations will become more democratic.
Ten years later, the celebrations for the 70th anniversary were a rather sub‐
dued event, even though a new record was broken in the uninterrupted life of
the United Nations. In the meantime, the discussion on institutional reform
had faded out, while the various problems and challenges that the UN faces,
and are often associated with the sclerosis emanating from its outdated struc‐
ture and the ensuing inability to institutionally adapt to changing conditions,
persist. However, this is not to say that a discussion on UN reform does not
still take place.
However, one cannot hope for any spectacular changes. And this with
In 1997, the then Secretary‐General Kofi Annan, even though relatively new in the job, put
forward his own platform for reforms, see Renewing the United Nations: a Programme for re‐
form, Report of the Secretary‐General, UN Doc. A/51/950, 7 October 1997.
2 See Magliveras, K., ‘The Discussion on United Nations Reform: Another Missed Opportu‐
nity in September 2005?’, in Greek Society of International Law and International Relations (ed),
60 Years of the United Nations. (Athens‐Komotini: Ant. N. Sakkoulas Publishers, 2006), p. 47 (in
Greek), and Magliveras, K., “Some Thoughts and Suggestions on the Institutional Reform of the
United Nations,” in Greek Society of International Law and International Relations (ed), Global
Governance: International Law and International Relations at the Ave of the 21st Century. (Ath‐
ens‐Komotini: Ant. N. Sakkoulas Publications, 2006), p. 71 (in Greek).
3 For a systematic analysis of the discussions at the time, see Bourantonis, D., The History
and Politics of UN Security Council Reform. (London: Routledge, 2005). For more recent events,
see Nadin, P., UN Security Council Reform. (Abingdon: Routledge, 2016).
1
104
hindsight based on the accumulated experience of the previous decades. This
experience includes the so far rather fruitless deliberations in the working
group, which the General Assembly (UNGA) established in January 1994 to
consider this very matter4. In July 2017, it was resolved, on the basis of an oral
General Assembly decision5, to continue its deliberations during the (current)
72nd Session6. One wonders what justification does the prolongation of the op‐
eration of such work groups have other than to constantly remind us the im‐
mortal title of William Shakespeare’s comedy “Much Ado About Nothing”.
2. The revision and reform of the UN Charter is no longer adequate: ana‐
morphosis is what is required
As the UN is on its way to celebrate another milestone, its eighth decade of
uninterrupted operations, it will be argued that its survival does not only ne‐
cessitate wide‐ranging institutional reform (that Trusteeship Council must fi‐
nally go away!)7. On the contrary, what is required is a brand new constitutive
instrument. But as this is rather a utopia, the second best is the anamorphosis
of the whole Charter, from the Preamble to the final provisions (and yes the
provisions on amendment as well!).
Indeed, in this time and age it is rather absurd to read in Article 4 of the
See Resolution 48/26 of 3 December 1993 establishing an open‐ended working group to con‐
sider all aspects of the question of increase in the membership of the Security Council and other
matters related to the Council. For its work, see, inter alia, UNGA, Official Records, Fifty‐fifth
Session, Supplement No. 47, UN Doc. A/55/47 (2001); Official Records, Sixty‐first Session, Sup‐
plement No. 47, UN Doc. A/61/47 (2007).
5 See Introductory remarks by Peter Thomson, President of the UN General Assembly, at GA
Plenary for the consideration and adoption of the Oral decision on IGN71 on Security Council
reform, 19 July 2017, at: http://www.un.org/pga/71/2017/07/19/security‐council‐reform/ See fur‐
ther, United Nations, Press Release GA/11931, 19 July 2017, at: https://www.un.org/press/en/
2017/ga11931.doc.htm. As this was an oral decision, no written text appears to exist. Note that
this was not a ‘resolution’ but a ‘decision’; for the distinction between them, see the current
Rules of Procedure of the General Assembly (embodying amendments and additions adopted
up to September 2016), UN Doc. A/520/Rev.18, 21 February 2017. The operation of this work
group appears to be covered by a veil of secrecy and the papers it produces are not made public.
6 See Statement by Miroslav Lajčák, President of the 72nd Session of the UN General Assem‐
bly, at the General Assembly Plenary Meeting on the Question of Equitable Representation on
and Increase in the Membership of the Security Council, 7 November 2017, at: https://www.un.
org/pga/72/2017/11/07/question‐of‐equitable‐representation‐on‐and‐increase‐in‐the‐membership‐
of‐the‐security‐council/; for the statements made by the Member States, see https://papersmart.
unmeetings.org/ga/72nd‐session/plenary‐meetings/agenda/122/. For events in 2016, see General
Assembly, 71st Session, Agenda Item 122: “Question of equitable representation on and increase
in the members of the Security Council and other matters related to the Security Council”, Ple‐
nary Debate, 7 November 2016, at: http://www.un.org/pga/71/event‐latest/ga‐plenary‐meeting‐
question‐of‐equitable‐representation‐on‐and‐increase‐in‐membership‐of‐security‐council/
7 Although theoretically it suspended operations on 1 November 1994, a month before the
last trust territory, Palau, became a Member State, it is an active principal organ: at the opening
of its 72nd Session in December 2017 it elected Anne Gueguen of France as President and Jona‐
than Guy Allen of the United Kingdom as Vice‐President for a maximum five year term in office
and adopted its provisional agenda, see UN Press Release TR/2433, 15 December 2017.
4
105
Charter that only ‘peace‐loving states’ may join the Organization and that
throughout their membership they have to continue loving peace. Recent
events such as the ballistic missile launches by North Korea8 and the declara‐
tion of US President Donald Trump from the podium of the General Assembly
in September 2017 that the USA will ‘totally destroy’ North Korea9 make one
wonder how the term ‘peace‐loving states’ is to be interpreted today.
But there are other provisions in the Charter whose content should either be
confirmed, if it still represents the prevailing conditions, or be amended, if it
has to be adapted to today’s realities. Suffice to mention the following exam‐
ples. First, the continued validity of Article 2(7) (it prohibits the UN from get‐
ting involved “in matters which are essentially within the domestic jurisdiction
of any state”)10 in view of the developing concept of Responsibility to Protect
(R2P)11. To put it otherwise, there appears to be a need to spell out clearly and
unequivocally when and under which circumstances the UN is allowed and
entitled to intervene in matters traditionally associated with state sovereignty.
This is required because otherwise the fear of selective interventions and
double standards is too high. The global society, for which the UN still acts as
the sole agent, needs to be guided by unambiguous and specific rules, which
are followed by all states. To do so, it is not enough to have UNSC resolutions
The video and transcript of President Trump’s speech at the opening of the 72nd UNGA Ses‐
sion on 19 September 2017 is available at: https://qz.com/1081446/unga‐2017‐donald‐trump‐full‐
video‐and‐transcript‐at‐united‐nations‐general‐assembly/
9 The video and transcript of President Trump’s speech at the opening of the 72nd UNGA Ses‐
sion on 19 September 2017 is available at: https://qz.com/1081446/unga‐2017‐donald‐trump‐full‐
video‐and‐transcript‐at‐united‐nations‐general‐assembly/
10 And as has been detailed in UNGA Resolution 2131(XX) of 21 December 1965, ‘Declaration
on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their
Independence and Sovereignty’, at: http://www.un‐documents.net/a20r2131.htm, in Resolution
36/103 of 9 December 1981, ‘Declaration on the Inadmissibility of Intervention and Interference
in the Internal Affairs of States’, at: http://www.un.org/documents/ga/res/36/a36r103.htm, as
well as in other Resolutions adopted in between them. Note that Article 2(7) talks about non‐
intervention by the UN itself, while these UNGA Resolutions concern the non‐intervention of
states in the domestic affairs of third states, see Wellman, C., The Moral Dimensions of Human
Rights. (Oxford: Oxford University Press, 2011), p. 105 et seq. However, it will be argued, that in
the contemporary international community the difference between these two kinds of interven‐
tion has been diminished, if not largely disappeared.
11 Despite being endorsed in UNGA Resolution 63/308 of 14 September 2009, R2P is referred
to here as a ‘concept’ because arguably it has not yet reached the stage of becoming a principle
or a rule of international law. However, the trend is to be upgraded to such a principle; see,
among others, the latest UN Secretary‐General Report on the matter, United Nations General
Assembly / Security Council, Integrated and coordinated implementation of and follow‐up to
the outcomes of the major United Nations conferences and summits in the economic, social and
related fields, Follow‐up to the outcome of the Millennium Summit, Implementing the Respon‐
sibility to Protect: Accountability for Prevention, Report of the Secretary‐General, UN Doc.
A/71/1016 –S/2017/556, 10 August 2017, where in para. 2 the Secretary‐General referred to his
“overall prevention agenda on atrocity crimes”, as if the other principal organs can have differ‐
ent agendas on this matter. That Guterres was High Commissioner for Refugees between 2005
and 2015, i.e. just before he was elected Secretary‐General, might have something to do with re‐
garding it as ‘his’ agenda.
8
106
stressing the primary responsibility of Member States’ authorities to protect
the population12, after all this is a self‐evident obligation. On the contrary, what
is needed are new provisions to be introduced in the UN Charter.
And there are examples of such express provisions in the constitutive in‐
struments of other intergovernmental organizations that the UN could follow.
Thus, Article 4(h) of the Constitutive Act of the African Union (AU) lays down
the right to intervene in a Member State pursuant to a decision of the Assem‐
bly of Heads of State and Government and in respect of grave circumstances,
which are defined as war crimes, genocide, and crimes against humanity13. Ar‐
ticle 4(h), no doubt a very progressive clause even today, could be seen as the
first ever incorporation of the R2P concept in the constitutive instrument of an
international organization.
However, until now there has been no relevant practice (indeed African
leaders have been most reluctant to even discuss it despite the many conflicts
in the continent that have caused the life of hundreds of thousands) and, there‐
fore, the opportunity has not arisen to see how R2P would be applied. It is also
instructive to note that Article 4(j) of the Constitutive Act envisages the right of
Member States to request that the AU intervenes to restore peace and security
in their territory. It follows that the AU has a corresponding duty to intervene,
something which is far from clear in the case of the UN.
The second example concerns Article 5 and Article 6 of the UN Charter, re‐
spectively, on suspension of membership rights and privileges, and on expul‐
sion from the Organization14. Seemingly, the competent UN organs do not dis‐
cuss the possibility of applying these punitive measures even for the purpose
of acting as a deterrent. And this despite the existence of recalcitrant Member
States which have brutally breached the Charter. Thus, the repeated and pre‐
sumably deliberate non‐compliance with fundamental UN principles is ad‐
dressed by a myriad of UNSC resolutions (often of dubious value and effec‐
tiveness as the case of North Korea so vividly reminds us) but the question of
(temporarily or permanently) excluding the wrongdoers from the Organiza‐
tion is not deliberated, let alone acted upon. Moreover, the threat of the veto in
the Security Council, which could block its recommendation to the General
Assembly to apply Article 5 and Article 6, does not make this stance palat‐
able15.
It is true that, as of late, the UNSC has referred to this ‘primary obligation’ of states with
increased frequency, see also Resolution 2399(2018) of 30 January 2018 on the Central African
Republic where it ‘recall[ed] that the CAR bears the primary responsibility to protect all popula‐
tions within its territory’, a wording which presumably means that R2P must be applied without
discrimination. However, these references to R2P remain just that, references; for example in the
eleven‐page long Resolution 2399(2018) there is no indication how R2P is to be implemented and
incorporated in the various measures taken by the UNSC.
13 Generally, see Magliveras, K., Naldi, G., The African Union: History, Institutions and Ac‐
tivities. (Alphen aan den Rijn: Wolters Kluwer, 2018).
14 Generally, see Magliveras, K., Exclusion from Participation in International Organizations:
The Law and Practice Behind Member States’ Expulsion and Suspension of Membership. (The
Hague/London/Boston: Kluwer Law International, 1999).
15 At the Yalta Conference (4 – 11 February 1945), where the deliberations on the voting pro‐
12
107
Especially when the violation of the UN principles results in barbarism and
in considerable human life losses, both these organs have an obligation to act,
not least in order to protect the Organization. But since this have never hap‐
pened and there is nothing to suggest that it will happen (North Korea can
safely enjoy its membership), it would not be an exaggeration to argue that Ar‐
ticles 5 and 6 have fallen into disuse and any preventive role that they might
have had is mostly obliterated. This is an unfortunate reality which must be
addressed together with the associated but more general question of ordering
sanctions against recalcitrant Member States, which brings us to the third ex‐
ample.
The third example deals with the provisions of Chapter VII of the Charter
effectively endowing the UN with a monopoly on the legitimate (or legiti‐
mized) use of force (we will return later to the issue of monopoly and competi‐
tion). The question to be asked is whether the UN may continue to retain this
privilege. It was probably appropriate, even desirable at the end of World War
II, and it may have contributed to maintaining a global generalized peace and
security during the last seven decades, but arguably it is an anachronism in the
present day and time.
The creation of the UN was principally the result of bilateral and trilateral
negotiations during World War II while the involvement of the other states
only came at the last stages and was arguably of limited effect. But this mode
of forming intergovernmental organizations is a thing of the past. It has been
replaced by multilateralism where the role of large and important states re‐
mains of course significant without, however, being the only factor determin‐
ing the end result. At long last, another underrated actor in the international
community should have a say in shaping the multilateral institution holding
the monopoly on the use of force, and this is no other than what is referred to
as ‘the Global South’16.
3. Explaining the UN’s continued vitality
The above considerations can be easily refuted by someone who prefers to
note that, even though the UN keeps on operating on the basis of an anti‐
quated Charter, even though its membership has grown almost four‐fold since
1945, and even though it is burdened with numerous problems and challenges,
it is ever functionable and has survived many a crisis. How can someone ac‐
cedures and the veto right of the permanent UNSC members were concluded, both President
Roosevelt and Marshal Stalin had agreed that the veto power would not put obstacles to discuss‐
ing matters in the Security Council, see US Department of State, Office of the Historian, The
Formation of the United Nations, 1945, σε: https://history.state.gov/milestones/1937‐1945/un.
16 Even though the Global South has been associated with international economic law, fol‐
lowing the project of the New Economic Order (NEI) of the 1970s, and more recently its attach‐
ment to international environmental law, its involvement in the development of international
law, including the development of the law of global institutions, should be holistic; generally,
see: Anghie, A. et al. (eds.), The Third World and International Order: Law, Politics and Global‐
ization. (Dordrecht: Martinus Nijhoff Publishers, 2003).
108
count for this state of affairs? There may be several answers: it is the result of
some miracle; the Charter’s drafters were not only visionaries but also people
with enormous skills; it is the result of many happy coincidences over many
years; no other multilateral institution has emerged able to dispose the UN and
its legacy; or simply that the UN was created in a way which ‘reinforces the re‐
sistance to change’17.
Even if these answers were correct, for how many more years will the UN
manage to contain the current difficulties and the ones that will no doubt sad‐
dle it in the future? And could it do it on the basis of an archaic Charter and
outdated tools, whose use is uncertain given the ability of even one of the so
called ‘Four Policemen’ (they finally became five with the late addition of
France)18 to block the volition of the remaining Member States?
The reference is of course to the ever‐controversial veto power. The way it
has been used begs the question whether it serves the best interests of the Or‐
ganization and its membership or just the ephemeral foreign policy of the
states holding it. The fact that on many occasions the practice shows that the
permanent Members have invoked it in disregard of the UN’s principal aims
and purposes arguably leads to the following question: does the elitist nature
of the Security Council19, which is manifested by, among others, the often‐
arbitrary determination of what will be discussed and what will be omitted, on
which matter there will be a decision, and on which matter there will be si‐
lence, will lead to the alienation of the other Members?
And will such alienation result in their seeking alternative means, methods
and institutions for solving problems and disputes? In itself, such develop‐
ments would not necessarily be worrisome and, as is argued in the present ar‐
ticle, no measure of competition will do any harm to the UN. However, there is
always the risk that, in trying to satisfy their needs and aspirations, states
could adopt aggressive attitudes and policies too difficult to be contained.
The prestige and the authority of the UN is undeniable20. But, at the same
time, it does not appear capable of preventing genocides, averting armed con‐
See Chesterman, S. et al., Law and Practice of the United Nations, 2nd edition. (New York:
Oxford University Press, 2016), p. 627.
18 The reference to the ‘Four Policeman’ (i.e. the USA, the Soviet Union, the United Kingdom,
and China) appears to have been made for the first time in 1942 by President Roosevelt. See
Kimball, F. W., The Juggler: Franklin Roosevelt as Wartime Statesman. (Princeton: Princeton
University Press, 1991), p. 85.
19 See the statement by Arnoldo Listre of Argentina before the Plenary UNGA in November
2000 inviting “the minority of countries holding to archaic privileges to stop obstructing the re‐
form of the [Security] Council and to abandon their elitist stance”, and the statement of Ahmed
Aboulgheit of Egypt, see United Nations, Press Release GA/9825, ‘Opinion on Security Council
Reform Offered by Thirty‐Nine More Member States as Assembly Debate Continues’, 16 No‐
vember 2000. See also McWhinney, E., United Nations Law Making: Cultural and Ideological
Relativism and International Law Making for an Era of Transition. (London, New York: Holmes
& Meier Publishers, 1984), p. 88.
20 A poll conducted in 2012 by the Pew Research Center showed that the UN was far more
favorably received compared to the USA, see http://www.pewglobal.org/2013/09/17/united‐
nations‐retains‐strong‐global‐image/
17
109
flicts (many of them foretold), and ensuring the enjoyment of human rights
and of fundamental freedoms to millions of people. To explain this paradox,
one could argue that the rules of competition, even though they apply to other
types of organizations (in the broad meaning of the word), do not find proper
application in the case of intergovernmental institutions, and specifically the
UN. This has resulted in the UN not having any global competitor of note and,
indeed, it appears doubtful if it will have one in the future. This lack of compe‐
tition permits the UN to abuse the dominant position and/or the monopoly
that it enjoys in many areas, including human rights, development and sus‐
tainability, the environment, weapons of mass destruction, the use of force, etc.
The phrase «nothing is more permanent than what is temporary and noth‐
ing is more devious than what is a phenomenon» may offer another explana‐
tion. It is submitted that it applies to the UN for two reasons. The first is that its
creation could be viewed as a temporary solution of the victors of World War
II to reconstruct and reorganize the then dilapidated community of nations.
Once the victors had achieved this goal (or at least they thought they had
achieved it), the UN’s lifeline was extended for the simple reason that there
was no other global multilateral actor to compete with it21.
The second is that the very existence of the UN deprives the contemporary
international community of some 200 countries and nations the ability (possi‐
bly the right as well?) to complain and demand an intergovernmental organi‐
zation, which will be able to regulate anew the multi‐level and complicated re‐
lations that have emerged among states and between states and non‐state ac‐
tors Thus, to answer those defending the record of the UN and maintaining
that it only appears that it functions as it should but actually it strikes one suc‐
cess after the other, it could argued that this is a phenomenon and a deceitful
marvel. And it can probably be attested by the many tens of thousands of peo‐
ple, who are experiencing the consequences of the UN’s misleading promises.
4. The gigantic bureaucracy that the UN has become – The still legally base‐
less UN peacekeeping – On Chapter VI and ½ and on other half Chapters
For many years now, the UN has become a gigantic bureaucracy. The term
‘bureaucracy’ is not used here according to the theory of Max Weber, namely
that it constitutes the most effective method to operate an organization in
which everybody is treated equally and where there is a clear division of la‐
bour (also known as the bureaucratic theory of management)22. On the con‐
trary, the ‘gigantic bureaucracy’ is a reference to the so‐called the ‘UN family’
or ‘UN system’. It includes more than 100 actors with different names, titles
and substance: Specialized Agencies, subsidiary organs, Programmes, Bureaus,
Generally, see Magliveras, K., ‘Legal Aspects of Competition between International Or‐
ganizations’, in Jelloh, C., Elias F. (eds.), Shielding Humanity: Essays in International Law in
Honor of Judge Abdul G. Koroma, (Leiden: Brill/Martinus Nijhoff, 2015), p. 242.
22 See Gerth, H., Wright Mills, C. (eds.), From Max Weber: Essays in Sociology. (Abingdon:
Routledge, 2009), p. 196 et seq.
21
110
permanent and ad hoc commissions and committees, Funds, bodies and enti‐
ties envisaged in the various treaties concluded under UN auspices (e.g. the
treaty bodies of the human rights treaties), etc23. One could (and should) ques‐
tion their usefulness, their effectiveness, the possible duplication in effort24, but
this would go beyond the ambit of the present article. However, what is of
relevance here is that the operation of most of these bodies and entities is not
regulated in the Charter25, while for those regulated (e.g. the Specialized Agen‐
cies)26 a recalibration of their relationship to the mother Organization is re‐
quired.
To these actors one should add the dozens of peace‐keeping operations,
which have been established over time and which are a creation of practice
based on the non‐existing Article VI and ½ of the Charter27. Naturally, the mis‐
sions imposing the peace are excluded, they have Article 42 of the Charter as
their legal basis28. However, this is not the same as the operations generally re‐
ferred to as ‘UN peacekeeping’ and which was recognized as a legitimate UN
activity by the International Court of Justice (ICJ) in its Advisory Opinion of
Certain Expenses rendered in 196229.
It can be submitted that, given the circumstances prevailing at the time and
given that Articles 45‐47 of the Charter on combined international enforcement
action had already become dead letter, the ICJ could not but have recognised
the de facto existence of peace‐keeping operations. The ICJ could not have
For a list, see unsceb.org.
Only to show that this is not matter of lesser importance, suffice to cite as example the co‐
existence of the Global Food Security and Nutrition Forum and the UN System Standing Com‐
mittee on Nutrition.
25 Their creation is principally regulated in Articles 22, 29 and 68 of the UN Charter and aims
at facilitating the performance of the work of the principal organs. Arguably, the plethora of
bodies currently in operation begs the question if this should be the only criterion for creating
them.
26 See Articles 57, 58, 59, 63, 64 and 70 of the UN Charter.
27 The term ‘Chapter Six and a Half’ was first used in 1956 by the then Secretary‐General Dag
Hammarskjöld to describe the weak, according to the Charter, legitimation of two peace‐keeping
operations, the United Nations Supervision Organization (UNTSO) and the United Nations Mili‐
tary Observer Group in India and Pakistan (UNMOGIP). They were set up, respectively, in 1948
and in 1949, to oversee armistices in the Middle East and between India and Pakistan. Ham‐
marskjöld claimed that peace‐keeping was to be located somewhere between the traditional
methods of dispute settlement (e.g. negotiations and mediation) under Chapter VI and more
pro‐active action for which consent and authorization by the UNSC was required. See also
UNGA, Question considered by the Security Council at its 749th and 750th meetings held on 30
October 1956: Second and final report of the Secretary‐General on the plan for an emergency in‐
ternational United Nations force requested in the resolution adopted by the General Assembly
on 4 November 1956, UN Doc. A/3302, 6 November 1956, at: http://repository.un.org/handle/
11176/275892.
28 In these cases the UNSC gives the right or the mandate to use military force to those states
whose nationals will man the mission. This is necessary for otherwise it would have collided
with the aforementioned prohibition in Article 2(7) of the UN Charter.
29 ICJ, Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advi‐
sory Opinion, 20 July 1962, 1962 ICJ Reports 151.
23
24
111
done otherwise: the UN has as one of its principal aims (and probably the sin‐
gle most important goal) to maintain and to ensure peace and security every‐
where, at all times, and for everyone. As the facilities envisaged in the Charter
could not be borne to fruition but the need for generalised peace and security
remained of paramount importance, peacekeeping was, at least in theory, a
brilliant construction to which one could not easily object, lest he be accused of
ignoring the life of those suffering as a result of wars, of conflicts, and the lack
of security.
Thus, peacekeeping was a very significant development in the means and
methods of pacific settlement of disputes. Considering that these methods
have, on the whole, been the same since antiquity, to devise a new method was
no small achievement. However, by necessary implication, it involved interfer‐
ence with domestic affairs by sending in a (sovereign) state troops made up of
soldiers belonging to states not directly embroiled in the dispute, which had
disrupted peace and security, and have these soldiers acting as an UN force
mandated, as the case might be, to stabilize conflict situations, assist in imple‐
menting peace agreements, carry out disarmament, demobilization and reinte‐
gration of ex‐combatants, etc30. The ICJ could not have recognized peacekeep‐
ing operations de jure. This was clear: you cannot recognize something which
is legally non‐existing.
It follows that what ought to have happened many decades ago was to
amend the Charter and introduce a proper legal basis for peacekeeping opera‐
tions, presumably in Chapter VI. Undoubtedly, this would have been a com‐
plicated task because Article 1(1) of the Charter, the provision stating that the
UN’s foremost purpose is to maintain international peace and security, should
also have been amended. It should be noted that the Special Committee on
Peacekeeping Operations of the United Nations31 has asked the Secretary‐
General to draft before the end of 2017 comprehensive legal guidelines as re‐
gards the fundamental principles of peacekeeping32.
To the best of one’s knowledge this report has not yet been submitted. But
in September 2017, at the occasion of the UNSC High‐Level Open Debate on
Peacekeeping, António Guterres said that he would vigorously pursue four re‐
form efforts33, none of which had to do with establishing, at long last, an un‐
Generally, see United Nations, Department of Peacekeeping Operations, Department of
Field Support, United Nations Peacekeeping Operations: Principles and Guidelines, New York,
2008, at: https://peacekeeping.un.org/sites/default/files/capstone_eng_0.pdf.
31 It was established by UNGA Resolution 2006 (XIX) of 18 February 1965 with the mandate
to review any and all issues relating to peacekeeping. It reports to the UNGA through its Fourth
Committee (the Special Political and Decolonization Committee) and is currently composed of
147 Member States.
32 UNGA, Report of the Special Committee on Peacekeeping Operations, 2017 Substantive
Session (New York, 21 February‐17 March 2017), UN Doc. A/71/19, 20 March 2017, para. 70. All
proposals submitted by the Special Committee were accepted by the UNGA, see Resolution
71/314, ‘Comprehensive review of the whole question of peacekeeping operations in all their as‐
pects’, 20 July 2017.
33 See Secretary‐Generalʹs remarks at the Security Council High‐Level Open Debate on
Peacekeeping Operations Regarding the Reform of UN Peacekeeping: Implementation and Fol‐
30
112
ambiguous legal basis for it. Especially, when addressing problems such as
sexual exploitation and abuse that have marred peacekeeping operations, the
existence of a legal basis is all the more important.
There are writers who have referred to another ‘half chapter’ of the UN
Charter. Thus, Antonia Chayes has called ‘Chapter Seven and a half’ those
UNSC decisions which order the social and material reconstruction of coun‐
tries destroyed by the illegal use of force, by humanitarian law violations, by
civil conflicts, and similar situations34. She has maintained35 (but this is also the
opinion of other writers as well)36 that the regulation of situations arising after
the use of force and armed conflicts is a legal matter which should be ad‐
dressed. In particular, she has called for the development of a jus post bellum.
But even if there is adequate support for moving forward and apply such a jus
post bellum, it will not be possible to invoke the UN Charter as the necessary
legal basis to augment the Organization’s mandate, especially since it would
involve crucial issues of state sovereignty.
The consequence will be that this matter will be added to those still waiting
to be regulated by the elusive Charter revision. Based on previous experiences,
one can predict what will happen: provisional arrangements to regulate jus
post bellum will be made and will be consolidated (nothing is more temporary
than what is temporary), and, for yet another time, in the word’s public opin‐
ion the UN will be imprinted as the only solution for global issues, making it
redundant the search for alternatives (nothing is more devious than what is a
phenomenon).
5. The anamorphosis of the UN requires could start from the ordinary
budget
A fundamental revision of the UN Charter cannot and should not only con‐
cern whether the permanent and/or the non‐permanent members of the Secu‐
rity Council will be increased, whether they will originate from Africa or from
Asia37, whether Europe’s representation38 will be diminished and even be sub‐
low Up, 20 September 2017, at: https://www.un.org/sg/en/content/sg/speeches/2017‐09‐20/sgs‐
reform‐un‐peacekeeping‐remarks.
34 For example in the Preamble of Resolution 1483(2003) of 22 May 2003 on Iraq, the UNSC
“Resolved that the United Nations should play a vital role in humanitarian relief, the reconstruc‐
tion of Iraq, and the restoration and establishment of national and local institutions for represen‐
tative governance”, while in para. 8 it asked the Secretary‐General to appoint a Special Repre‐
sentative for Iraq, who would, inter alia, promote the country’s economic reconstruction and
would create conditions conducive to sustainable development. The reconstruction was to be
funded by the Development Fund for Iraq. See further UNSC Resolution 1770 (2007), 10 August
2007.
35 See Chayes, A., ‘Chapter VII1/2: Is Jus Post Bellum Possible?’ European Journal of Interna‐
tional Law 24 (2013), p. 291.
36 See Stahn, C. et al., Jus Post Bellum: Mapping the Normative Foundations. (Oxford: Oxford
University Press, 2014).
37 The so‐called ‘equitable geographical representation’ is always a tricky question, see Tha‐
kur, R. (ed.), What is Equitable Geographical Representation in the Twenty‐First Century. (To‐
113
stituted by a single seat to be held by the European Union39 (a proposition pre‐
sumably no longer valid after Brexit)40, whether a new class of members will be
created with permanent participation but without the veto right, and all the
other proposals which have been aired. Indeed, one is tired of listening of sug‐
gestions and ideas knowing very well that nothing will come out of them. For
when was the last time that states, willingly and without being forced to alter
their behaviour, chose to forgo privileges, advantages and benefits which were
bestowed upon them? To relinquish a privilege one has to be offered some‐
thing of an equivalent value. To be realistic, abandoning the veto power will be
a disservice to the Big Five and to their population.
Therefore, at this time and age, the discussion should focus on the Charter’s
anamorphosis, namely the re‐writing of the whole of the UN constitutive act,
and nothing less than that. In particular, the aims, the goals, the purposes and
the principles of the Organization have to be restated to reflect today’s reali‐
ties, possibly to envisage tomorrow’s needs, but in no case to repeat the illu‐
sions of the post‐WWII period, including the rather ill‐conceived idea that
somehow all states are sovereignty equal. That states have never been equal in
might (political, economic military, etc.) is a reality which goes back to antiq‐
uity.
Moreover, there is a clear need to restrict the number of bodies and entities
making up the gigantic UN system. This need is neither the result of someone’s
imagination nor someone’s ill‐conceived will to antagonize the UN. On the
contrary, it is dictated by different factors, including the sad financial situation
with which the UN has been living for so long and on account of which it suf‐
fers.
The reasons are well known and are shared by other international institu‐
tions whose operation depends on the financial contributions of Member
States. If the latter, deliberately or not, because they want to harm the Organi‐
zation or because they are short of funds or for whatever other reason, do not
pay on time and/or fail to contribute the full amount assessed, the Organiza‐
tion is going to suffer. And with it everybody else who is at the receiving end
of its services, its facilities, and its amenities41. In that respect it is instructive to
kyo: United Nations University, 1999). However, the view has been presented that other kind of
representation should be carried on, based on a group of states’ overarching common character‐
istics (e.g. Arab states or Muslim states), see B. Macqueen, ‘Muslim States and Reform of the
United Nations Security Council’, Journal of Middle Eastern and Islamic Studies 4 (2010) (in
Asia), p. 47.
38 Note that although UNGA Resolution 65/276 of 3 May 2011 is titled ‘Participation of the
European Union in the work of the United Nations’, in reality it covers the EU’s participation
only in the UNGA.
39 Hill, C. C., “The European Powers in the Security Council: Differing Interests, Differing
Arenas,” in Laatikainen, K., Smith, K. (eds.), The European Union at the United Nations: Inter‐
secting Multilateralisms. (Houndsmills: Palgrave Macmillan, 2006), p. 49.
40 See Lang, A., Brexit and the UN Security Council. House of Commons Library, Briefing
Paper, No 7597, 19/05/2016, at: http://researchbriefings.parliament.uk/ResearchBriefing/ Sum‐
mary/CBP‐7597#fullreport.
41 Figures speak by themselves: in 2017, assessments for the regular UN budget (i.e. exclud‐
114
recall the so‐called Goldberg Reservation expressed by the US permanent rep‐
resentative Arthur Goldberg in 1965:
‘If any member [meaning the USSR] can insist on making an exception to the prin‐
ciple of collective financial responsibility with respect to certain activities of the United
Nations [meaning the deployment of a UN force in the Congo] the United States re‐
serves the same option to make exceptions, if in our view strong and compelling rea‐
sons exist to do so.’
This statement does not talk about a right to withhold payments to the UN
budget but to the option to make exceptions. However, 15 years later the
Reagan Administration eagerly applied the Goldberg Reservation knowingly
very well that it will result in a financial crisis of immense magnitude, effec‐
tively holding the Organization to ransom given its 25% share of the regular
budget (it now stands at 22%). The overreliance on a single Member State is a
recipe for disaster and one that experience has shown could be easily abused.
It follows that the way budgetary contributions are assessed needs to be com‐
pletely overhauled and to be based on pragmatism and some originally think‐
ing.
For example, the UN Charter does not specify how contributions are as‐
sessed; it becomes the subject of UNGA resolutions to determine it. Therefore,
even if dramatic changes were to be introduced to the present arrangement, it
would not require the cumbersome procedure of amending the Charter (where
the Big Five rule) but a mere resolution of the General Assembly (where the
Global South rules). The current regime is based on Resolution 70/245, which
resolved that the scale of assessments for the 2016–2018 period shall use, inter
alia, the following criteria: estimates of gross national income; the debt‐burden
approach employed in the scale of assessments for the previous period (2013–
2015); a minimum assessment rate of 0.001% (which arguably is ridiculously
low and presently applies to 30 Member States); and a maximum assessment
rate of 22% (which is ridiculously high for just one Member State)42.
In practice this arrangement means that that the Member States assessed at
the minimum rate contribute less than 28,000 USD each while the USA more
ing peacekeeping operations) were issued for 2.58 billion USD, 29 million USD higher than 2016.
Payments received by 30 September 2017 were 1.89 billion USD, one million USD less than the
amount received by 30 September 2016. As at the same day, unpaid assessments totalled 1.1 bil‐
lion USD, while only 134 Member States had paid their regular budget assessments in full; see
UNGA, Financial situation of the United Nations, Report of the Secretary‐General, UN Doc.
A/72/522, 9 October 2017, paras 4‐5. In October 2016 the UN’s budgetary deficit stood at 354 mil‐
lion USD. While it was covered by the so‐called Working Capital Fund and the Special Account,
financial year 2016 closed with a deficit of 123 million USD; see UNGA, Financial situation of the
United Nations, Report of the Secretary‐General, UN Doc. A/71/440/Add.1, 8 May 2017.
42 As a measure of comparison, the Hellenic Republic is assessed 0.471% of the total regular
budget (corresponding to 12, 661, 082 USD for the year 2018) and Cyprus 0.043% (corresponding
to 1,045,204), see UN Doc. ST/ADM/SER.B/973, 29 December 2017. Note that those Member
States that have paid their regular budget assessments in full within the specified 30‐day due pe‐
riod are placed in a honour roll; for 2018 Cyprus was included in the honour roll, the Hellenic
Republic was not, see http://www.un.org/en/ga/contributions/honourroll.shtml
115
than 610 million USD. But, according to IMF data43, there are at least ten Mem‐
ber Members with an economy exceeding one trillion USD. It is important that
this status of economic primacy be reflected in the amounts assessed. And this
because economic primacy should be reflected on the amounts paid to sustain
at a satisfactory level global institutions like the UN. If the aim is to dissociate
the orderly funding of the UN from the whims of the US administrations and if
Member States are not prepared to increase substantially its budget, the only
rational solution is those Member States having economic primacy to increase
their share in the budget and decrease the share of the USA.
6. Concluding thoughts
In September 2017, the Secretary‐General during remarks at a high‐level
event on UN reform said that “Someone recently asked what keeps me up at
night. My answer was simple: bureaucracy; fragmented structures; Byzantine
procedures; endless red tape” 44. These remarks rather show that the supposed
reform does not really concern how the whole Organization can change for the
better, how the Charter will be revised to allow the UN to acquire the neces‐
sary legal tools to carry its tasks more effectively but only how to change the
way the Secretariat operates (hence the references to Byzantine procedures and
endless red tape) and how to better coordinate the endless number of actors
(hence the references to fragmented structures)45. This view of the Secretary‐
General was also reflected in his latest Report of the work of the UN, where it
was argued that “The Organization requires systems, policies and procedures
that bring decision‐making closer to the point of delivery and empower senior
management to deliver on their programmes”46.
It is the present authors’ belief that the UN, like any other intergovernmen‐
tal organization, exists to provide the best possible services to its membership,
which, in return, have the obligation to fulfill in full the whole range of duties
which they freely accepted when the joined the Organization. This timeless
quid pro quo, this relationship between give and take and between provision
and consideration47, cannot continue to be based on the understandings and
the assumptions that existed at the end of World War II. As a matter of ur‐
gency, the whole rapport between the UN and its membership and vice versa
requires a new foundation.
See http://www.imf.org/external/datamapper/NGDPD@WEO/OEMDC/ADVEC/WEO
WORLD.
44 See UN Press Release SG/SM/18685‐ORG/1654, 18 September 2017.
45 Cf. the proposals made by Louis B. Sohn for improving the operation of the principal UN
organs in October 2007 from the podium of the American Journal of International Law, at:
https://www.globalpolicy.org/component/content/article/200/41369.html.
46 See UNGA, Report of the Secretary‐General on the work of the Organization, UN Doc.
A/72/1, 28 July 2017, para. 144.
47 The argument that the UN constitutes a ‘cooperative enterprise’, see Goodrich, L. M.,
‘From League of Nations to United Nations’, International Organizations 1 (1) (1947), pp. 3, 7, is
still valid.
43
116
If this fails to take place, the question ought to be asked who benefits from
the continued operation of an ineffective Organization, which was based on
the rationale that “winner takes it all”. Despite the fact that some of the win‐
ners of World War II have become opponents, even foes, arguably a crippled
UN continues to serve their needs and various pursuits. But today the UN is
not about and cannot be about serving this group of states. For decades now,
there are tens of other states which should have an equal title to use the UN for
their own aspirations. If the prevailing until today reasoning of the few and
great nations does not change soon, the centenary of the UN will find it strug‐
gling to cope with an antiquated Charter. And since the Secretary‐General
spoke about Byzantine procedures, one should not forget that it was the Ro‐
man Empire’s reformation under Constantine the Great which breathed new
air to ailing institutions and created a brave new world.
The United Nations and Nuclear Weapons
Constantine Antonopoulos
Associate Professor, Faculty of Law, Democritus University of Thrace
1. Introduction
It is common belief that “nuclear weapons are the most dangerous weapons
on earth”1. As the International Court of Justice (ICJ) remarked in the Legality
of the Threat or Use of Nuclear Weapons Advisory Opinion “… The destruc‐
tive power of nuclear weapons cannot be contained in either space or time.
They have the potential to destroy all civilization and the entire ecosystem of
the planet” 2. This was tragically established by the experience of their first use
at Hiroshima and Nagasaki in August 1945. In the following decades it became
clear that their next use would not be against an undefended target and that re‐
taliation would cause human and ecological catastrophe on a large scale3.
As a result, a multifaceted movement has evolved aiming at the prohibition
of nuclear weapons and involving many States, the United Nations (UN),
many NGOs4 and civil society. It is, however, the UN that has central role in
addressing the issue of nuclear weapons and nuclear disarmament that has
been the subject of occupation of its two main political organs (the General As‐
sembly (GA) and the Security Council (SC)), the ICJ and the Secretary General
(SG). The following sections shall address and evaluate the work of these UN
organs and the Secretary General in relation to nuclear weapons control and
nuclear disarmament.
2. The General Assembly
The occupation of the General Assembly with the issue of nuclear weapons
has been continuous since its first session and its very first resolution. GA Res.
1 (I) of 24 January 1946 established a Commission “to deal with the problems
raised by the discovery of atomic energy and other related matters”; the Com‐
mission was specifically mandated to make proposals “… (b) for the control of
Nuclear Weapons, United Nations Office for Disarmament Affairs (UNODA), https://www.
un.org/disarmament/wmd/nuclear/ [last visit 28.3.2018].
2 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ
Rep. 1996, 226, 243, par. 35.
3 Good Faith Negotiations Leading to the Total Elimination of Nuclear Weapons, Legal
Memorandum, International Association of Lawyers against Nuclear Arms & International Hu‐
man Rights Clinic, Human Rights Program, Harvard Law School 2009, Foreword by Judge C.G.
Weeramantry, iii.
4 One such organization, the International Campaign to Abolish Nuclear Weapons (ICAN)
was awarded the Nobel Peace Prize in 2017. “ICAN just won the Nobel Peace Prize: What is
ICAN?” USA Today, Oct. 6, 2017, at https://www.usatoday.com/story/news/world/2017/10/06/
ican‐just‐won‐nobel‐peace‐prize‐what‐ican/738744001/ [last visit 28.3.2018].
1
118
atomic energy to the extent necessary to ensure its use only for peaceful pur‐
poses; (c) for the elimination from national armaments of atomic weapons and
of all other major weapons adaptable to mass destruction; …”5 There was no
meaningful follow‐up, however, because by 1963 the US ceased to be the only
nuclear power as the former USSR, France, the UK and the People’s Republic
of China acquired nuclear weapons. These States have full awareness of the
consequences of the use of nuclear weapons, but they continue to assert the
usefulness of possessing them as part of a policy of deterrence against future
threats to their security6.
At the same time they have not wished the expansion of the number of nu‐
clear possessing States beyond their own exclusive group. Therefore, beyond
the work of the First Committee of the GA, they supported the initiation of a
treaty‐making practice sponsored by the GA and the introduction of perma‐
nent institutional mechanisms within the UN framework that represent a scal‐
able tackling of the issue of possession and use of nuclear weapons. This prac‐
tice was launched with the conclusion of the 1963 Convention on Partial Ban of
Nuclear Tests in the Atmosphere, in Outer Space and Under Water7; it contin‐
ued with the 1968 Convention on Non‐Proliferation of Nuclear Weapons
(NPT)8; GA Res. 2 (S‐10)9 that established a permanent nuclear Disarmament
Conference that is in session until today; the conclusion of the 1996 Compre‐
hensive Nuclear Test Ban Treaty10 and culminated with the Treaty on the Pro‐
hibition of Nuclear Weapons of July 201711. The NPT and the Convention on
the Prohibition of Nuclear Weapons are particularly important.
2.1. The Convention on the Non‐Proliferation of Nuclear Weapons (1968)
The NPT has a prominent place in the long quest for nuclear disarmament.
At the time of the conclusion of NPT, only the five permanent members of the
SC possessed nuclear weapons and it is only these States that this treaty admits
and legitimizes as “nuclear possessing States”. This means that any State wish‐
ing to accede to the NPT may do so only as a State that does not possess nu‐
clear weapons, whether this is a fact or not. The object and purpose of NPT is
non‐proliferation, nuclear disarmament and the peaceful use of nuclear en‐
ergy. However, the imbalance that exists under the NPT between security and
GA Res. 1(I) Establishment of a Commission to Deal with the Problems Raised by the Dis‐
covery of Atomic Energy, 17th mtg, 24 January 1946, Preamble and par. 5 (b) (c).
6 Nuclear Weapons Advisory Opinion.
7 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Wa‐
ter, 5 August 1963 http://disarmament.un.org/treaties/t/test_ban [last visit 28.3.2018].
8 Treaty on the Non‐Proliferation of Nuclear Weapons, 1 July 1968, http://disarmament.un.
org/treaties/t/npt [last visit 28.3.2018].
9 GA Res. S‐10/2 of 30 June 1978.
10 Comprehensive Nuclear‐Test‐Ban Treaty, 24 September 1996 http://disarmament.un.org/
treaties/t/ctbt [last visit 28.3.2018].
11 Treaty on the Prohibition of Nuclear Weapons, 7 July 2017, text in http://disarmament.un.
org/treaties/t/tpnw/text [last visit 28.3.2018].
5
119
the special status or political‐military privilege of possessing nuclear weapons
is sought to be redressed by Article VI of the Treaty.
Article VI of the NPT introduces the obligation upon “nuclear‐States” to en‐
ter into negotiations conducted in good faith so as to cease nuclear arms race,
achieve nuclear disarmament and conclude a new treaty on general and com‐
plete nuclear disarmament. The NPT entered into force in 1970 initially for a
period of twenty‐five years, its application was to be evaluated every five
years, and it has 191 State‐parties and is of indefinite duration since 1995. The
NPT has no universal participation and has not succeeded in preventing the
proliferation of nuclear weapons; three States, India, Pakistan and Israel, which
had never ratified the Convention, have acquired nuclear weapons, while a
fourth State, North Korea, deliberately withdrew from NPT in 2003 and devel‐
oped a nuclear arsenal12. Even though the NPT is well short of achieving its ob‐
ject it does constitute one of the most important multilateral treaties in force
and has served as the stepping stone towards the conclusion of the Treaty on
the Prohibition of Nuclear Weapons in 2017.
2.2. The Treaty on the Prohibition of Nuclear Weapons (2017)
This recent international treaty is of historic significance because it intro‐
duces a total and comprehensive prohibition of the deployment, testing, manu‐
facture, threat or use of nuclear weapons (Article 1) in a manner analogous to
conventions prohibiting weapons of mass destruction. The treaty does not al‐
low reservations and requires fifty ratifications to come into force. The treaty
opened for signature in September 2017. Fifty‐seven States have so far signed
the treaty and seven have ratified it13.
Negotiations commenced by virtue of GA Res. 71/258 in November 2016
with the participation of 124 States, except those possessing nuclear weapons
and NATO members (except the Netherlands). The treaty was adopted with
votes 122 – 1 (Netherlands) – (Singapore). Article 4 (2) offers nuclear States the
opportunity either to abolish their arsenals first and then become parties or the
other way around, namely, become parties and subsequently destroy their nu‐
clear weapons. In the former case they are under the obligation to cooperate
with a “competent international authority” (which is not identified in the
treaty) for the purpose of verifying the destruction of their nuclear arsenal,
while in the latter case nuclear States are required to immediately remove their
weapons from operational status to be destroyed “as soon as possible, but no
later than a deadline to be determined by the first meeting of States Parties, in
accordance with a legally binding, time‐bound plan for the verified and irre‐
versible elimination of that State Party’s nuclear weapons programme …” and
submit this plan within sixty days. Article 17 (2) allows withdrawal from the
treaty if a party “… in exercising its national sovereignty … decides that ex‐
traordinary events related the subject matter of the Treaty have jeopardized the
Gillis, M., Disarmament. A Basic Guide, 4th ed. (New York: UNODA, 2017), pp. 26‐27.
13 Cuba, Guyana, Holy See, Mexico, Venezuela, Palestine and Thailand.
12
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supreme interests of its country …”.
The notification of withdrawal is required to include a statement of the
events jeopardizing the party’s supreme interests, whereas, Article 17 (3) pro‐
vides that withdrawal shall take effect “12 months after the date of the receipt
of the notification of withdrawal by the Depositary.” The same provision14,
however, stipulates that “[I]f … on the expiry of that 12‐month period, the
withdrawing State party is a party to an armed conflict, the State party shall
continue to be bound by the obligations of this Treaty and of any additional
protocols until it is no longer party to an armed conflict.”
3. The Security Council
The SC has dealt with the issue of nuclear weapons either in the general
context of its primary responsibility for the maintenance of international peace
and security under Article 24 UN Charter or in the more specialized context of
Chapter VII of the Charter with respect to the conduct of a specific State that
the Council has determined to constitute a threat to the peace.
The former contingency is illustrated by (a) SC Res. 984 (1995) that included
the assurance of nuclear States of no first use of nuclear weapons; (b) SC Res.
1172 (1998) that condemned the acquisition of nuclear arms by India and Paki‐
stan but adopted no further measures against them; (c) SC Res. 1540 (2004) that
imposes on all States the obligation to refrain from any form of support to non‐
State actors that aspire to acquire weapons of mass destruction; (d) SC Res.
2310 (2016) that urges all States to ratify the Comprehensive Nuclear Test Ban
Treaty. SC Res. 2310 was not unanimously adopted; Egypt abstained and ex‐
plained its stance on the absence of any reference to Article VI of the NPT in
the operative part of the resolution. The latter contingency is represented by
the SC action in relation to the nuclear programmes of Iran15 and North Ko‐
rea16.
4. The International Court of Justice
The ICJ has dealt with the question of nuclear weapons on three occasions.
First, in Nuclear Tests case (Australia and New Zealand v. France) (1974)
the Court rejected the applications of Australia and New Zealand instituting
proceedings against France for conducting atmospheric nuclear tests in the Pa‐
cific on grounds of inadmissibility. The Court ruled that a series of unilateral
declarations by the President and Foreign Minister of the French Republic that
France would not conduct any further atmospheric nuclear tests (after the con‐
Article 17 (3).
See SC Res. 1737 (2006) of 23 December 2006; SC Res. 1747 (2007) of 24 March 2007; SC Res.
1803 (2008) of 3 March 2008 and SC Res. 1929 (2010) of 9 June 2010.
16 See SC Res. 1718 (2006) of 14 October 2006; SC Res. 1874 (2009) of 12 June 2009; SC Res.
2087 (2013) of 27 January 2013; SC Res. 2094 (2013) of 7 March 2013; SC Res. 2270 (2016) of 2
March 2016; 2321 (2016) of 30 November 2016; SC Res. 2371 (2017) of 5 August 2017; SC Res.
2375 (2017) of 3 September 2017 and SC Res. 2937 (2017) of 22 December 2017.
14
15
121
clusion of those already conducted) were binding on France and, as a result,
the case had no object17.
Second, in Nuclear Weapons Advisory Opinion (1996) 18 the Court ruled
that even though there was no express prohibition of nuclear weapons either
on the basis of treaty or customary international law19, their use had to be in
conformity with international humanitarian law, especially, the principles of
distinction (between combatants and non‐combatants, and between military
targets and civilian objects), and the non‐infliction of unnecessary suffering20.
However, in relation to the right of self‐defence the Court ruled that it could
not decide beyond doubt whether the use of nuclear weapons was or was not
lawful when the very survival of the State was in extreme peril21.
At the same time, the Court made a very interesting obiter dictum. It dealt
with Article VI of the NPT and ruled that it introduced not only an obligation
of conduct but an obligation of result as well; in other words, in the opinion of
the Court, all contracting parties to the NPT, and especially the nuclear States,
were under the obligation both to conduct negotiations towards nuclear dis‐
armament and by virtue of the principle of good faith to ensure that these ne‐
gotiations reached a successful conclusion22. Thus, following up the Advisory
Opinion the GA adopts a resolution every year calling on all States to imple‐
ment the above ICJ dictum23.
Third, in Marshall Islands v. India/Pakistan/UK (2016) the Court for the first
time in its history (and the history of its predecessor, the PCIJ) rejected an ap‐
plication instituting proceedings on the basis of the non‐existence of a dispute
for, in its view, none of the respondent States had been objectively aware that
their positions on the obligation to negotiate under Article Vi NPT had met the
express opposition of the applicant. The Court reached its Judgments with
votes 9 to 7 (Marshall Islands v. India, Marshall Islands v. Pakistan) and 8 to 8
with the President’s casting vote (Marshall Islands v. UK)24.
Nuclear Tests Case (Australia v. France), ICJ Rep. 1974, 253, 264‐268, 270‐272. Nuclear Tests
Case (New Zealand v. France), ICJ Rep. 1974, 457, 468‐477.
18 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ
Rep. 1996, 226.
19 ICJ Rep. 1996, 226, 247‐255, par. 52‐73.
20 ICJ Rep. 1996, 226, 257, 259, 262, par. 78, 85‐86, 95.
21 ICJ Rep. 1996, 226, 263, par. 96.
22 ICJ Rep. 1996, 226, 263‐265, par. 98‐103.
23 See, for instance, GA Res. 71/58 of 5 December 2016.
24 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and
to Nuclear Disarmament (Marshall Islands v. UK) (Preliminary Objections), ICJ Rep. 2016, 833,
850, par. 41; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. India) (Preliminary Objections), ICJ Rep.
2016, 255, 271, par. 38; Obligations Concerning Negotiations Relating to Cessation of the Nuclear
Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan) (Preliminary Objections),
ICJ Rep. 2016, 552, 568, par. 38.
17
122
5. The Secretary General
The UN Secretary General acting jointly with the GA or the SC participates
actively by way of reports and proposals in the quest for nuclear disarmament.
One of the most prominent such contributions has been Secretary General Ban
Ki‐Moon’s five proposals for nuclear disarmament of 24 October 200825: (a) the
fulfillment of the obligation under Article VI of the NPT; (b) consultations
among the five permanent members of the SC on the process of nuclear disar‐
mament; (c) enhancing the rule of law through the fulfillment of international
obligations under the treaties in force and the ratification of the Comprehen‐
sive Nuclear Test ban Treaty; (d) transparency and accountability with regard
to the fulfillment of the above goals and (e) the adoption of a series of comple‐
mentary measures, such as the prohibition of all weapons of mass destruction
and the restrictions upon conventional weapons, measures against the acquisi‐
tion of weapons of mass destruction by terrorist groups.
6. Evaluation‐Conclusion
The issue of nuclear weapons has been very high on the agenda of the UN
since the establishment of the organization and the goal has been consistently
nuclear disarmament and the elimination of nuclear weapons. The achieve‐
ment of this goal is pursued through cooperation and consent. The whole
process is slow; it faces the unwillingness of nuclear powers to eliminate their
arsenals; it failed in preventing States from becoming nuclear powers or in dis‐
couraging some States to do the same. The US was the only State possessing
nuclear weapons when the UN was founded and within twenty years all five
permanent members of the SC had acquired nuclear weapons. Their will has
always been to remain the only nuclear powers and they have acknowledged
that further proliferation of nuclear weapons would be detrimental to world
peace and security.
The above conviction has been the driving force behind the NPT of 1968.
Article VI of the NPT has been a significant stride laying the burden of obliga‐
tion to negotiate in good faith the elimination of their arsenals basically on the
nuclear States. This has never been achieved, because these States have
adopted a rather narrow approach towards this obligation by taking the view
that arms control treaties or periodic disarmament conferences constitute ful‐
fillment of the obligation of Article VI26. Moreover, the NPT has not prevented
the widening of the nuclear States group with the addition of four more States,
three of which (Israel. India and Pakistan) have never become parties to the
Secretary‐General’s Address to the East‐West Institute entitled: “The United Nations and
security in a nuclear‐weapon‐free world”, 24 October 2008, <https://www.un.org/sg/en/content/
sg/statement/2008‐10‐24/secretary‐generals‐address‐east‐west‐institute‐entitled‐united>
[Last
visit 28.3.2018].
26 See statements by India and The Netherlands, Follow‐up to the 2013 high‐level meeting of
the General Assembly on nuclear disarmament, Report of the Secretary‐General, 11 July 2016,
Doc. A/71/131.
25
123
NPT whereas he fourth (North Korea) deliberately denounced it in 2003 in or‐
der to develop a nuclear arsenal.
The rationale of the NPT that is substantially premised on the formal recog‐
nition by way of treaty of the exclusive right to possess nuclear weapons to the
only States possessing nuclear arms at the time of its adoption failed to secure
non‐proliferation or nuclear disarmament. It has nevertheless introduced the
obligation of Article VI, which, it is submitted, has evolved into an obligation
of customary law: It is a norm‐creating provision and no reservation has been
appended to it; the NPT is of wide participation (currently, it has 191 State par‐
ties) and includes States with particular interest in its subject‐matter. In Nu‐
clear Weapons advisory opinion the ICJ stated without restricting its ruling to
the NPT contracting States that the obligation under Article VI is to conduct
negotiations in good faith in order to reach agreement on complete nuclear
disarmament. The UN GA calls upon all States to fulfill the above obligation
every year. Moreover, in pursuance of Article 7 of the NPT a number of re‐
gional multilateral treaties have been concluded that ban nuclear arms in spe‐
cific geographical regions.
The initiation of the process that led to the conclusion of the Treaty on the
Prohibition of Nuclear Weapons of 2017 came as a reaction to the failure to
carry out the obligation of Article VI of the NPT. The 2017 Treaty is not in force
yet and it may equally not be foretold if it ever evolves into customary law.
The tendency, however, towards this goal exists27, as the ICJ found in Nuclear
Weapons, and it is possible that the nuclear powers shall become persistent ob‐
jectors that they would not be in a position to prevent the creation of a custom‐
ary law rule prohibiting nuclear weapons. As such they shall not be bound by
this rule but it will be doubtful if they use their nuclear weapons without vio‐
lating a host of rules of international law, in particular the rules of the law of
armed conflict.
The ICJ had the chance on three occasions to rule on the legality or not of
nuclear tests, the use or the prohibition of nuclear weapons but it manifested
diffidence. In two contentious proceedings (Nuclear Tests and Marshall Is‐
lands cases) the Court has rejected the applications on grounds of lack of juris‐
diction and admissibility giving rise to strong criticism. In Nuclear Weapons,
while the reasoning of the Court may reasonably be said to allude to the ille‐
gality of the use of nuclear weapons, the opinion of the Court falls short of ex‐
pressly stating it.
The question of the use of nuclear weapons (as well as nuclear testing) is a
matter of high political charge and this may explain the reluctance of the Court
to address it. But the past practice of the Court does not justify such an ap‐
proach of diffidence for it did not refrain from resolving disputes or give advi‐
sory opinions on issues such as the use of force or secession. All States, both
See statements by Argentina, Chile, Colombia, Cuba, Iran, Kazakhstan, Mexico, Members
of the Movement of Non‐Aligned Countries, Follow‐up to the 2013 high‐level meeting of the
General Assembly on nuclear disarmament, Report of the Secretary‐General, 11 July 2016, Doc.
A/71/131.
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nuclear powers and other, are plainly well aware of the devastating results of
the use of nuclear weapons. It is interesting that no government has specific
contingency plans for the day after a big nuclear explosion28. This is possibly
because everyone knows that catastrophe shall be so widespread that the situa‐
tion the day after shall not be manageable. As there is a clear tendency in State
practice towards the prohibition of nuclear weapons and their use raises many
issues of international law, a ruling by the ICJ is necessary for the Court is the
most authoritative interpreter of the law.
The recent exchange of threats of the use of nuclear weapons between the
US and North Korea has revealed the myth of the doctrine of deterrence as a
justification for the maintenance of nuclear arms29. The prospect of mutual de‐
struction between States that possess nuclear weapons is not a guarantee for
their non‐use, as the balance of power was not a guarantee against the out‐
break of World War I. The sense of military superiority that is attendant to the
possession of nuclear weapons is likely to lead a government to believe in the
effectiveness of first nuclear strike obscuring the fact of retaliation with the
same means. We may only hope that the UN through its political organs to
persist on the slow but progressive effort towards the elimination of nuclear
weapons.
See generally, Fihn, B. (ed.) Unspeakable Suffering. The Humanitarian Impact of Nuclear
Weapons. (Geneva, 2013).
29 Cf. ICJ Rep. 1996, 226, 254, 263, par. 67, 96.
28
Libyen, Syrien, Jemen …
Ein vorzeitiges Absterben der „Schutzverantwortung“
(Responsibility to Protect)?
Ioannis Stribis
Associate Professor, Department of Mediterranean Studies, University of Ae‐
gean
1. Internationale Krisen ‐ Humanitäre Krisen und die Frage nach der Legali‐
tät militärischer Gewalteinsätze
Am 17. März 2011 hat der Sicherheitsrat (SR) der Vereinten Nationen (VN)
unter mehrheitlicher Zustimmung die Resolution 1973 verabschiedet, mit der
der SR die Mitgliedstaaten der VN ermächtigte, u.a. entweder einzelstaatlich
oder über regionale Organisationen oder Abmachungen alles Notwendige zu
tun, um die einem Angriff innerhalb Libyens ausgesetzte Zivilbevölkerung zu
schützen1. Anhand dieser Formulierung erlaubte der SR den Mitgliedstaaten
den Gewalteinsatz, sofern sie dazu bereit wären, um die Zivilbevölkerung bei
Demonstrationen gegen das Gaddafi‐Regime vor Angriffen libyscher Streit‐
kräfte zu schützen.
Zwei Tage nach der Verabschiedung der Resolution 1973 begann eine Koali‐
tion einiger Staaten hauptsächlich unter französisch‐britischer Führung mit
operativer Unterstützung der USA und der NATO die militärische Interventi‐
on gegen Libyen (mit der Unterstützung der bewaffneten Opposition der Re‐
gierung des Landes), welche zur Ermordung des Obersts Gaddafi und dem
Sturz seines Regimes im Oktober 2011 führte.
Die Resolution 1973 (2011) wurde von einiger Kommentatoren als Umset‐
zung der berühmten „Schutzverantwortung“ (Responsibility‐to‐Protect) be‐
grüßt2. Nur wenige äußerten Vorbehalte3. Dennoch zwingt uns das Verhalten
Drei Wochen vorher hatte der SR die Resolution 1970 einstimmig verabschiedet, mit der er
die Situation in Libyen an den Internationalen Strafgerichtshof verwies und aufgrund des Ar‐
tikels 41 UN‐Charta Libyen Sanktionen auferlegte (Waffenembargo, Einfrieren von Vermögen‐
swerten und Reiseverbot für die Elite der libyschen Regierung).
2 Powell, C., „Libya: A Multilateral Constitutional Moment?,“ American Journal of Interna‐
tional Law (2012), pp. 298‐316, Hilpold, P., „Intervening in the Name of Humanity: R2P and the
Power of Ideas,“ Journal of Conflict and Security Law (2012), pp. 49–79, Williams, P., „The Road
to Humanitarian War in Libya,“ Global Responsibility to Protect (2011), pp. 248–259, Lehmann,
V., Schütte, R., Die Zukunft der ‚Responsibility to Protect‘ nach dem Fall Gaddafis. (Berlin: Frie‐
drich‐Ebert‐Stiftung 2011), Bellamy, A., „Libya and the Responsibility to Protect: The Exception
and the Norm,“ Ethics and International Affairs (2011), http://www.carnegiecouncil.org/ publi‐
cations/journal/25_3/index.html, Berti, B., Lindenstrauss, G. „The International Action in Libya:
Revitalizing the Responsibility,“ INSS Insight No. 250, April 5, 2011, Patrick, S., „Libya and the
Future of Humanitarian Intervention,“ Foreign Affairs, 26.8.2011, www.foreignaffairs.com/ arti‐
cles/68233/stewart‐patrick/libya‐and‐the‐future‐of‐humanitarian‐intervention, Payandeh, M.,
„The United Nations, Military Intervention and Regime Change in Libya“, Virginia Journal of
International Law (2012), pp. 355‐403.
3 Berman, D., Michaelsen, C., „Intervention in Libya: Another Nail in the Coffin for the Re‐
1
126
des SR und seiner Mitglieder, vor allem der ständigen Mitglieder, den Text der
Resolution und die Umstände, unter denen sie verabschiedet wurde, abermals
zu untersuchen, um ein genaueres Ergebnis über das Verhältnis der Handlung
des SR im Fall Libyens zur Schutzverantwortung zu erhalten.
Bis 2011 gab es im positiven Recht keine Vorschrift zur Anwendung der
Schutzverantwortung. Diese stellte lediglich ein politisches Prinzip dar, even‐
tuell auch eine politische Verpflichtung4. Aus rechtlicher Sicht gehörte es zur
Problematik einer im Entstehen begriffenen Norm5. Statt also die Bildung eines
normativen Konsenses durchzuführen, bevorzugen gewisse Politiker, Befür‐
worter der Schutzverantwortung, als unmittelbare Herausforderung dieses
Begriffs die Untersuchung der Möglichkeiten ihrer Umsetzung. Diese schein‐
bar realistische Position ignoriert allerdings, dass für viele Staaten und andere
internationale Akteure, laut eigener Aussage, die Klärung der rechtlichen Basis
der Schutzverantwortung eine absolut wichtige Voraussetzung für eine ent‐
sprechend dieser Verantwortung auszuführende Handlung ist.
Hierbei hängt die Handlung gänzlich von der Legalität ab, insbesondere
wenn die Verwirklichung der Schutzverantwortung die im Grunde verbotene
Anwendung der Waffengewalt impliziert. Da es eine Diskussion gab, die bis
heute dominiert, über die Zweckmäßigkeit der Schutzverantwortung, die Be‐
dingungen ihrer Anwendung und schließlich ihre Wirksamkeit, speziell in Be‐
zug auf den Bereich, der den Einsatz von Waffengewalt zur Abwendung von
Verbrechen gegen die Menschlichkeit und von Kriegsverbrechen impliziert (o‐
der auferlegt), sei hier angesichts der gegensätzlichen Ergebnisse6 darauf hin‐
gewiesen, dass sich die vorliegende Studie nicht mit der Zweckmäßigkeit der
Schutzverantwortung, sondern mit ihrer Verbindlichkeit, insbesondere in Be‐
zug auf die Rechtfertigung eines Gewalteinsatzes, auseinandersetzt.
Dementsprechend liegt der Nutzen der Studie darin, ausgehend von der
aufgrund der SR‐Resolution 1973 erfolgten Intervention in Libyen das politi‐
sponsibility‐to‐Protect?“, International Community Law Review, (2012), pp. 337‐358, Ronzitti,
N., „NATOʹs Intervention in Libya: a Genuine Action to Protect a Civilian Population in Mortal
Danger or an Intervention Aimed at Regime Change?“, Italian Yearbook of International Law,
(2011), pp. 3‐20, Chesterman, S., „‘Leading from Behind’: The Responsibility to Protect, the
Obama Doctrine, and Humanitarian Intervention after Libya“, Ethics and International Affairs,
(2011), http://www.carnegiecouncil.org/publications/journal/25_3/index.html, Merkel, R., „Die
Intervention der Nato in Libyen. Völkerrechtliche und rechtsphilosophische Überlegungen zu
einem weltpolitischen Trauerspiel“, Zeitschrift für Internationale Strafrechtsdogmatik, (2011),
pp. 771‐783; Rudolf, P., Schutzverantwortung und humanitäre Intervention: Eine ethische Be‐
wertung der „Responsibility to Protect“ im Lichte des Libyen‐Einsatzes. (Berlin: Stiftung Wis‐
senschaft und Politik Deutsches Institut für Internationale Politik und Sicherheit), pp. 5‐10.
4 Ebd.
5 Siehe stellvertretend Peters, A., „The Security Council’s Responsibility to Protect,“ Interna‐
tional Organizations Law Review, (2011), pp. 4‐13, Berman, D., Michaelsen, C. „Intervention in
Libya: Another Nail in the Coffin for the Responsibility‐to‐Protect?” (wie Anm. 3), pp. 338‐349.
6 Für eine zuletzt erschienene Zusammenfassung der einschlägigen Argumentation s. Ak‐
senyonok, A., „The Civil War in Syria: Regional and Global Issues“, Russia and Israel in the
Changing Middle East. Conference Proceedings (Zvi Magen – Vitaly Naumkin, Hrsg.), Institute
for National Security Studies Memorandum No. 129, July 2013, Tel Aviv, S. 39‐43.
127
sche Prinzip der Schutzverantwortung dahingehend zu ändern, dass darüber
entschieden wird, ob sie als rechtliche Vorschrift gelten soll oder nicht, sowie
eine Antwort auf die Frage nach den diesbezüglichen Folgen der Handlung
(Intervention oder Zurückhaltung) des SR in den anschließenden Krisen
(hauptsächlich in Syrien, aber auch im Jemen) zu liefern.
2. Die Schutzverantwortung und die Anwendung von Waffengewalt
Das 20. Jh. kennzeichnet sich durch den Versuch, die Ermessensfreiheit der
Staaten hinsichtlich des Gewalteinsatzes in den internationalen Beziehungen
einzuschränken. Dieser Versuch scheint nach der traumatischen Erfahrung des
Zweiten Weltkrieges mit Erfolg gekrönt zu werden, der zu einem allgemeinen
Verbot von Waffengewalt bei internationalen Beziehungen führt (Artikel 2,
Absatz 4 UN‐Charta und Gewohnheitsrecht7). Das positive Recht lässt zwei
Ausnahmen dieses allgemeinen Verbots zu, einerseits als Maßnahme kollekti‐
ver Sicherheit, die der SR nach Kapitel VII UN‐Charta (Artikel 39ff., besonders
Artikel 42) ergreifen kann, sowie nach einer Ermächtigung durch regionale
Organisationen oder Abmachungen kraft des Kapitels VIII UN‐Charta (Artikel
52‐54, besonders 53, Absatz 1), und andererseits durch das Recht auf Selbstver‐
teidigung zur Abwendung eines bewaffneten Angriffs (Artikel 51 UN‐Charta
und völkerrechtliches Gewohnheitsrecht).
Die militärische Intervention im Frühling 1999 gegen die Bundesrepublik
Jugoslawien (BRJ) aus Anlass der Klage hinsichtlich der ethnischen Säuberung
gegen das albanische Element des Kosovo, die von den eingreifenden Staaten
als „humanitäre Intervention“ bezeichnet wurde, eröffnete eine große Diskus‐
sion über die Möglichkeit, Recht¬mäßigkeit, Zweckmäßigkeit usw. einer zu‐
sätzlichen Ausnahme des Gewaltverbots für den Fall, bei dem die Waffenge‐
walt zur Abwendung mannigfacher Verstöße gegen die Menschenrechte ein‐
gesetzt wird. Es handelt sich um die bekannte Problematik der sogenannten
„humanitären Intervention“8.
Die negativen Assoziationen des Begriffs „Intervention“ in den internatio‐
nalen Beziehungen und seine Geringschätzung im Völkerrecht haben bereits
früher zur Suche nach einem anderen Begriff für diese Bedeutung geführt. Die
am besten bekannten Begriffe, die zeitweise verwendet wurden, sind „humani‐
täre Einmischung“, „humanitärer Beitrag“, „Berechtigung zur Einmischung“
oder „Pflicht zur Einmischung“9. Die Ungenauigkeit und die Schwankung der
IGH, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA),
Merits, Judgment, 27 June 1986, I.C.J. Reports 1986, Abs. 187‐192, S. 98‐102.
8 Siehe Rougier, A., „La théorie de l’intervention d’humanité“, RGDIP, 1910, S. 468ff. Von ei‐
ner humanitären Intervention war die Rede vor einigen Jahrzehnten bei der NATO Intervention
in der BRJ sowie bei den militärischen Interventionen von Indien und Vietnam gegen das
(damalige) Ostpakistan (Bangladesch) und die (damalige) Demokratische Kampuchea (Kam‐
bodscha). In diesen Fällen handelte es sich um die Intervention nur eines Staates, während sich
die syllogistische Betrachtung der humanitären Intervention auf die Untersuchung älterer Be‐
griffe beschränkte.
9
«Ingérence humanitaire», «assistance humanitaire», «droit d’ingérence», «devoir
7
128
verwendeten Begriffe lagen nicht gänzlich an der Notwendigkeit einer Wort‐
prägung, sondern ebenso sehr an der mangelnden theoretischen Auseinander‐
setzung mit der Bedeutung, die gelegentlich uneinheitlichen Sinn beinhaltete.
Die durch die Intervention im Kosovo angeregte heftige Debatte erzeugte
die Notwendigkeit einer vollständigeren theoretischen Bearbeitung des Phä‐
nomens der „humanitären Intervention“, insbesondere seitens derjenigen Ak‐
teure, die nach der Modernisierung des Begriffs sowie nach seiner Befreiung
von negativem historischem Ballast verlangten. Mit der Initiative der kanadi‐
schen Regierung wurde dieses Werk von einer Gruppe Sachverständiger ü‐
bernommen, der International Commission on Intervention and State Sove‐
reignty (ICISS), die einen langen Bericht mit dem Titel The Responsibility to
Protect herausgab10.
In diesem Bericht wurde der Versuch unternommen, das Konzept der „hu‐
manitären Intervention“ an einen Begriff der staatlichen Souveränität anzupas‐
sen, die dem Staat nicht nur Rechte, sondern auch Pflichten zuschreibt. Dies
geschah mit der Verstärkung der bis zur damaligen Zeit bestehenden dürfti‐
gen Auffassung der Souveränität auch als Verantwortung der Staaten. Hierbei
handelte es sich um einen vernachlässigten Aspekt der staatlichen Souveräni‐
tät, der auf politischer Ebene als Macht und Recht verstanden wurde11.
Innerhalb dieser Bemühung der Neuorientierung der Diskussion auf theo‐
retischer und praktischer Ebene, was nach den schmerzhaften Erfahrungen in
Ruanda und Bosnien‐Herzegowina gefordert wurde, trachtete die ICISS da‐
nach, möglichst viele Möglichkeiten abzudecken, die die vorgeschlagene
Schutzverantwortung mobilisieren würden. Durch die Verbindung der
Schutzverantwortung mit der menschlichen Sicherheit (human security)
schlug die ICISS die Anwendung der Schutzverantwortung in den Fällen vor,
in denen Personen einem Bürgerkrieg, einem Aufstand und staatlicher Unter‐
drückung ausgesetzt sind. Speziell für die militärische Intervention allerdings
sah sie als notwendige Voraussetzung den Verlust einer beachtlichen Menge
von Menschenleben an, unabhängig davon, ob er durch Genozid, ethnische
Säuberung, die Morde impliziert, Zwangsvertreibungen, Schrecken oder Ver‐
gewaltigungen, Verbrechen gegen die Menschlichkeit, Verstöße gegen das
Kriegsrecht, Hungersnot, Bürgerkrieg, sogar ökologische und Naturkatastro‐
phen verursacht wurde.
Der Bericht der ICISS löste viele Diskussionen aus, welche im Widerhall der
militärischen Intervention der NATO in die BRJ auch die VN beschäftigten,
wie zu erwarten war. Das Thema der Schutzverantwortung stand auf der Ta‐
gesordnung des Weltgipfels, der zum sechzigjährigen Jubiläum der VN am
14.‐16. September 2005 in New York mit der Teilnahme von über 160 Staats‐
oder Regierungsoberhäuptern veranstaltet wurde12.
d’ingérence».
10 The Responsibility to Protect, Report of the International Commission on Intervention and
State Sovereignty, Dezember 2001.
11 Ebd. Abs. 2.31, S. 18; Abs. 4.19, S. 37; Abs. 4.20, S. 37‐38.
12 World Summit Outcome Document (wie Anm. 4), Ziffer 138‐139.
129
Dieser Gipfelkongress verabschiedete einen Schlussbericht in Form einer
Resolution mit dem Titel Ergebnis des Weltgipfels, in dem auch die Schutzver‐
antwortung berücksichtigt wurde. Im Ergebnis des Weltgipfels wurde der
Begriff Schutzverantwortung übernommen, jedoch mit einem Inhalt belegt,
der sich weitgehend von dem der ICISS unterscheidet. Die Änderung begann
sich in zwei vorhergehenden im Rahmen der VN unternommenen Beschrei‐
bungsversuchen der Schutzverantwortung bemerkbar zu machen, die sich vor
dem Ergebnis des Weltgipfels die Idee der Schutzverantwortung zu eigen
machten und den Weg zu ihrer offiziellen Akzeptanz im Weltgipfel im Sep‐
tember 2005 ebneten. Es handelt sich um den Bericht der Hochrangigen Grup‐
pe für Bedrohungen, Herausforderungen und Wandel mit dem Titel Eine si‐
cherere Welt: Unsere gemeinsame Verantwortung13 und den Bericht des UN‐
Generalsekretärs mit dem Titel In größerer Freiheit: Auf dem Weg zu Entwick‐
lung, Sicherheit und Menschenrechten für alle14.
Unter den vielfältigen Vorschlägen obiger Texte hat das Ergebnis des Welt‐
gipfels die Schutzverantwortung minimalistisch auf die Verantwortung der
Staaten einge‐schränkt15, die Personen unter ihrer Jurisdiktion vor Völkermord,
Kriegsverbrechen, Verbrechen gegen die Menschlichkeit und ethnischer Säu‐
berung zu schützen. Einerseits handelt es sich um die Verantwortung jedes
Staates im Einzelnen, die für den Schutz seiner Bürger vor den oben genannten
verbrecherischen Handlungen, aber auch für die Vorbeugung gegen diese zu
sorgen hat16. Andererseits wird die Schutzverantwortung auch als gemein‐
schaftliche Verantwortung „der internationalen Gemeinschaft durch die VN“
angesehen17.
Bei der kollektiven Ebene empfiehlt die Verantwortung die Nutzung geeig‐
neter diplomatischer, humanitärer und anderer friedlicher Mittel (entspre‐
chend Kapitel VI und VIII UN‐Charta), damit „die internationale Gemeinschaft
durch die VN“ sich vereinigt um den Schutz der Bevölkerungen vor Genozid,
Kriegsverbrechen, ethnischer Säuberung und Verstößen gegen die Mensch‐
lichkeit kümmert. Falls sich das Wirken der ethnischen Behörden und die kol‐
lektiven friedlichen Mittel als nutzlos erweisen, sollen die Staats‐ und Regie‐
rungsoberhäupter ihre Bereitschaft äußern, rechtzeitig und entschieden eine
gemeinsame Handlung durch den SR durchzuführen, in Übereinstimmung
mit der UN‐Charta, unter Berücksichtigung des Kapitels VII18.
High‐level Panel on Threats, Challenges and Change, A More Secure World: Our Shared
Responsibility, Doc. A/59/565, 2 December 2004.
14 Report of the Secretary‐General, In Larger Freedom: Towards Development, Security and
Human Rights for All, Doc. A/59/2005, 21 March 2005.
15 Zum Vergleich der begrifflichen Elemente der Schutzverantwortung in den Texten des I‐
CISS, des Hochrangigen Gruppe und des UN‐Generalsekretärs sowie zur Entwicklung ihrer Be‐
deutung s. Stribis, I., „Die Regulierung des Gewalteinsatzes 60 Jahre nach der Charta der Or‐
ganisation der Vereinten Nationen. Entwicklung aus der Kontinuität“, Sechzig Jahre seit der
Gründung der Vereinten Nationen. Friede, Menschenrechte, lebensfähiges Wachstum und insti‐
tutionelle Reform [auf Griechisch], (H. Dipla, E. Doussis, Hrsg.), (Athen, 2007), pp. 56‐58.
16 World Summit Outcome (wie Anm. 4), Ziffer 138.
17 World Summit Outcome (wie Anm. 4), Ziffer 139.
18 Ebd.
13
130
Dementsprechend vermag der SR zur Umsetzung der Schutzverantwortung
auch Zwangsmaßnahmen gegen denjenigen zu ergreifen, der die Schutzver‐
antwortung gegenüber der Bevölkerung seiner Jurisdiktion nicht wahrnimmt.
Dies kann sogar zum militärischen Gewalteinsatz ausgeweitet werden, ent‐
sprechend der Voraussetzung der UN‐Charta (Feststellung einer Bedrohung
oder eines Bruchs des Weltfriedens oder einer Angriffshandlung). Im Ergebnis
des Weltgipfels ist demnach das einseitige oder vielseitige militärische Eingrei‐
fen zum Schutz einer Bevölkerungsgruppe nicht vorgesehen, wenn es sich
nicht auf eine SR‐Resolution stützt19, dessen ausschließliche Befugnis über den
militärischen Gewalteinsatz auch im Rahmen der Schutzverantwortung aner‐
kannt ist.
Im Ergebnis des Weltgipfels ist festgehalten, dass die Anwendung der Waf‐
fengewalt aufgrund der Schutzverantwortung nur mit der Bestätigung des SR
ermöglicht wird, der die Verbrechen, vor denen die Personen geschützt wer‐
den sollen, als Bedrohung oder Bruch des internationalen Friedens feststellt. Es
handelt sich um die ohnehin bestehende Möglichkeit des SR zu handeln, wenn
er irgendeine Bedrohung des Weltfriedens oder einen Bruch der internationa‐
len Sicherheit erkennt20. Auf diesen politischen Konsens hin bewegten sich
allmählich auch diejenigen, die zu Beginn begeisterte Verfechter der Möglich‐
keit waren, militärische Aktionen ohne entsprechende SR‐Resolution zur Um‐
setzung der Schutzverantwortung aufzunehmen21.
Die Schutzverantwortung lässt sich in drei Säulen unterteilen, welche der
UN‐Generalsekretär zu Beginn des Jahres 2009 systematisierte22. Es handelt
sich um die primäre Verantwortung der Staaten, ihre Bevölkerung vor Geno‐
zid, Kriegsverbrechen, ethnischer Säuberung und Verstöße gegen die Mensch‐
lichkeit zu schützen; den Beistand der internationalen Organisation für die be‐
dürftigen Staaten, auf dass diese ihre primäre Schutzverantwortung erfüllen
können; und, schließlich, die entschiedene und rechtzeitige Handlung der In‐
ternationalen Gesellschaft durch die VN im Falle eines Staates, der entweder
nicht vermag oder nicht gewillt ist, die primäre Schutzverantwortung, der er
Siehe High‐level Panel on Threats, Challenges and Change, A More Secure World: Our
Shared Responsibility (wie Anm. 14), Abs. 203, S. 57; Report of the Secretary‐General, In Larger
Freedom: Towards Development, Security and Human Rights for All, (wie Anm. 15), Abs. 135 in
fine, S. 35; auch, Andreas S. Kolb, The UN Security Council Members’s Responsibility to Protect,
Heidelberg, 2018, S. 8‐16.
20 Die rechtliche Festigung der Schutzverantwortung, würde, sollte sie in Kraft treten, lang‐
fristige Folgen haben, was die Grenzen der umfassenden speziellen Möglichkeit angeht, die der
SR unter dem bestehenden System genießt, s. im Detail Ioannis Stribis, „Die Regulierung der
Gewaltandwendung 60 Jahre nach der Charta der Organisation der Vereinten Nationen. Ent‐
wicklung aus der Kontinuität“ (wie Anm. 16), S. 62‐65.
21 Die ICISS ging in ihrem Bericht bezüglich der Umsetzung der Schutzverantwortung von
der Zuständigkeit des SR aus, The Responsibility to Protect (wie Anm. 11), Abs. 6.14, S. 54, aber,
als Folge einer eventuellen Trägheit des SR, akzeptierte sie zwischen den Zeilen den militäri‐
schen Gewalteinsatz zur Umsetzung der Schutzverantwortung auch ohne SR‐Resolution, ebd.
Abs. 6.28‐6.40, S. 57‐60.
22 Implementing the Responsibility to Protect, Report of the Secretary‐General, A/63/677, 12
Januar 2009.
19
131
gegenüber den Personen in seiner Jurisdiktion unterliegt, wahrzunehmen.
3. Die Normativitätsdichte der Schutzverantwortung
Die Schutzverantwortung mit obigem Inhalt wurde zu Beginn als im Ent‐
stehen begriffene Vorschrift charakterisiert23. Die rechtliche Qualität des Beg‐
riffs, andererseits, bildet seither einen anzuzweifelnden Gegenstand. Zunächst
liegt, technisch gesehen, im Ergebnis des Weltgipfels eine Erklärung der UN‐
Generalversammlung (GV) vor, die nicht verbindlich ist. An dieser Stelle muss
zwischen zwei Seiten der Angelegenheit unterschieden werden, den Elemen‐
ten der Schutzverantwortung, die nicht die Anwendung von Waffengewalt be‐
rührt, und der Möglichkeit, auf militärische Mittel auszuweichen, um die
Schutzverantwortung umzusetzen.
Was das zweite Element anbelangt, so wendet sich die Forschung dem Fall
des Gewalteinsatzes zur Umsetzung der Schutzverantwortung ohne entspre‐
chende SR‐ Resolution zu. In diesem Fall antwortet die internationale Praxis
negativ. Die intensive Meinungsverschiedenheit im Rahmen der VN im Fall
des Kosovo (1999), mit dem Ergebnis des Unvermögens, eine einschlägige SR‐
Resolution zu sichern, annulliert jeden Verdacht einer einheitlichen Rechts‐
überzeugung, die zur Schaffung einer internationalen Gewohnheit führen
könnte. Während der Debatten bei den VN wurden vier unterschiedliche Kon‐
zepte festgestellt. Die Mehrzahl der Staaten stellte sich gegen die Möglichkeit
einer militärischen Intervention in der BRJ.
Eine geringere Zahl von Staaten hielt unter den damaligen Umständen ei‐
nen bewaffneten Angriff auf die BRJ zum Zweck des Schutzes der albanischen
Bevölkerung vor einer ethnischen Säuberung für rechtmäßig. Eine kleinere
dritte Gruppe stimmte zwar der Unvereinbarkeit der militärischen Interventi‐
on mit dem Völkerrecht zu, akzeptierte aber diese Übertretung zur Vermei‐
dung von Massenverstößen gegen die Menschenrechte (Notstand). Eine vierte
Gruppe, schließlich, trachtete danach, die Gesprächsbedingungen aus dem Be‐
reich der völkerrechtlichen Legalität (rechtlicher Aspekt) in den der politischen
Legitimität zu verlagern24. Die offensichtliche Uneinigkeit hat nicht nur die
Verabschiedung einer Resolution durch den SR verhindert, sondern bewies
das Fehlen einer Vorschrift des positiven internationalen Rechts, das den Ge‐
walteinsatz zur Abwendung ethnischer Säuberung erlaubt. Diese Uneinigkeit
überschritt die Grenzen der VN, während ähnliche Spaltungen sich auch bei
internationalen Organisationen und Trägern von Zivilgesellschaften ereigne‐
ten. Sogar unter den NATO‐Mitgliedern gab es keine Einigung über die recht‐
Vgl. beispielsweise The Responsibility to Protect (wie Anm. 11), Abs. 2.24‐2.26, S. 15‐16;
Abs. 6.17, S. 55; High‐Level Panel on Threats, Challenges and Change, A More Secure World:
Our Shared Responsibility (wie Anm. 14), Abs. 202, 203, S. 57.
24 Siehe das kostbare Zeugnis des ständigen Vertreters der Niederlanden bei der NATO Peter
van Walsum während der Beratungen des SR über die Verabschiedung einer Resolution, die die
Intervention in der BRJ erlauben würde, Van Walsum, P., „The Security Council and the Use of
Force: Kosovo, East Timor, Irak“, The Security Council and the Use of Force. Theory and Reality
– A Need for Change?, (Niels Blokker & Nico Schrijver, Hrsg.), (Leiden: Nijhoff, 2005), p. 68.
23
132
liche Übereinstimmung mit dem internationalen Recht bezüglich der Interven‐
tion in der BRJ25.
Andererseits brachten einige das Argument hervor, die UN‐Charta sei ü‐
berholt und deshalb müssten neue Ausnahmen bezüglich des Verbots des Ge‐
walteinsatzes eingeführt werden. Wir werden uns hier nicht mit der Stichhal‐
tigkeit dieses Arguments auseinandersetzen, auch nicht mit den statischen und
dynamischen Folgen, die dessen Akzeptanz möglicherweise nach sich gezogen
hätte. Aber, möge hier noch kurz erörtert werden, auch wenn akzeptiert wor‐
den wäre, dass das in der UN‐Charta vorgesehene Verbot des Gewalteinsatzes
außer Gebrauch gekommen sei, dann wäre es äußerst schwierig, wenn nicht
unmöglich gewesen, ein analoges Argument auch gegen die Gültigkeit der
entsprechenden Vorschrift des Gewohnheitsrechts hervorzubringen26.
In diesem Fall hätte die syllogistische Betrachtung zwangsläufig zur „Rück‐
kehr“ zum ius ad bellum vor der Verabschiedung der UN‐Charta geführt, was
unter den heutigen Umständen praktisch unangebracht und politisch undenk‐
bar ist. Darüber hinaus kann eine außer Gebrauch gekommene Vorschrift un‐
ter bestimmten Umständen durchaus abgeschaffen werden, aber die Schaffung
einer neuen Regel erfordert positive Aktion, die ein neues Recht produziert
(„Übung“ und opinio iuris, internationales Abkommen oder allgemein aner‐
kannter Rechtsgrundsatz). Folglich ist das Argument der Überholtheit der UN‐
Charta von seinen Verfechtern eindeutig im Bereich des lege ferenda zu lokali‐
sieren.
Nach den Ereignissen von 1999 in der BRJ bestätigte das Ergebnis des Welt‐
gipfels festlich die Möglichkeit der Ausübung von Waffengewalt zur Umset‐
zung der Schutzverantwortung ausschließlich unter Anwendung der UN‐
Charta mit SR‐ Resolution (Aufnahme der Schutzverantwortung in das System
kollektiver Sicherheit der UN‐Charta). Das Verschweigen der Möglichkeit, bei
der der SR nicht entsprechend der Schutzverantwortung handelt, ist nicht auf
Fahrlässigkeit zurückzuführen, sondern auf die gewollte Entscheidung des
Weltgipfels, nichts weiter als die Handlung des SR zu erwähnen. Die Ausei‐
nandersetzungen, die zur Verabschiedung des Ergebnisses des Weltgipfels
führten, lassen keinen Zweifel an letzterer Auslegung27.
Diese Auslegung der Legalität der UN‐Charta betonte auch Georgien in ei‐
ner besonderen Stellungnahme bei der Organisation für Sicherheit und Zu‐
sammenarbeit in Europa (OSZE), in dem es, auf die internationale Praxis und
Doktrin verweisend, die Existenz einer Rechtsnorm abweist, die den Gewalt‐
einsatz zur Umsetzung der Schutzverantwortung ohne UN‐Resolution zu‐
lässt28. Die Anrufung u.a. auch der Schutzverantwortung durch Russland zu
Ebd.
IGH, Military and Paramilitary Activities in and against Nicaragua (wie Anm. 8), Abs. 187‐
192, S. 98‐102.
27 Letter of the Permanent Representative of the US to UN, 30 August 2005; Anne Peters,
„The Security Council’s Responsibility to Protect“, International Organizations Law Review,
2011, S. 8‐9.
28 Delegation of Georgia, Use of Force Issues Arising of the Russian Federation Invasion of
Georgia in August 2008, 7 August 2009, OSZE Dok. SEC.DEL/210/09/Add. 2, S. 9‐11.
25
26
133
seiner Rechtfertigung des militärischen Gewalteinsatzes gegen Georgien im
August 2008 zwang sogar die besonders begeisterten Prediger der Schutzver‐
antwortung, zum Konsens des Ergebnisses des Weltgipfels überzugehen (An‐
wendung des Kap. VII UN‐Charta durch den SR)29. Der Fall Libyens reiht sich
mit der Bevollmächtigung des SR zweifellos in diesen internationalen Konsens,
während man eine ähnliche Schlussfolgerung bezüglich des Verhaltens der
Mitgliedstaaten und Organe der VN bei der Syrien‐ und Jemenkrise ziehen
kann30.
Die Notwendigkeit der UN‐Resolution zum militärischen Gewalteinsatz im
Zusammenhang mit der Schutzverantwortung besteht auch für den Schutz ei‐
ner Bevölkerungsgruppe vor Genozid, für dessen Verhütung und Bestrafung
es eine konkrete, spezielle rechtliche Grundlage gibt (Völkermordkonvention,
1949). Auch in diesem Fall müssen die UN‐Mitgliedstaaten sich selbst und den
SR mobilisieren, um Personen vor drohendem und in höherem Maße vor prak‐
tiziertem Völkermord zu schützen.
Es kann kein Zweifel darüber bestehen, dass der praktizierte oder ange‐
drohte Völkermord eine Bedrohung des Weltfriedens und der internationalen
Sicherheit darstellt und dass der SR alles Notwendige tun muss, um einem
Völkermord zuvorzukommen, ihn abzuwenden oder zu unterdrücken. In die‐
sem Fall dient die Anrufung der Schutzverantwortung nicht zur besonderen
Legitimierung der Handlung des SR, im Vergleich zur Legitimierung, die er
ohnehin durch die Artikel 24 und 39 UN‐Charta innehat.
An dieser Stelle muss betont werden, dass, obwohl sich die Schutzverant‐
wortung auf ethische Prinzipien zu stützen scheint (Solidarität, Schutz der
Menschenrechte usw.), so führt sie doch einen ethischen Relativismus ein be‐
züglich des Einsatzes von Waffengewalt (über die juristischen Einschränkun‐
gen hinaus, die vom positiven Recht für ihre gesetzeskonforme Ausübung ein‐
geräumt werden). Selbstverständlich heiligt der Zweck nicht die Mittel; den‐
noch sind einige Mittel zur Erlangung der Ziele, denen die Schutzverantwor‐
tung dienen möchte, widerrechtlich, welche Eigenschaft sie nicht durch eine
einfache Anrufung erwünschter oder gar zulässiger Ziele abwerfen können.
Besonders die anfänglichen Konzepte der Schutzverantwortung (vor dem
Ergebnis des Weltgipfels 2005), die – vor allem aus politischen Gründen – wei‐
terhin lebendig sind, wurden von einer Rückkehr zur alten Ideologie des ge‐
rechten Krieges beseelt; jedoch in einer verkehrten Form. Während nämlich die
Lehre des gerechten Krieges zur Einschränkung der Zuflucht zur Waffenge‐
walt entwickelt wurde, als der Krieg noch ein legales Mittel zur Lösung inter‐
nationaler Spannungen war, haben wir in der Schutzverantwortung eine Um‐
kehrung der Situation, wo der gerechte Krieg ein Argument zur Umgehung
des mittlerweile mit großer Anstrengung errungenen Verbots militärischen
Gewalteinsatzes in den internationalen Beziehungen darstellt.
Evans, G., „Russia and the ‘Responsibility to Protect’“, Los Angeles Times, 31 August 2008.
Diese Krise hält noch an, während vorliegende Studie geschrieben wird. Ein definitives Ur‐
teil kann für diesen Fall noch nicht gefällt werden. Qu Xing, S., „The UN Charter, the Responsi‐
bility to Protect, and the Syria Issue“, China International Studies, 33 (2012), pp. 14‐35.
29
30
134
Für die übrigen Bestandteile der Schutzverantwortung (Verantwortung der
Staaten, die Bevölkerungsgruppen vor Genozid, Kriegsverbrechen, ethnischer
Säuberung und Verstößen gegen die Menschlichkeit zu schützen; Beistand der
internationalen Organisation für die bedürftigen Staaten, auf dass diese ihre
primäre Schutzverantwortung erfüllen können; und, schließlich, die entschie‐
dene und rechtzeitige Handlung der Internationalen Gesellschaft durch die
VN im Falle eines Staates, der entweder nicht vermag oder nicht gewillt ist, die
primäre Schutzverantwortung, der er gegenüber den Personen in seiner Juris‐
diktion unterliegt, wahrzunehmen; Nutzung geeigneter diplomatischer, hu‐
manitärer und anderer friedlicher Mittel zum Zweck des Schutzes von Perso‐
nen vor Völkermord, Kriegsverbrechen, ethnischer Säuberung und Verbrechen
gegen die Menschlichkeit durch „die internationale Gemeinschaft durch die
VN“) muss die Existenz jener Elemente ermittelt werden, welche die Schaffung
einer Regel des Völkerrechts erlaubten, die ihrerseits die Schutzverantwortung
aus dem Bereich der politischen Deklaration in den Rahmen der internationa‐
len Rechtmäßigkeit einbettet. Die internationale Praxis war und ist in Bezug
auf diese Bestandteile der Schutzverantwortung nicht stabil31. Ein weiteres
Problem verursacht die Feststellung, dass Staaten und andere Akteure der in‐
ternationalen Gesellschaft bei der Ablehnung der Schutzverantwortung nicht
immer zwischen den einzelnen Bestandteilen zu unterscheiden scheinen.
Problematisch in dieser Hinsicht ist auch die Beobachtung, dass in Texten
des SR jede Erwähnung der Schutzverantwortung vermieden wird, ob es sich
um Resolutionen zur Durchführung von Zwangsmaßnahmen handelt oder
nicht.
Nach der Verabschiedung des Ergebnisses des Weltgipfels 2005 bezog sich
der SR darauf, konkret auf die Ziffern 138 und 139, im operativen Teil nur ei‐
ner Resolution, nämlich der Resolution 1674 (2006) über den Schutz von Zivil‐
personen (Abs. 4). Eine Erwähnung der „Verantwortung der Regierung Su‐
dans, Zivilpersonen, die von physischer Gewalt bedroht sind, zu schützen“,
befindet sich in der Resolution 1706 (Abs. 12[a]) desselben Jahres. Nach 2006
wird jede Erwähnung des Ergebnisses des Weltgipfels aus den SR ‐ Resolutio‐
nen gestrichen32, während die zahlreichen Erwähnungen der Schutzverantwor‐
tung auf die Zivilbevölkerung fokussieren und nunmehr lediglich in der Prä‐
ambel der Resolutionen 1970 (Libyen), 1973 (Libyen), 1975 (Elfenbeinküste)
und 2014 (Jemen) aus dem Jahr 2011 berücksichtigt sind.
Besonders charakteristisch ist, dass in der Resolution 1894 zum Schutz von
Zivilpersonen, die 2009 verabschiedet wurde, drei Jahre nach der Resolution
1674 zum selben Thema (Schutz von Zivilpersonen), die Erwähnung der
Schutzverantwortung von den operativen Bestimmungen zur Präambel der
Resolution verlagert wurde. Die Erwähnung der Schutzverantwortung kehrt
High‐Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared
Responsibility (wie Anm. 14), Abs. 202, 203, S. 57.
32 Die Erwähnung der Schutzverantwortung in den Ziffern 138 und 139 im Ergebnis des
Weltgipfels begegnet auch in der Einleitung der wahrhaft sehr kurzen und rein didaktischen Re‐
solution der GV 63/308 (14. September 2009).
31
135
dann in der Resolution 2085 (2012) über die Situation in Mali zum operativen
Teil zurück. Diese Resolution genehmigt die Internationale Unterstützungs‐
mission in Mali unter afrikanischer Führung (African‐led International Sup‐
port Mission in Mali, AFISMA) und verspricht, „die malischen Behörden bei
der Wahrnehmung ihrer Hauptverantwortung für den Schutz der Bevölke‐
rung zu unterstützen“ (Absatz 9[d]).
Die Untersuchung der obigen SR‐Resolutionen führt zur Feststellung, dass
zwar konsequent die Erwähnung der Schutzverantwortung, nicht aber die
Verantwortung der Staaten gemieden wird, die Zivilpersonen unter ihrer Ju‐
risdiktion zu schützen (erste Säule). Dieser Verantwortung schreiben die obi‐
gen Resolutionen besondere Bedeutung zu. So nimmt in der Resolution 1973
der Schutz der Zivilbevölkerung, der auch im Titel steht, einen speziellen Platz
ein. Diese Beobachtung verlangt nach einer vorsichtigen Studie, zur Klärung,
ob sich die gegen die Schutzverantwortung hervorgebrachten Einwände spe‐
ziell auf den Gewalteinsatz beziehen, so dass sie nicht die übrigen Säulen der
Schutzverantwortung beeinflussen.
In diesem Zusammenhang könnte man behaupten, dass die an die interna‐
tionale Unterstützungsmission in Mali gerichtete Aufforderung, die Behörden
dieses Landes bei der Wahrnehmung ihrer Schutzverantwortung zu unterstüt‐
zen, eine Bestätigung in Form einer rechtlich bindenden SR‐Resolution gemäß
der dritten und vierten Säule der Schutzverantwortung erhält, obwohl die Ak‐
tion eher in die Kategorie jener UN‐Friedensmissionen gehört, die zum Schutz
der Zivilbevölkerung das Mandat auf Anwendung von Waffengewalt besitzen
(jedenfalls unter Zustimmung des Gaststaates), als in die Kategorie der An‐
wendung von Waffengewalt gegen einen Staat ohne dessen Einverständnis,
weil er seine Hauptschutzverantwortung versäumt.
4. Die SR‐Resolution 1973 (2011)
Die SR‐Resolution 1973 bevollmächtigt die Anwendung von Waffengewalt
gegen einen uneinsichtigen Staat zum Zweck des Schutzes von Zivilpersonen.
Sie wurde mit zehn positiven Stimmen und fünf Enthaltungen verabschiedet33.
Der Plan, der zur Verabschiedung führte, war von Frankreich, dem Libanon
und dem Vereinigten Königreich gemeinsam vorgeschlagen worden. Die Be‐
vollmächtigung zum militärischen Gewalteinsatz ist in der Resolution in drei
Fällen vorgesehen, von denen sich der erste auf den Schutz von Zivilpersonen
bezieht (Abs. 4), während die beiden anderen mit der Auferlegung einer Flug‐
verbotszone (Abs. 8) und dem Waffenembargo (Abs. 13) im Zusammenhang
stehen.
Die Vorschrift über den Schutz von Zivilpersonen sieht Folgendes vor:
„[Der SR] ermächtigt die Mitgliedstaaten, die eine Notifizierung an den General‐
sekretär gerichtet haben und die einzelstaatlich oder über regionale Organisationen
oder Abmachungen und in Zusammenarbeit mit dem Generalsekretär tätig werden,
Positive Stimmen: Bosnien‐Herzegowina, Frankreich, Gabun, Kolumbien, Libanon, Nige‐
ria, Portugal, Südafrika, USA, Vereinigtes Königreich. Enthaltungen: Brasilien, China, Deutsch‐
land, Indien, Russland.
33
136
alle notwendigen Maßnahmen zu ergreifen, …, um von Angriffen bedrohte Zivilper‐
sonen und von der Zivilbevölkerung bewohnte Gebiete in der Libysch‐Arabischen
Dschamahirija, einschließlich Bengasis, zu schützen“.
Es handelt sich um die erste SR‐Resolution, die allgemein zur Anwendung
von Waffengewalt zum Schutz von Zivilpersonen ermächtigt34. Allerdings
herrscht Uneinigkeit über die Bedeutung dieser Resolution in Bezug auf den
Status der Schutzverantwortung, wobei sich die Ansichten teilen zwischen der
durch die Resolution bewirkten normativen Festigung der Schutzverantwor‐
tung und ihrem eingeschränkten bis kaum existenten Einfluss auf deren Nor‐
mativität.
Die Einschätzung der obigen Ansichten bedarf einer Interpretation der Re‐
solution. In diesem Kontext sind die Formulierung der Resolution und die A‐
nalyse der Aussagen der Vertreter der SR‐Mitglieder bei der Verabschiedung
der Resolution im Rat sowie der Vergleich mit anderen verwandten Resolutio‐
nen des Rates entscheidend35.
Charakteristisch ist zunächst, dass die Resolution 1973, das Beispiel der vo‐
rangehenden Resolution 1970 befolgend, den Begriff „Schutzverantwortung“
nicht erwähnt. Die einschlägigen Angaben, die, wie bereits gesagt, sich auf die
Präambel beschränken, lauten folgendermaßen: „unter Hinweis auf …“ (1970),
„erneut erklärend“ (1973), „dass die libyschen Behörden dafür verantwortlich
sind, die libysche Bevölkerung zu schützen“. Das Fehlen des Hinweises auf die
Schutzverantwortung in ihrer internationalen Dimension (als Verantwortung
„der internationalen Gemeinschaft durch die VN“) bezeugt, dass dieser Begriff
weiterhin als nicht ausreichend zur Legitimierung eines militärischen Gewalt‐
einsatzes erachtet wird. Es ist bei den VN und im Allgemeinen kein Geheim‐
nis, dass die Auslassung des Begriffs „Schutzverantwortung“ (auch in der Prä‐
ambel von 1973) eine klare Bedingung für die Enthaltung Chinas und Russ‐
lands bedeutete36. Im Gegensatz dazu verlieh der SR die Vollmacht zur An‐
wendung von Waffengewalt mit der sonst üblichen Rechtfertigung aufgrund
der Feststellung, „dass die Situation in der Libysch‐Arabischen Dschamahirija
auch weiterhin eine Bedrohung des Weltfriedens und der internationalen Si‐
cherheit darstellt“ (Präambel).
Die obige Feststellung, die aus der Resolution 1973 extrahiert wurde (wie
auch aus der vorangehenden 1970), wird auch von den Aussagen der SR‐
Mitglieder vor und nach ihrer Verabschiedung bestätigt. Die einzige Vertre‐
tung, die ihre positive Stimme mit einem Gedanken begründete, der indirekt
Früher unterlag der Gewalteinsatz zu humanitären Zwecken entweder funktionaler (SR‐
Resolution 770 [1992], Bosnien‐Herzegowina, Schutz humanitärer Hilfsgüter) oder temporaler
(SR‐Resolution 929 [1994], Ruanda, zweimonatige Durchführung) Einschränkung.
35 Siehe die richt ungsweisen den Direktiven des IGH zur Deutung der SR‐Resolutionen,
IGH, Accordance with international law of the unilateral declaration of independence in respect
of Kosovo, Advisory Opinion, 22 July 2010, I.C.J. Reports 2010, Abs. 94, S. 442.
36 Welsh, J., „Civilian Protection in Libya: Putting Coercion and Controversy Back into RtoP“,
Ethics and International Affairs (2011), http://www.carnegiecouncil.org/publications/journal/
25_3/index.html, Menegazzi, S., „China Reinterprets the Liberal Peace,, Istituto Affari Internazi‐
onali Working Paper 12, 2012, S. 9‐11.
34
137
auf die Formulierung im Ergebnis des Weltgipfels verweist, war Kolumbien37.
Frankreich, vertreten durch den Außenminister, bezog sich ebenfalls auf die
Schutzverantwortung, jedoch lediglich im Sinn der ersten Säule („Verantwor‐
tung der libyschen Behörden, das libysche Volk zu schützen“)38, wodurch es
sich deutlich von der Äußerung während der Diskussion nach der einstimmi‐
gen Verabschiedung der Resolution 1970, drei Wochen vorher, distanzierte.
Damals erinnerte Frankreich an die „Verantwortung eines jeden Staates,
seine eigene Bevölkerung zu schützen und die der internationalen Gesell‐
schaft, einzugreifen, wenn Staaten bei ihrer Pflicht scheitern“39. Diese Kehrt‐
wende ist nicht ohne Grund für den zu untersuchenden Gegenstand, so wie
auch die Tatsache, dass kein anderer Vertreter unter denen, die gesprochen
haben, den Begriff „Schutzverantwortung“ verwendete (entweder stimmten
sie dafür oder sie enthielten sich). Im Gegensatz dazu war „der Schutz von Zi‐
vilpersonen“ ausnahmslos im Munde aller Vertreter40, wodurch sie während
der Verabschiedung der Resolution 1970 die Aussagen der SR‐Mitglieder bes‐
tätigten41.
Aus dem oben Gesagten geht hervor, dass die Hypothese, die Resolution
1973 bilde eine Bestätigung für die rechtliche Bindung der Schutzverantwor‐
tung, wird nicht bestätigt, weder durch ihre Formulierung noch durch die
Wortmeldungen der SR‐Mitglieder. Das Fehlen einer entsprechenden Regel,
wenigstens für die zweite und dritte Säule der Schutzverantwortung, wird
auch gestützt von der bis jetzt anhaltenden Entwicklung der Syrienkrise, wo
sich die Diskussion zum Einsatz von Waffengewalt um die Nutzung verbote‐
ner chemischer Waffen dreht, während die Erwähnung der Schutzverantwor‐
tung in den internationalen Verhandlungen nur eine untergeordnete Rolle
spielt42.
Unter den Ursachen dieser Unterordnung der Schutzverantwortung, nach‐
dem sie auf politischer Ebene beim Weltgipfel 2005 verkündet wurde, müssen
zwei Hauptgründe genannt werden.
Einerseits darf nicht die Tatsache vernachlässigt werden, dass wenn die
Schutzverantwortung rechtlich gefestigt werden würde, das Ausbleiben der
Handlung, bei einem Einzelnen oder einer Gruppe, rechtliche Folgen nach sich
zöge: Die Mitglieder der internationalen Gemeinschaft würden völkerrechtli‐
Kolumbien begründete ihre positive Stimme mit dem Unvermögen der Regierung Libyens,
die „internationale Verantwortung zum Schutz seiner Bevölkerung“ wahrzunehmen; damit,
dass es sich „um eine Situation handelt, die deutlich eine Bedrohung des Weltfriedens und der
internationalen Sicherheit darstellt“, und es „überzeugt ist, dass im Fall Libyens alle Bedingun‐
gen für den Rat vorhanden sind, um gemäß Kapitel VII zu handeln“, S/PV.6498, 17 March 2011,
S. 7.
38 S/PV.6498, 17 March 2011, S. 2.
39 S/PV.6491, 26 February 2011, S. 5.
40 S/PV.6498, 17 March 2011, passim.
41 S/PV.6491, 26 February 2011, passim.
42 Stellvertretend s. Blockmans, S., „Syria and the Red Lines of International Law“, Centre for
European Policy Studies, Commentary, 2013, S. 1‐4, Xing, Q., „The UN Charter, the Responsibil‐
ity to Protect, and the Syria Issue“, China International Studies 33 (2012): S. 14‐35.
37
138
che Haftung tragen43. Das ist eine Konsequenz, die die meisten Staaten freilich
nicht akzeptieren möchten, da dies eine entscheidende Einschränkung ihres
Ermessensspielraumes bedeutete. Die meisten Staaten berufen sich auf die
Schutzverantwortung mehr oder weniger zur Rechtfertigung für politische
Optionen. Sie wären nicht bereit, diese Verantwortung als vollständige
Rechtsnorm anzuerkennen, deren Übertretung (durch Unterlassung) den Me‐
chanismus der internationalen Verantwortung auslösen würde, freilich mit ei‐
ner unbestimmbaren Zahl an Rechtsinhabern44.
In der Praxis, andererseits, erlaubt der bestehende Status dem SR, eine mili‐
tärische Intervention aus irgendeinem Grund zu gestatten (unter Einschluss
der Schutzverantwortung). Die Ermessensfreiheit des SR in Bezug auf die Cha‐
rakterisierung einer Situation als Bedrohung des Weltfriedens und der interna‐
tionalen Sicherheit und die Auswahl der angemessenen Maßnahmen zur Aus‐
einandersetzung mit dem Konflikt ist eine Tatsache45.
Folglich bedarf die Entscheidung zum militärischen Gewalteinsatz zunächst
politischen Willens und anschließend rechtliche Rechtfertigung. Gerade das
beinhaltet das Ergebnis des Weltgipfels mit dem Hinweis auf die Schutzver‐
antwortung, der „die internationale Gemeinschaft durch die VN“ unterliegt.
Der Text bietet in politischem Sinn eine Legitimität einer Initiative zur militäri‐
schen Intervention, die dennoch aus rechtlicher Sicht einer SR‐Resolution be‐
darf. Die Praxis dieses Organs allerdings, aber auch der internationalen Orga‐
nisation nach 2006, zeigt, dass die Schutzverantwortung bis jetzt noch keinen
einzigen funktionalen politischen Rahmen zum Treffen von Entscheidungen
durch den SR im Fall von humanitären Krisen geboten hat.
5. Fazit: Schutzverantwortung und Schutz von Zivilpersonen. Parallele Le‐
ben?
Aus dem oben Gesagten geht hervor, dass die SR‐Resolution 1973 (2011)
nicht zur Festigung einer internationalen Regel für die Schutzverantwortung
beigetragen hat. Die unzähligen Erwähnungen der Resolution 1973 zum
Schutz der Zivilbevölkerung lassen keinen Zweifel daran, dass die Ermächti‐
gung zum Gewalteinsatz in Abs. 4 dieser Resolution sich lediglich auf den
Schutz von Zivilpersonen bezieht46.
Dieses Element steht im Einklang mit der obigen Feststellung, dass nach
Im Detail zu diesem Thema s. Stribis, I., „Die Regulierung des Gewalteinsatzes 60 Jahre
nach der Charta der Organisation der Vereinten Nationen. Entwicklung aus der Kontinuität [auf
Griechisch]“ (wie Anm. 16), S. 64‐65.
44 Die Frage nach den Rechtsinhabern der Schutzverantwortung ist ebenso brisant wie auch
jede andere Facette dieses Konzepts.
45 Beim dezentralisierten internationalen System ist die Kontrolle diffus, so dass im Fall einer
deutlichen Übertretung der UN‐Charta durch den SR ein UN‐Mitglied die Verletzung anzeigen
und entscheiden kann, welche politische und rechtliche Risiken diese Entscheidung auch immer
implizieren mag, sich an der Umsetzung der vorliegenden Resolution nicht zu beteiligen.
46 Siehe die tiefgreifende Analyse von Berman, D., Michaelsen, C., „Intervention in Libya:
Another Nail in the Coffin for the Responsibility‐to‐Protect?“ (wie Anm. 3), S. 349‐358.
43
139
2006 die wörtlichen Bezüge auf die Schutzverantwortung aus den SR‐
Resolutionen (operativen Bestimmungen und auch Präambel) verschwinden
und durch Erwähnungen des Schutzes der Zivilbevölkerung ersetzt werden;
so in den SR‐Resolutionen hinsichtlich Syrien (2139 [2014], Abs. 5, 9; 2165
[2014], Präambel; 2254 [2015], Abs. 13; 2258 [2015], Präambel; 2328 [2016], Abs.
5; 2332 [2016], Präambel; 2393 [2017], Präambel) ebenso wie in den den Jemen
betreffenden Resolutionen (2216 [2015], Abs. 9; 2266 [2016], Präambel).
Es ist bekannt, dass das humanitäre Völkerrecht den Schutz der Zivilbevöl‐
kerung als Pflicht der Kriegsparteien vorsieht. Im Licht der obigen Feststellun‐
gen können wir uns dennoch bezüglich der Möglichkeit fragen, die Verant‐
wortung zum Schutz der Zivilbevölkerung über die im Konflikt stehenden
Parteien hinaus auszuweiten, so dass es zur Verantwortung der internationa‐
len Gemeinschaft wird (inbesondere des SR)47.
In dem Sinn lenkte der SR mit der Resolution 1674 vom 28. April 2006 den
Fokus seines Interesses auf den Schutz von Zivilpersonen in bewaffneten Kon‐
flikten48. Mit dieser Resolution beansprucht der SR nicht eine Führungsrolle
beim Schutz der Zivilbevölkerung, was unter die Verantwortung der Konflikt‐
parteien fällt, sondern bestätigt seine starke Missbilligung gezielter Angriffe
auf sowie jeglicher Gewalthandlungen gegen Zivilpersonen (Abs. 3, 4). Mit der
Resolution 1674 bekundet der SR die Absicht, den Schutz der Zivilbevölke‐
rung, wo es geeignet erscheint, zu den Pflichten der Friedensoperationen der
VN hinzuzufügen und sogar über alle anderen Pflichten zu stellen (Abs. 16)49.
Ende 2009 kehrte der SR zum Thema des Schutzes der Zivilbevölkerung mit
der Resolution 1894 zurück. Darin wurde wiederholt, dass der SR und die UN‐
Mitglieder weiterhin den Schutz der Zivilbevölkerung unterstützen müssen,
parallel zur Hauptverantwortung der an einem bewaffneten Konflikt beteilig‐
ten Parteien (Präambel), und erneut seine Bereitschaft bestätigt, u.a. „geeignete
Maßnahmen zu erwägen, die dem Rat nach der Charta der VN zur Verfügung
stehen“, „auf Situationen zu reagieren, in denen vorsätzliche Angriffe auf Zi‐
vilpersonen verübt werden oder die humanitären Hilfsmaßnahmen zugunsten
von Zivilpersonen vorsätzlich verhindert werden“ (Abs. 4). Zu den allgemei‐
nen Resolutionen sind auch diejenigen zu speziellem Zweck verabschiedeten
hinzuzufügen, so etwa zum Schutz gefährdeter Gruppen, wie Kinder und
Frauen, bei bewaffneten Konflikten (z.B. Resolution 1612 [2005], 1882 [2009],
1888 [2009]).
Eventuelle Verantwortung auch vereinzelter Staaten würde zunächst auf politische Ein‐
wände und ebenso schwere rechtliche Hindernisse stoßen, wie auch bei der Schutzverantwor‐
tung.
48 Siehe auch die SR‐Resolution 1265 (1999), mit der der Rat verkündete, dass in bestimmten
Fällen schwere Verstöße gegen das humanitäre Völkerrecht und die Menschenrechte (insbeson‐
dere Angriffe auf Zivilpersonen) eine Bedrohung für den Weltfrieden und die internationale Si‐
cherheit bedeuten können.
49 Sieben Friedensorganisationen wurden von dem SR mit dem Schutz der Zivilbevölkerung
beauftragt: MINUAD (Darfur), MINURCAT (Zentralafrikanische Republik und Tschad), MO‐
NUSCO (Demokratische Republik Kongo), ONUCI (Elfenbeinküste), UNIFIL (Libanon), UNMIL
(Liberia), UNMISS (Südsudan).
47
140
Die Verbindung des Schutzes der Zivilbevölkerung mit der Schutzverant‐
wortung durch den SR ergibt sich entweder direkt (Resolution 1674 [2006],
Abs. 4) oder indirekt (Resolution 1894 [2009], Präambel)50. Das Verhältnis bei‐
der Begriffe allerdings ist weder wie die Art zur Gattung, noch wie der Teil
zum Ganzen. Die Schutzverantwortung fokussiert auf die Abwendung der ab‐
scheulichsten Verbrechen (Völkermord, ethnische Säuberung und Verbrechen
gegen die Menschlichkeit) während oder außerhalb von bewaffneten Konflik‐
ten51.
Der Schutz von Zivilpersonen setzt einen bewaffneten Konflikt voraus und
hat einen breiteren Inhalt, da er anstrebt, allgemein die Gefahren, die die Zivil‐
bevölkerung bedrohen und die zunächst die natürliche Unversehrtheit der Zi‐
vilbevölkerung betreffen (Tod, Folter, sexuelle Gewalt), beizulegen. Dieser
Schutz berücksichtigt allerdings auch die Gewährleistung humanitärer Hilfs‐
güter, die Verhütung der Kinderrekrutierung und der erzwungenen Umsied‐
lung von Zivilpersonen sowie die Garantie der Sicherheit der Flüchtlingsla‐
ger52.
Aus diesem Grund dürften in einer größeren Zahl der Fälle Voraussetzun‐
gen zum Schutz von Zivilpersonen als zur Schutzverantwortung vorliegen.
Außerdem sieht der Schutz von Zivilpersonen nicht die Verteilung der Ver‐
antwortung vor, die für die Schutzverantwortung obligatorisch ist, deren dritte
Säule (Handlung der Internationalen Gesellschaft durch die VN) aktiviert
wird, wenn die erste versagt (Verantwortung eines Staates).
Im Fall einer Regierung, die keine bemerkenswerte Krise durchmacht, kann
der Begriff des Schutzes von Zivilpersonen ein flexibleres Instrument zur
Schaffung eines allgemein anerkannten Konsenses im SR sein, während die
Schutzverantwortung in solchen Fällen zu Polarisierung und Ausweglosigkeit
führen könnte. Aus diesem Grund dürfte die weitere Entwicklung des Begriffs
des Schutzes von Zivilpersonen als Verantwortung des SR und in fernerer Zu‐
kunft der internationalen Gemeinschaft durch die VN günstigere Aussichten
zu normativer Akzeptanz haben.
Siehe auch UN Office for the Coordination of the Humanitarian Affairs, Aide Memoire for
the Consideration of Issues Pertaining to the Protection of Civilians in Armed Conflict, OCHA
Policy and Studies Series, vol. I, N° 4, 2011, 4th ed., http://reliefweb.int/sites/reliefweb.int/files/
resources/Full_Report_1008.pdf; sowie Hugh Breakey e.a., Enhancing Protection Capacity: Pol‐
icy Guide to the Responsibility to Protect and the Protection of Civilians in Armed Conflicts, In‐
stitute of Ethics, Governance and Law, 2012.
51 World Summit Outcome (wie Anm. 4), Ziffer 138‐139.
52 SR‐Resolution 1674 (2006), vor allem Abs. 5.
50
The Relationship between the UN Security Council,
the International Criminal Court and Third States:
Some Thoughts on the Al‐Bashir Case
Vassilis Pergantis
Assistant Professor, Faculty of Law, Aristotle University of Thessaloniki
1. Introduction
In the early hours of the afternoon, on 15 June 2015, the judges of the North
Gauteng High Court of South Africa, hearing the case Southern Africa Litiga‐
tion Center v. Minister of Justice and Constitutional Development and Others1,
asked the counsel for the respondent to confirm whether Sudan’s President Al‐
Bashir – the target of the proceedings – was still in South Africa for the summit
of the African Union (hereinafter AU).
In a rather testy exchange, the counsel for the Ministry of Justice was unable
to confirm whether Al‐Bashir had left the country according to media reports
or was still participating in the AU summit, thus incurring the ridicule of the
public gallery. Still, when the bench issued its judgment, finding the South Af‐
rican government in breach of its obligations to arrest President Al‐Bashir and
detain him and ordering it to do so, the rumors were confirmed to the bench’s
exasperation: the Sudanese President had already left the country2.
This embarrassing moment offers only a glimpse of the Al‐Bashir saga, in
which the International Criminal Court (hereinafter ICC) has been embroiled
from the moment it issued arrest warrants against the Sudanese President in
2009 for war crimes, crimes against humanity and, later on, genocide3. During
the last decade, President Al‐Bashir has visited various States parties and not‐
parties to the ICC Statute4, thus defying the arrest warrants, while the Court’s
orders for his arrest and surrender have not been complied resulting to a series
of decisions by the ICC against States for failure to cooperate with the Court5.
Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development
and Others, North Gauteng High Court of South Africa Decision (June 24, 2015), reproduced in
ILM, vol. 54 (2015): pp. 930‐944.
2 The incident has been vividly recounted by Manuel Ventura, “Escape from Johannesburg?
Sudanese President Al‐Bashir Visits South Africa, and the Implicit Removal of Head of State
Immunity by the UN Security Council in light of Al‐Jedda,” JICJ 13 (2015): pp. 995‐1025, 1003‐
1006.
3 Prosecutor v. Omar Hassan Ahmad Al‐Bashir, Case No. ICC‐02/05‐01/09 [hereinafter: Al‐
Bashir], Warrant of Arrest, ICC‐02/05‐01/09‐1, Pre‐Trial Chamber I (March 4, 2009) followed by a
Second Warrant of Arrest, ICC‐02/05‐01/09‐95, Pre‐Trial Chamber I (July 12, 2010).
4 The Sudanese President has visited around 20 States parties of the ICC Statute after the is‐
suance of the Arrest Warrant and until today. See www.bashirwatch.org.
5 See, for instance, Al‐Bashir, Corrigendum to the Decision Pursuant to Article 87(7) of the
Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Re‐
quests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al
‐Bashir, ICC‐02/05‐01/09‐139‐Corr, Pre‐Trial Chamber I (December 13, 2011) [hereinafter Malawi
1
142
Moreover, the Court’s calls to the Assembly of States Parties to the ICC
Statute and the Security Council of the United Nations (hereinafter UNSC or
SC) to take up these cases of non‐cooperation have been largely met with si‐
lence and indifference.6 In addition to this, the ICC has been obliged to limit its
activities in the Darfur investigation because of financial difficulties7.
The above challenges highlight the complex relationship forged between the
ICC and the UNSC. As is well known, the situation in Darfur was referred to
the ICC by the UNSC in 20058 on the basis of Article 13(b) of the ICC Statute9.
Since Sudan was not a State party to the ICC Statute, the resolution imposed
on Sudan and the other parties to the conflict the obligation to fully cooperate
with the Court.
In contrast, other States not‐parties to the ICC Statute were only urged to
decision]; Al‐Bashir, Decision Pursuant to Article 87(7) of the Rome Statute on the Refusal of the
Republic of Chad to Comply with the Cooperation Requests Issued by the Court with Respect to
the Arrest and Surrender of Omar Hassan Ahmad Al‐Bashir, ICC‐02/05‐01/09‐140‐tENG, Pre‐
Trial Chamber I (December 13, 2011) [hereinafter Chad decision]; Al‐Bashir, Decision on the Co‐
operation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Sur‐
render to the Court, ICC‐02/05‐01/09‐195, Pre‐Trial Chamber II (April 9, 2014) [hereinafter Congo
decision]; Al‐Bashir, Decision Following the Prosecutor’s Request for an Order Further Clarify‐
ing that the Republic of South Africa is Under the Obligation to Immediately Arrest and Surren‐
der Omar Al Bashir, ICC‐02/05‐01/09/242, Pre‐Trial Chamber II (June 13, 2015); Al‐Bashir, Deci‐
sion on the Non‐compliance by the Republic of Djibouti with the Request to Arrest and Surren‐
der Omar Al‐Bashir to the Court and Referring the Matter to the United Nations Security Coun‐
cil and the Assembly of the State Parties to the Rome Statute, ICC‐02/05‐01/09‐266, Pre‐Trial
Chamber II (July 11, 2016) [hereinafter Djibouti decision]; Al‐Bashir, Decision on the Non‐
compliance by the Republic of Uganda with the Request to Arrest and Surrender Omar Al‐
Bashir to the Court and Referring the Matter to the United Nations Security Council and the As‐
sembly of State Parties to the Rome Statute, ICC‐02/05‐01/09‐267, Pre‐Trial Chamber II (July 11,
2016) [hereinafter Uganda decision]; Al‐Bashir, Decision Under Article 87(7) of the Rome Statute
on the Non‐compliance by South Africa with the Request by the Court for the Arrest and Sur‐
render of Omar Al‐Bashir, ICC‐02/05‐01/09‐302, Pre‐Trial Chamber II (July 6, 2017) [hereinafter
South Africa decision]; Al‐Bashir, Decision Under Article 87(7) of the Rome Statute on the Non‐
compliance by Jordan with the Request by the Court for the Arrest and Surrender of Omar Al‐
Bashir, ICC‐02/05‐01/09‐309, Pre‐Trial Chamber II (Dec. 11, 2017) [hereinafter Jordan decision].
6 See, indicatively, Al‐Bashir, Decision informing the United Nations Security Council and
the Assembly of the States Parties to the Rome Statute about Omar Al‐Bashir’s recent visit to
Djibouti, ICC‐02/05‐01/09‐129, Pre‐Trial Chamber I (May 13, 2011), and the critique for the
UNSC’s inaction in Eighteenth Report of the Prosecutor of the International Criminal Court to
the UN Security Council Pursuant to Resolution 1593, UN Security Council (March 31, 2005),
(December 11, 2013), §55: “The Council’s silence and inaction contributes to the Sudan’s contin‐
ued determination to ignore the Council”.
7 Ruiz‐Verdusco, D., “The Relationship between the ICC and the United Nations Security
Council,” in Carsten Stahn (ed.) The Law and Practice of the International Criminal Court. (Ox‐
ford: Oxford University Press, 2015), pp. 30‐64, 38‐42.
8 Resolution 1593, Security Council (March 31, 2005) UN Doc S/RES/1593.
9 Rome Statute of the International Criminal Court (July 17, 1998), 2187 UNTS 3. Article 13 (b)
stipulates that “[t]he Court may exercise its jurisdiction with respect to a crime referred to in ar‐
ticle 5 in accordance with the provisions of this Statute if… (b) A situation in which one or more
of such crimes appears to have been committed is referred to the Prosecutor by the Security
Council acting under Chapter VII of the Charter of the United Nations.”
143
cooperate with the Court, a provision accompanied by the determination that
those States had no obligations under the ICC Statute10. Furthermore, the SC
Resolution provided for the exclusive jurisdiction of a State not‐party to the
ICC Statute for any acts or omissions of its nationals serving as officials or per‐
sonnel in operations in Sudan established or authorized by the UNSC or the
African Union (hereinafter AU), a clause inserted in the resolution to assuage
the fears of the United States that US officials or personnel could fall within the
ICC’s jurisdiction ambit11.
Additionally, the members of the UNSC prohibited the financing by the UN
of any activities related to the referral, instead calling for the relevant costs to
be borne by the ICC States parties and other voluntary contributors12, in con‐
travention of the arrangements made in the ICC Statute13 and the spirit of the
ICC‐UN Relationship Agreement14. Consequently, the SC resolution can be
perceived as a mixed blessing for the ICC: on the one hand it inaugurated the
Court’s cooperation with the SC and highlighted the possibility to combine jus‐
tice with peace and security; on the other hand, the resolution encompassed a
series of problematic clauses. What proved to be most challenging for the
Court, however, was the question of immunities that the arrest warrants
against Al‐Bashir, issued on the basis of the above SC resolution, raised.
2. Immunities before the ICC and the Obligation to Cooperate: An Uneasy
Symbiosis
The referral of the Darfur situation and the issuance of an Arrest Warrant
against the incumbent president of Sudan brought to the fore the issue of im‐
munities ratione personae for a Head of State not‐party to the ICC Statute15.
The ICC Statute consecrates the rule that any immunities attaching “to the offi‐
cial capacity of a person, whether under national or international law, shall not
bar the Court from exercising its jurisdiction over such person”16.
Resolution 1593, §2.
Ibid., §6; see the comments by Cryer, R., “Sudan, Resolution 1593, and International Crimi‐
nal Justice,” LJIL 19 (2006): pp. 195‐222, 208 et seq.
12 Resolution 1593, ibid., §7.
13 See Article 115 (b) of the Rome Statute: “The expenses of the Court… shall be provided
by… (b) Funds provided by the United Nations, subject to the approval of the General Assem‐
bly, in particular in relation to the expenses incurred due to referrals by the Security Council”.
14 Negotiated Relationship Agreement between the International Criminal Court and the
United Nations, ICC‐ASP/3/Res.1 (October 4, 2004), Article 13.
15 Sudan has signed the ICC Statute on 8 September 2000, but has since notified the UN Sec‐
retary General that it does not intend to ratify it and therefore “has no legal obligation arising
from its signature”; see Dörr, O., “Article 18”, in Dörr, O., Schmalenbach, K. (eds.) Vienna Con‐
vention on the Law of Treaties: A Commentary, 2nd edition. (Berlin: Springer, 2018), p. 243 et
seq., 252 (§20).
16 Art. 27§2 of the Rome Statute. The view that ratione personae immunities are covered by
§2 and not §1 is almost unanimously shared by international legal scholars; see, indicatively
Kreß, C., Prost, K., “Article 98”, in Triffterer, O., Ambos, K., The Rome Statute of the Interna‐
tional Criminal Court: A Commentary, 3rd edition. (München/Oxford/Baden‐Baden: C.H. Beck/
Hart / Nomos, 2016), pp. 2117‐2146, Gaeta, P., “Official Capacity and Immunities”, in Cassese, A.
et al. (eds.), The Rome Statute of the International Criminal Court. (Oxford: Oxford University
10
11
144
But, while the exercise of jurisdiction by the Court and the prosecution of
any suspects are not barred by immunities17, the enforcement of the Court’s ju‐
risdiction, that is, the arrest and surrender of the indicted individuals to the
ICC is an altogether different matter. Since the ICC does not have direct en‐
forcement powers as it does not control any territory18, it relies primarily on
States (parties to the ICC Statute) to proceed with investigations, collection of
evidence, and more importantly for the present case, arrests and surrenders.
Without the assistance of State authorities, the ICC is like a “giant without
arms and limbs”19. Yet, the cooperation of States parties to the ICC Statute
regulated in Part 9 of it comprises Art. 98§1, which stipulates that:
“[t]he Court may not proceed with a request for surrender or assistance which
would require the requested State to act inconsistently with its obligations under in‐
ternational law with respect to the State or diplomatic immunity of a person…unless
the Court can first obtain the cooperation of that third State for the waiver of the im‐
munity”.
At first sight, the two provisions seem to be irreconcilable. What the ICC
Statute gives with one hand, that is, the waiver of immunities ratione personae,
it takes it with the other: according to Art. 98§1, the Court should not make a
request to a State for the arrest and surrender of a suspect if this would be con‐
trary to the international obligations of that State, namely, if the latter must re‐
spect any ratione personae immunities of the indicted individual on the basis
of general international law20. Thus, while in the vertical relationship between
the ICC and the State party whose official is indicted, there is no doubt that
immunities are waived in virtue of Art. 27§2, the legal regime with regard to
immunities in the horizontal, inter‐State, limb of the triangular relationship
(Court‐requested State‐third State) is in flux.
Two different cases must be distinguished in this framework. Firstly, if the
two (requested and third) States are both States parties to the ICC Statute, it is
broadly accepted that the third State party has waived its immunities both vis‐
Press, 2002), pp. 975‐1002, 978, 990 et seq., Werle, G., Jeßberger, F., Principles of International
Criminal Law. 3rd edition. (Oxford: Oxford University Press, 2014), pp. 271‐272 (§§724‐725).
17 In favour of being able to prosecute are Gaeta, P., Labuda, P., “Trying Sitting Heads of
State. The African Union versus the ICC in the Al Bashir and Kenyatta Cases”, in Jalloh, C.,
Bantekas, I. (eds.), The International Criminal Court and Africa. (Oxford: Oxford University
Press, 2017), pp. 138‐162, 147. Contra, precluding the possibility of prosecution when there is no
waiver, seems to be O’Keefe, R., International Criminal Law (Oxford: Oxford University Press,
2015), p. 108, who relies on Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo
v. Belgium), 2002 I.C.J Rep. 3 (February 14) (Judgment), 29 (§70).
18 Ambos, K., Treatise on International Criminal Law, Vol. III: International Criminal Proce‐
dure. (Oxford: Oxford University Press, 2016), pp. 591‐593, Kreß, C., Prost, K., “Part 9: Interna‐
tional Cooperation and Judicial Assistance–Preliminary Remarks”, in Triffterer, O., Ambos, K.
(eds.) The Rome Statute: A Commentary, pp. 2003‐2013, 2004 (§1). This has been openly admit‐
ted by the ICC itself; Al‐Bashir (Congo decision), §33.
19 Cassese, A., “On Current Trends towards Criminal Prosecution and Punishment of
Breaches of International Humanitarian Law”, EJIL 9 (1998): pp. 2‐17, 13.
20 Triffterer/Burchard, in The Rome Statute: A Commentary, ed. Triffterer/Ambos, pp. 1040
(§5).
145
à‐vis the Court and vis‐à‐vis any requested State21. Hence, those immunities will
never constitute an impediment to the arrest and surrender to the ICC of a
State party high‐ranking official22 by another State party to the ICC Statute.23
This has been affirmed by the ICC in the Malawi decision on the Al‐Bashir case,
where it stated that:
“[the] unavailability of immunities with respect to prosecution by international
courts applies to any act of cooperation by States which forms an integral part of those
prosecutions…when cooperating with this Court and therefore acting on its behalf,
States Parties are instruments for the enforcement of the jus puniendi of the interna‐
tional community, whose exercise has been entrusted to this Court when States have
failed to prosecute those responsible for the crimes within its jurisdiction”24.
Whether this legal construction is premised on the fact that Art. 27§2 con‐
cerns the whole triangular relationship between the ICC, the requested State
and the third State party to the ICC Statute25 or whether it is grounded on an
interpretation of the notion of “third State” in Art. 98§1 as meaning a State not‐
party to the ICC Statute26, the outcome is that in the horizontal relationship be‐
tween the requested and the third States parties to the ICC Statute ratione per‐
sonae immunities become inapplicable.
Nevertheless, this is not precisely the case under consideration. Since Sudan
is a State not‐party to the ICC Statute, one has to examine the legal regime for
See Al‐Bashir (South Africa decision), §79: “Indeed, just as States parties cannot invoke
their ‘own’ immunities based on official capacity to refuse to cooperate with the Court, they
cannot invoke those same immunities when cooperation in the arrest and surrender of a person
is provided by another State Party. This is the effect inter partes of the Statute, as an interna‐
tional treaty”; Al‐Bashir (Malawi decision), §18.
22 For the scope of the group of high‐ranking officials enjoying ratione personae immunity
under international law, see ILC Report (2013), UN Doc. A/68/10, Supplement No. 10, pp. 49 et
seq., 58‐66.
23 Contra Tladi, D., “The ICC Decisions on Chad and Malawi. On Cooperation, Immunities,
and Article 98“, JICJ 11(2013): pp. 199‐221, 211, Kreicker, H., Völkerrechtliche Exemtionen.
Grundlagen und Grenzen völkerrechtlicher Immunitäten und ihre Wirkungen im Strafrecht
(Berlin: Duncker & Humblot, 2007) vol. II, p. 1391 et seq.
24 Al‐Bashir (Malawi decision), §§44 and 46. See also Kreß, C., “The International Criminal
Court and Immunities under International Law for States not Party to the Court’s Statute,” in
Bergsmo, M., Yan, L. (eds.), State Sovereignty and International Criminal Law. (FICHL Publica‐
tion Series No. 15, 2012), pp. 223‐265, 257.
25 For this view, see, indicatively, Knoops, G. J. A., An Introduction to the Law of Interna‐
tional Criminal Tribunals. A Comparative Study, 2nd edition. (Leiden: Brill, 2014), p. 147, de Wet,
E., “Referrals to the International Criminal Court under Chapter VII of the United Nations Char‐
ter and the Immunity of Foreign State Officials,” AJIL Unbound 112 (2018), pp. 33‐37, 34,
Broomhall, B., International Criminal Justice and the International Criminal Court: Between Sov‐
ereignty and the Rule of Law (Oxford: Oxford University Press, 2003), p. 145, Wirth, S., “Immu‐
nities, Related Problems and Article 98 of the Rome Statute,” Criminal Law Forum 12 (2001), pp.
429‐458, 452, Magliveras, K., Naldi, G., “The ICC Addresses Non‐Cooperation by States Parties:
The Malawi Decision,” African Journal of Legal Studies 6 (2013), pp. 137‐151, 144.
26 For this view, see Schabas, W., The International Criminal Court: A Commentary on the
Rome Statute, 2nd edition. (Oxford: Oxford University Press, 2016), p. 1345, Akande, D., “The Ju‐
risdiction of the International Criminal Court over Nationals of Non‐Parties: Legal Basis and
Limits,” JICJ 1 (2003), pp. 618‐650, 640.
21
146
this scenario. In this framework, a first answer would be that as the Rome
Statute is an international treaty, Sudan cannot be bound by its provisions by
virtue of the pacta tertiis rule27. The lex specialis of the ICC Statute remains a
res inter alios acta for States not‐parties to it; for their relationships with the
ICC and the States parties and not‐parties to the ICC Statute the relevant cus‐
tomary international law rules on immunities must be applicable. Yet, such an
approach would have meant that in case Sudan refused to cooperate with the
Court, the SC referral to the ICC would have remained a dead letter.
That is why the ICC has gone to great lengths articulating a series of legal
arguments that would justify the waiver of the ratione personae immunities of
the Sudanese president, thus purporting to re‐affirm that the obligation of
States parties to the ICC Statute to arrest and surrender the Sudanese President
if he is present in a territory under their jurisdiction remains intact.
3. Al‐Bashir’s Immunities before the ICC: The Impact of the SC referral
For lack of space, we will present neither the argument of Pre‐Trial Cham‐
ber I on the existence of a customary international law exception to ratione
personae immunities before international criminal courts and tribunals28, nor
the argument that an obligation of cooperation with the ICC stems from Art.
VI in conjunction with Art. IV of the Genocide Convention29. Instead, we will
focus exclusively on legal constructions that attempt to explain the impact the
Security Council referral of the Darfur situation to the ICC had on immunities
ratione personae of the incumbent Sudanese president.
The relationship between the ICC and the UNSC was one of the most con‐
27
Article 34 of the Vienna Convention on the Law of Treaties (May 23, 1969), 1155 U.N.T.S.
331.
For this argument, see Al‐Bashir (Malawi decision), §§34 et seq. See also Bantekas, I.,
“Head of State Immunity in the Light of Multiple Legal Regimes and Non‐Self‐Contained Sys‐
tem Theories: Theoretical Analysis of ICC Third Party Jurisdiction against the Background of the
2003 Iraq War,” JCSL 10 (2005), pp. 21‐42, 41. And for a repudiation of this argument, see Al
Bashir (South Africa decision), §68; The Prosecutor v. Saif Al‐Islam Gaddafi and Abdullah Al‐
Senussi, Case No. ICC‐01/11‐01/11, Decision on the request of the Defence of Abdullah Al‐
Senussi to make a finding of non‐cooperation by the Islamic Republic of Mauritania and refer
the matter to the Security Council, ICC‐01/11‐01/11‐420, Pre‐Trial Chamber I (August 28, 2013), §
12 [hereinafter Mauritania decision]; Al‐Bashir, Decision Regarding Omar Al‐Bashir’s Potential
Travel to the Federal Republic of Ethiopia and the Kingdom of Saudi Arabia, ICC‐02/05‐01/09‐
164, Pre‐Trial Chamber II (October 10, 2013), §7 [hereinafter Ethiopia and Saudi Arabia decision];
Al‐Bashir, Decision Regarding Omar Al‐Bashir’s Potential Travel to the United States of Amer‐
ica, ICC‐02/05‐01/09‐162, Pre‐Trial Chamber II (September 18, 2013), §10 [hereinafter USA deci‐
sion]; Al‐Bashir (Congo decision), §46. See also the scathing critique to the PTC I’s reasoning in
the Malawi decision in the AU Communiqué No. 002/2012 (January, 2012) available at
http://www.iccnow.org/documents/PR‐_002‐_ICC_English_2012.pdf.
29 Convention for the Prevention and Punishment of the Crime of Genocide (December 9,
1948), 78 U.N.T.S 278. For this argument, see Minority Opinion of Judge Marc Perrin de
Brichambaut, Al‐Bashir (South Africa decision), §§4‐38. See also, indicatively, Sluiter, G., “Ob‐
taining Cooperation from Sudan – Where is the Law?,” JICJ 6 (2008): pp. 873‐884.
28
147
tentious aspects of the drafting process leading to the Rome Statute.30 This can
be, at least partially, explained by the distinct, yet to an extent overlapping,
purposes served by these two institutions. On the one hand, the jurisdiction of
the International Criminal Court over serious international crimes renders it
one of the most important tools for the maintenance of international peace and
security, for which the SC has primary responsibility (Art. 24§1 UN Charter).
Hence, it was to be expected that the latter would use the ICC for that pur‐
pose, thus raising the risk of politicization and bias in the administration of in‐
ternational justice or, as it has been eloquently formulated, rendering “jus‐
tice…subservient to peace”31. On the other hand, the ideal of preserving the
ICC’s autonomy faces the stark reality of its possible ineffectiveness. The Court
is a treaty‐based institution and despite various legal constructions to the con‐
trary32, it can only bind the States parties to the Rome Statute and exercise ju‐
risdiction within the limits set therein. Thus, the UNSC can boost the ICC’s ef‐
fectiveness by becoming the latter’s executive arm33.
The ambiguous relationship between justice and peace is reflected in the
UNSC’s role as provided in the ICC Statute. Accordingly, the SC can enhance
the Court’s jurisdiction by referring a situation to the ICC (Article 13(b))34, but
it can also weaken it by deferring the investigation or prosecution of a situation
for a period of 12 months35.
The Darfur situation implemented the first scenario giving rise to a series of
legal issues with regard to the role of the SC in the framework of the referral
and the impact the referral resolution might have on the ICC Statute’s legal re‐
See, indicatively, from the vast bibliography on the topic, Gowlland‐Debbas, V., “The Rela‐
tionship between the Security Council and the Projected International Criminal Court”, JCSL 3
(1998), pp. 97‐119, Gargiulo, P., “The Controversial Relationship between the International
Criminal Court and the Security Council”, in Lattanzi, F., Schabas, W. (eds.), Essays on the Rome
Statute of the International Criminal Court. (Ripa Fagnano Alto: Il Sirente, 1999), vol. I, pp. 67‐
103.
31 See Gowlland‐Debbas, V., “The Security Council and the ICC,” in de Chazournes, B. L. et
al. (eds.) Diplomatic and Judicial Means of Dispute Settlement. (Leiden: Martinus Nijhoff, 2013),
pp. 25‐45, 27. See also Bekou, O., “International Criminal Justice and Security”, in Mary Footer et
al. (eds) Security and International Law. (Oxford: Hart, 2016), pp. 93‐114.
32 Cryer, R., “The ICC and its Relationship to Non‐States Parties”, in Stahn, O. (ed.). Law and
Practice, pp. 260‐280, 261, who speaks about the ICC affecting the legal interests of States not‐
parties on the basis of its objective legal personality.
33 Ruiz‐Verdusco, The Relationship, pp. 33‐34.
34 We will not be dealing with the role of the SC in relation to the crime of aggression; see
Blokker, N., Barriga, S., “Conditions for the Exercise of Jurisdiction Based on Security Council
Referrals,” in Kreß, C., Barriga, S. (eds.) The Crime of Aggression: A Commentary. (Cambridge:
Cambridge University Press, 2017), pp. 646‐651.
35 Article 16 of the ICC Statute stipulates that “[n]o investigation or prosecution may be
commenced or proceeded with under this Statute for a period of 12 months after the Security
Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has re‐
quested the Court to that effect; that request may be renewed by the Council under the same
conditions”. The UNSC has activated this provision with Resolution 1422, UN Security Council
UN Doc S/RES/1422 (July 12, 2002), §1, and Resolution 1487, UN Security Council UN Doc
S/RES/1487 (June 12, 2003), §1.
30
148
gime, particularly concerning Al‐Bashir’s personal immunities and the coop‐
eration obligations of States with the ICC.
3.1. The “in accordance with the ICC Statute” argument
The Court has put forward various legal constructions in order to better
capture the impact of the SC’s referral on Sudan’s, as well as other States’,
rights and obligations. Initially, the Court remained laconic thereon, simply
noting when issuing the first arrest warrant against Al‐Bashir that:
“by referring the Darfur situation to the Court, pursuant to article 13(b) of the Stat‐
ute, the Security Council of the United Nations has also accepted that the investigation
into the said situation, as well as any prosecution arising therefrom, will take place in
accordance with the statutory framework provided for in the Statute, the Elements of
Crimes and the Rules as a whole”36.
The “in accordance with the ICC Statute” reference sparked a lively debate
on whether this meant an application of Article 27§2 ICC Statute, which would
tangibly mean the removal of the ratione personae immunities of Al‐Bashir.
Some have severely criticized a reading that focuses exclusively on Art. 27§237,
reminding that the “in accordance with the ICC Statute” argument leads no‐
where as the activation of the Statute as a whole in the Darfur situation also
means the application of Art. 98§1 of the ICC Statute bringing us back to the
endless debate over the controversial relationship between Art. 27§2 and Art.
98§1 of the Rome Statute38.
In the same vein, it has been argued that the referral itself has abrogated Al‐
Bashir’s immunities and made Art. 98§1 inapplicable39. Yet, a systematic inter‐
pretation of the resolution does not substantiate the above argument. More
specifically, if this was the case, then there will be no reason for the SC to im‐
pose on Sudan a cooperation obligation and urge other States to cooperate
with the ICC – the mere referral would suffice40.
3.2. The “implicit waiver” argument and its repercussions for the relationship
between the ICC and the SC
The Court, on its part, offered in 2014 a more detailed argument on the role
Al‐Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar
Hassan Ahmad Al Bashir, ICC‐02/05‐01/09‐3, Pre‐Trial Chamber I (March 4, 2009), §45 (emphasis
added).
37 For such a reading, see Triffterer, O., Burchard, C., “Article 27”, in Triffterer, O., Ambos, K.
(eds.) The Rome Statute: A Commentary, pp. 1037‐1055, 1054 (§25).
38 See Decision on the Progress Report of the Commission on the Implementation of the As‐
sembly Decisions on the International Criminal Court (ICC), Assembly/AU/Dec. 397 (XVIII)
(January 30, 2012), §6; Minority Opinion of Judge Marc Perrin de Brichambaut, ibid, §§41‐42 and
54‐56.
39 O’Keefe, International Criminal Law, p. 109 and 546.
40 See Zimmermann, A., “Two Steps forward, one Step backwards? Security Council Resolu‐
tion 1593 (2005) and the Council’s Power to Refer Situations to the International Criminal
Court”, in Pierre‐Marie Dupuy et al. (eds) Völkerrecht als Wertordnung– Common Values in In‐
ternational Law. Festschrift für/Essays in Honour of Christian Tomuschat. (Kehl: Engel, 2006),
pp. 681‐700, 694.
36
149
of the SC resolution in removing Al‐Bashir’s immunities. In its Congo decision,
PTC II sustained the view that by imposing on Sudan the obligation to fully
cooperate with the ICC, the UNSC implicitly removed all personal immunities
from Sudanese senior officials thus rendering Art. 98§1 inapplicable41. There is
indeed a certain plausibility to the above argument. First of all, there is no
doubt that an obligation to fully cooperate with the Court and “provide any
necessary assistance” to it signifies that Sudan itself cannot invoke Al‐Bashir’s
immunities as a procedural bar to the Court’s jurisdiction. Additionally, as has
been suggested, no express waiver is required since the SC has clearly acted
within the confines of the ICC Statute, which includes Art. 27§2. It is logical, so
the argument goes, to infer from the above that the said immunities are also
inapplicable in the horizontal relationship between Sudan and the requested
State party42.
However, the above interpretation encounters a series of persuasive objec‐
tions. If the SC acts in accordance with the ICC Statute, there are various prob‐
lems concerning the above legal construction. First of all, Art. 98§1 stipulates
that it is the national State that must waive the immunities – this cannot be
done by a third entity43. As a result, a discussion has ensued on whether the SC
itself has waived Sudan’s immunities44, which means that we are outside the
ICC Statute framework, or the SC has simply imposed on Sudan the duty to
waive those immunities when the ICC asks so45.
Secondly, it is argued that the UNSC cannot waive personal immunities, as
it only refers situations and not identified individuals to the ICC46. Only an ex‐
plicit reference to the removal of the immunities of the Sudanese President
would have constituted a waiver by the UNSC47. Besides, it is contested if the
SC intended to waive such immunities in the first place48. Thirdly, it is not al‐
Al‐Bashir (Congo decision), §29. In favour of this approach, see, indicatively, Triffterer /
Burchard, in The Rome Statute: A Commentary, ed. Triffterer/Ambos, p. 1054 (§25), Cryer, R. et
al., An Introduction to International Criminal Law and Procedure 3rd edition. (Cambridge: Cam‐
bridge University Press, 2014), p. 560.
42 Boschierro, N., “The ICC Judicial Finding on Non‐cooperation against the DRC and No
Immunity for Al‐Bashir Based in UNSC Resolution 1593,” JICJ 13 (2015), pp. 625‐653, 648.
43 Gaeta/Labuda, Trying, p. 148.
44 Boschierro, ICC Judicial Finding, p. 648.
45 Tladi, D., “The Duty on South Africa to Arrest and Surrender President Al‐Bashir under
South African and International Law”, JICJ 13 (2015), pp. 1027‐1047, 1043, Blommestijn M., Ryn‐
gaert, C., “Exploring the Obligations for States to Act upon the ICC’s Arrest Warrant for Omar
Al‐Bashir. A Legal Conflict between the Duty to Arrest and the Customary Status of Head of
State Immunity”, Zeitschrift für internationale Strafrechtsdogmatik 6 (2010), pp. 428‐444, 440.
46 See, indicatively, Pedretti, R., Immunity of Heads of State and State Officials for Interna‐
tional Crimes (Leiden: Brill, 2015), p. 287, Ramsden, M., Yeung, I., “Head of State Immunity and
the Rome Statute: A Critique of the PTC’s Malawi and DRC Decisions”, International Criminal
Law Review 16 (2016), pp. 1‐27, 15‐16.
47 See Cassese, A., Gaeta, P., Cassese’s International Criminal Law, 3rd edition. (Oxford: Ox‐
ford University Press, 2013), p. 322, Williams, S., Sherif, L., “The Arrest Warrant for President al‐
Bashir: Immunities of Incumbent Heads of State and the International Criminal Court”, JCSL 14
(2009), pp. 71‐92, 79‐80.
48 Boschierro, C., ICC Judicial Finding, pp. 644‐645, Ramsden/Yeung, Head of State Immu‐
41
150
together clear why a clause to fully cooperate with the ICC not only abrogates
immunities vis‐à‐vis the ICC49 but also vis‐à‐vis States parties to the ICC Stat‐
ute50.
While the above arguments can be rebutted51, it is important to also con‐
template over the systemic implications that the adherence to the implicit
waiver argument, as formulated by the ICC, entails. More specifically, the im‐
plicit waiver of immunities can stem from the fact that either Sudan and all
States parties and not‐parties to the ICC Statute are UN member States and
thus, bound by virtue of Article 25 UN Charter by the SC decisions52, or an
amendment to Arts 27§2 and 98§1 has taken place on the basis of the SC reso‐
lution.
Consequently, accepting the implicit waiver argument concurrently entails
an admission that the UNSC can either amend the ICC Statute or inject, in a
way, its Chapter VII powers to it, creating a parallel to the Statute legal regime
of international criminal justice53. Yet, the precedent set by such a legal con‐
struction can be dangerous.
If the SC can modify the provisions on immunities of the ICC Statute, what
prevents it from amending the Statute in other respects, concerning the list of
crimes, temporal jurisdiction or various admissibility conditions? Ultimately,
the ICC is turned into an ipso facto subsidiary organ of the SC54, subject to the
prosecutorial discretion of the Council, “an instrument to advance the Coun‐
cil’s security objectives”55. Such a tailoring of the ICC jurisdiction, where the
SC supplants the regular procedures of the ICC, cannot be accepted as such56.
A more balanced approach would be to stress that the referral must take place
in accordance with the ICC Statute, as the Council simply activates the Court’s
pre‐existing jurisdiction instead of conferring jurisdiction to it due to its Chap‐
ter VII powers57.
nity, pp. 17‐18.
49 Gaeta, P., “Does President Al Bashir Enjoy Immunity from Arrest?”, JICJ 7 (2009), pp. 315‐
322, 330.
50 See, indicatively, de Wet, E., “The Implications of President Al‐Bashir’s Visit to South Af‐
rica for International and Domestic Law,” JICJ 13 (2015), pp. 1049‐1071, 1062.
51 See, for instance, Papillon, S., “Has the United Nations Security Council Implicitly Re‐
moved Al‐Bashir’s Immunity?”, International Criminal Law Review 10 (2010), pp. 275‐288, 285,
who argues that the waiver is in abstracto and implicit because the SC only refers situations to
the Court.
52 This has been repeatedly asserted by the ICC particularly with regard to States not‐parties
to the ICC Statute; see, indicatively, Gaddafi and Al‐Senussi (Mauritania decision), §12; Al‐
Bashir (USA decision), §10; Al‐Bashir (Ethiopia and Saudi Arabia decision), §7.
53 Schabas, Commentary, p. 604.
54 Boschierro, ICC Judicial Finding, pp. 644, and critically, Gaeta, Does President, pp. 329‐330.
55 Fletcher, G., Ohlin, J. D., “The ICC–Two Courts in One?”, JICJ 4 (2006), pp. 428‐433, 429‐
430.
56 Ibid., 431‐432, Scheffer, D., “Staying the Course with the International Criminal Court”,
Cornell International Law Journal 35 (2001), pp. 47‐100.
57 In favour of this approach are, among others, Schabas, W., Introduction to the International
Criminal Court, 5th edition. (Cambridge: Cambridge University Press, 2017), p. 150, Condorelli,
L., Villalpando, S., “Referral and Deferral by the Security Council”, in Cassese, A. et al. (eds.)
151
If, conversely, the waiver of immunities stems directly from the UN Charter
and the Chapter VII powers of the SC, one might wonder on what basis did the
ICC States parties delegate to the SC the power to remove immunities when
acting under Chapter VII?58 In other words, such a view validates the unbri‐
dled expansion of SC powers through its role in the ICC Statute.
And while such an expansion cannot be easily contained due to the broad
powers of the SC in the first place, the ICC should at least assert, on the one
hand, that such powers bind only UN member States and not directly the
Court, which is an autonomous institution,59 and, on the other hand, that it has
the authority to review the legality of those powers vis‐à‐vis the ICC Statute60.
Consequently, the exercise of SC powers should be limited by the ICC statu‐
tory framework61, which constitutes the only source of law after the referral
within which the Court should be acting62, one that cannot be modified by the
SC63.
Ultimately, any request by the SC beyond the terms of the ICC Statute
would be calling the Court to “contravene its own constitutive act”64. The
Court as a treaty‐based institution can only function within the confines of its
Statute65 and no SC powers, exceeding the stipulations of the Statute itself, can
The Rome Statute, pp. 627‐655, 628 and 634. Contra, arguing that the SC confers jurisdiction to
the Court, are, indicatively, Skander‐Galand, A., “Security Council Referrals to the International
Criminal Court as Quasi‐Legislative Acts,” Max Planck Yearbook of UN Law 19 (2016), pp. 142‐
175, 143, Akande, D., “The Effect of Security Council Resolutions and Domestic Proceedings on
State Obligations to Cooperate with the ICC”, JICJ 10 (2012): pp. 299‐324, 301.
58 Jacobs, D., “The Frog that Wanted to Be an Ox. The ICC’s Approach to Immunities and
Cooperation”, in Stahn (ed.), pp. 281‐302, 295.
59 Condorelli, L., Villalpando, S., “Can the Security Council Extend the ICC’s Jurisdiction?”,
in Cassese, A. et al. (eds.) The Rome Statute, pp. 571‐582, 578, Sarooshi, D., “The Peace and Jus‐
tice Paradox: The International Criminal Court and the UN Security Council”, in McGoldrick, P.
et al. (eds.) The Permanent International Criminal Court: Legal and Policy Issues. (Oxford: Hart,
2004), pp. 95‐120, 107‐108. See, however, Art. 48§2 of the UN Charter, which calls UN member
States bound by SC resolutions to implement them also through “appropriate international
agencies”, and the remarks by Gowlland‐Debbas, The SC and the ICC, p. 30.
60 The Prosecutor v. Callixte Mbarushimana, Case No. ICC‐01/04‐01/10, Decision on the ʺDe‐
fence Challenge to the Jurisdiction of the Courtʺ, ICC‐01/04‐01/10‐451, Pre‐Trial Chamber I (Oc‐
tober 26, 2011), §27 (fn 21), Ruiz‐Verdusco, The Relationship, p. 38.
61 Prosecutor v. Gaddafi and Al‐Senussi (Mauritania decision), §20 (with regard to the princi‐
ple of complementarity), Schabas, W., Pecorella, G., “Article 13,” in Triffterer, O., Ambos, K.
(eds) The Rome Statute: A Commentary, pp. 690‐702, 700 (§17).
62 See, indicatively, Lattanzi, F., “Compétence de la Cour pénale internationale et consente‐
ment des Etats,” RGDIP 103 (1999): pp. 425‐444, 441.
63 Sarooshi, The Paradox, p. 98. For this reason, it has been argued that the exclusive jurisdic‐
tion of the national State clause in SC Res. 1593 (§6) should be found by the ICC to be incompati‐
ble with the ICC Statute; Schabas, Introduction, p. 153. As a result, either the whole resolution
should be invalidated (Schabas, Introduction, p. 66) or the clause severed (Ruiz‐Verdusco, The
Relationship, p. 38). See also Condorelli, L., Ciampi, A., “Comments on the Security Council Re‐
ferral of the Situation in Darfur to the ICC,” JICJ 3 (2005): pp. 590‐599, 594‐597.
64 Condorelli/Villalpando, Can the SC, in The Rome Statute, ed. Cassese/Gaeta/Jones, pp. 577.
65 Akande, D., “International Law Immunities and the International Criminal Court”, AJIL 98
(2004), pp. 407‐433, 417‐418 and 421.
152
be imported to it66. Any other legal construction would violate the principle of
delegation/attribution of powers67. As a result, the Court should be extremely
careful about relying on an implicit waiver argument and should explain in de‐
tail what the legal basis for the waiver is and who is concerned (i.e. Sudan, the
ICC, States parties, States not‐parties) by it.
None of that is, however, present in the Congo decision. And to make it even
more confusing, the majority of PTC II in the South Africa decision has recently
discredited in clear terms the above legal construction by declaring that “it sees
no such “waiver” in the Security Council resolution, and that, in any case, no
such waiver – whether “explicit” or “implicit” – would be necessary”68.
3.3. The “analogous to a State party” argument
Instead, the Court argued in the South Africa decision that, by referring the
Darfur situation, triggering the ICC’s jurisdiction and imposing on Sudan an
obligation to fully cooperate with the Court, Sudan is obliged under Chapter
VII and Art. 25 of the UN Charter69 to accept the exercise in accordance with
the ICC Statute of that jurisdiction by the Court70, that is, accept all acts of the
Court that take place in the framework of the Darfur referral and in conformity
with its Statute.
Consequently, Sudan acquires “for the limited purpose of the situation in
Darfur… rights and duties analogous to those of States Parties to the Statute”71.
This means that any interactions between the Court and Sudan are regulated
by the ICC Statute, which by virtue of Article 27§2, renders inapplicable Su‐
dan’s immunities, both vis‐à‐vis the Court and vis‐à‐vis States parties to the
Jacobs, ICC’s Approach, p. 290.
Sarooshi, The Paradox, p. 106. For the principle of delegation, see also, indicatively, Am‐
bos, K., Treatise on International Criminal Law, Vol. I: Foundations and General Part (Oxford:
Oxford University Press, 2013), p. 415, van Alebeek, R., “The Judicial Dialogue between the ICJ
and International Criminal Courts on the Question of Immunity”, in van den Herik, L., Stahn, c.
(eds.) The Diversification and Fragmentation of International Criminal Law. (Leiden: Brill, 2012),
pp. 93‐116, 105. Contra see Cryer, R., “Immunities and International Criminal Tribunals”, in
Orakhelashvili, A. (ed.) Research Handbook on Jurisdiction and Immunities in International
Law. (Cheltenham: Elgar, 2015), pp. 468‐496, 491‐492, who argues that it is perfectly possible for
states to “confer powers on organizations that they do not themselves have, doing collectively
what they could not do individually”. See also Kreß, C., “International Criminal Law“, in
Wolfrum, R. (ed.) Max Planck Encyclopedia of Public International Law. (Oxford: Oxford Uni‐
versity Press, 2012), vol. V. pp. 717‐732, §§10‐14, who assert that the ICC implements the jus pu‐
niendi authority of the international community and hence, it can exercise powers that States uni‐
laterally cannot.
68 Al Bashir (South Africa decision), §96.
69 Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. Rep. 16
(June 21) (Advisory Opinion), 53‐54 (§116).
70 See Skander/Galand, SC Referrals, p. 148.
71 Al Bashir (South Africa decision), §88 (emphasis added). The “analogous to a State party”
argument has been expounded by, among others, Akande, D., “The Legal Nature of Security
Council Referrals to the ICC and its Impact on Al‐Bashir’s Immunities”, JICJ 7 (2009), pp. 333‐
352, 341‐342, Pedretti, Immunity, pp. 259, 288‐290.
66
67
153
Statute72, since the Court has already stressed that Art. 98§1 only concerns the
horizontal relationship between a requested State party and, unlike Sudan,
States not‐parties to the Statute. Consequently, on the dual basis of the SC reso‐
lution and the ICC Statute, immunities are inapplicable and so States parties
(and Sudan) cannot refuse compliance with the Court’s requests for coopera‐
tion73.
The above approach has been sharply attacked by various international law
scholars. It has been observed, for instance, that if Sudan is indirectly subjected
to the ICC Statute by virtue of the SC referral, there is no purpose in imposing
to it an obligation to fully cooperate with the Court74. Furthermore, as Manuel
Ventura pointedly asserts, this legal construction imposes on Sudan all the du‐
ties but refuses the benefits of membership to the ICC Statute, thus placing it in
a very disadvantageous legal status compared to the one enjoyed by the States
parties to the Statute75.
More importantly, it has been suggested that since the SC referral does not
confer jurisdiction to the Court and is effective only in accordance with the
Rome Statute, a treaty‐based document, the SC does not have the power to
turn a State not‐party into a State party76. Thus, the Statute is only indirectly
applicable to Sudan by virtue of the SC resolution77. Consequently, ICC re‐
quests need to take into account the hurdle of Art. 98§1 of the ICC Statute, lest
such requests are bestowed the authority of a SC decision, which is not the
case here as the ICC is not a subsidiary organ of the UNSC78.
Besides, any other solution would have raised the same objections as the
ones examined above on the way one should conceptualize the relationship be‐
tween the UNSC and the ICC. More particularly, one should be extremely
careful in recognizing far‐reaching powers to the SC, such as the capacity to
impose a treaty like the ICC Statute to a State not‐party to it79.
3.4. Preliminary conclusions: The impact of the SC referral on conflicting
treaty obligations of States Parties to the ICC Statute
The above analysis highlights the juridical challenges that a referral by the
UNSC faces, especially with regard to the immunities of State officials and the
obligation to cooperate with the Court. The Court’s insistence on prosecuting
the incumbent President of Sudan – and later Gaddafi or Kennyata, sitting
Heads of State of Libya and Kenya respectively – has created a serious back‐
Al‐Bashir (South Africa decision), §§91‐93.
Ibid., §99.
74 Tladi, The ICC Decisions, p. 212, Gaeta/Labuda, Trying, p. 154 (fn 67).
75 Ventura, M., “Prosecutor v. Al‐Bashir,” AJIL 111 (2017): pp. 1007‐1013, 1011.
76 Gaeta, Does President Al‐Bashir, pp. 324‐330.
77 See, indicatively, O’Keefe, International Criminal Law, p. 566.
78 Condorelli/Villalpando, Can the SC, in The Rome Statute, ed. Cassese/Gaeta/Jones, p. 573.
79 See mutatis mutandis, Talmon, S., “The Security Council as World Legislature”, AJIL 99
(2005), pp. 175‐193, 186, Talmon, S., “Security Council Treaty Action,” RHDI 62 (2009), pp. 1‐63,
87, Fassbender, B., “Reflections on the International Legality of the Special Tribunal for Leba‐
non”, JICJ 5 (2007), pp. 1091‐1105, 1096‐1098.
72
73
154
lash in relation to the stance of the AU (and the Arab League) towards the ICC.
Among other measures adopted by the African Union80, the AU Assembly has
called on AU member States not to cooperate in the arrest and surrender of Al‐
Bashir81.
This has led some African States to argue before the ICC that they are sub‐
ject to conflicting obligations stemming from, on the one hand, the ICC Statute
and, on the other hand, the AU Assembly Decision. Nevertheless, the Court
has rebuffed these allegations, stressing that immunities have been waived by
the relevant SC resolution and that, in any event, the conflicting obligations are
not between the AU and the Court, but between the AU and the UN, which
has established Sudan’s obligation to cooperate with the Court.
Consequently, Art. 103 of the UN Charter is applicable, which provides that
the obligations under the Charter prevail over any other conflicting treaty ob‐
ligations of the UN member States, and as the SC resolution has waived Al‐
Bashir’s immunities the application of the AU decision is rendered moot.82 In
this framework, the effect of SC resolution is a double‐edged sword: having
the effect of removing Al‐Bashir’s immunities conveniently allowed the Court
to summarily dismiss the legal significance of the AU Decisions, but it might
have serious repercussions in the relationship between the SC and the ICC, as
we have explained above.
See Decision on the Application by the International Criminal Court (ICC) Prosecutor for
the Indictment of the President of the Republic of Sudan, Assembly/AU/Dec.221(XII) (February
3, 2009), §3; Decision on the Implementation of the Assembly Decisions on the International
Criminal Court, Assembly/AU/Dec.366(XVII) (July 1, 2011), §§3‐4 and 6, and Assembly/AU/Dec.
334(XVI) (January 31, 2011), §6 (calling for the deferral of the situation by the SC). The UNSC has
been unable to adopt a resolution to this respect; see Resolution 1828, UN Doc. S/RES/2008 (July
31, 2008); UN Doc. S/PV.6070 (November 15, 2013). See also Withdrawal Strategy Document,
January 12 2017, available at https://www.hrw.org/sites/default/files/supporting_resources/
icc_withdrawal_strategy_jan._2017.pdf, and Decision on the International Criminal Court, As‐
sembly/AU/Dec.622(XXVIII) (January 31, 2017), §8. The AU has also decided to establish an In‐
ternational Criminal Law Section to the African Court of Justice and Human Rights; see Protocol
on Amendments to the Protocol on the Statute of the African Court of Justice and Human
Rights, adopted June 27, 2014, available at https://au.int/en/treaties/protocol‐amendments‐
protocol‐statute‐african‐court‐justice‐and‐human‐rights. The Protocol has yet to receive its first
ratification. On the Protocol, see Naldi, G., Magliveras, K., “The International Criminal Section of
the African Court of Justice and Human Rights: An Appraisal”, AfYIL 21 (2015), pp. 293‐341. Fi‐
nally, the AU has actively sought the adoption of a UNGA Res. requesting an ICJ Advisory
Opinion; Decision on the International Criminal Court, Assembly/AU/Dec. 672(XXX) (January
28‐29, 2018), §5(ii).
81 See, indicatively, Decision on the Meeting of African States Parties to the Rome Statute of
the International Criminal Court (ICC), Assembly/AU/Dec.245(XIII) Rev.1 (July 3, 2009), §10; De‐
cision on the International Criminal Court, Assembly/AU/Dec.622(XXVIII) (January 31, 2017), §2
(iii).
82 See Al‐Bashir (Congo decision), §§28‐31. This argument was not discussed in the case of
South Africa’s failure to cooperate with the ICC.
80
155
4. SC referrals and cases of State non‐compliance with their ICC cooperation
obligations: what role for the SC?
The SC’s involvement with the ICC’s functions is not limited to the referral
decision but also extends to the enforcement of the Court’s cooperation regime.
This has been crucial in the two referral cases (Sudan and Libya) since the
prosecutions against incumbent Heads of States and other high‐ranking State
officials encountered –as we have just explained– serious resistance from States
and IOs. Thus, while in the Al‐Bashir case the Court has repeatedly stressed
the obligation of States to cooperate with it for his arrest and surrender, the
hard fact is that Al‐Bashir remains at‐large.
As a result, the ICC has found States in breach of their cooperation obliga‐
tions stemming from Part 9 (Arts 86 et seq.) of the ICC Statute83. In case of SC
referrals, the Statute provides that the Court can refer non‐compliant States
parties to the ICC Statute back to the SC for action84. This has been the case
with Malawi, Chad, the DRC, Djibouti or Uganda, for instance85. Yet, such re‐
ferrals have produced no reaction by the SC. The latter’s passivity has been
sharply criticized by the Court itself86 in the South Africa decision, where it
stated that the SC has taken no action in the past 24 meetings following SC Res.
1593, despite “proposals from different States to develop a follow‐up mecha‐
nism concerning the referral of States to the Security Council by the Court”. As
a result, the PTC II, exercising its discretion thereon, determined that a referral
of South Africa to the SC was not warranted, also because this would not be an
effective way to obtain cooperation87, 88.
More complex is the case of non‐compliance by States not‐parties to the ICC
Statute. Here a distinction shall be made between Sudan, who is subject to a
cooperation obligation by virtue of SC Res. 1593, and other States not‐parties,
which are only urged – and not mandated – to cooperate with the Court in the
See, generally, Bekou, O., Birkett, D., Cooperation and the International Criminal Court:
Perspectives from Theory and Practice (Leiden: Brill, 2016).
84 Art. 87§7 of the Rome Statute. See also the analysis by Ambos, Treatise, vol. III, 597‐598.
85 Al‐Bashir (Malawi decision), §47; Al‐Bashir (Chad decision), §14; Al‐Bashir (Congo deci‐
sion), §34; Al‐Bashir (Djibouti decision); Al‐Bashir (Uganda decision).
86 It has also been criticized by the Prosecutor, who might inform of cases of non‐compliance
(when there is no referral by the ICC itself) through her reports pursuant to §8 of SC Res. 1593;
see supra, fn 6; UN Doc. S/PV.7337, 2: “[T]he question for the Security Council to answer is what
meaningful purpose my reporting was intended to serve and whether that purpose is being
achieved”.
87 Al‐Bashir (South Africa decision), §§124 et seq. (particularly §138). The ICC had previously
not referred Nigeria to the SC; see Al‐Bashir, Decision on the Cooperation of the Federal Repub‐
lic of Nigeria Regarding Omar Al‐Bashir’s Arrest and Surrender to the Court, ICC‐02/05‐01/09‐
159, Pre‐Trial Chamber II (September 5, 2013).
88 Recently, however, the Court referred Jordan to the SC, arguing that this case differed from
that of South Africa, since the latter had triggered Art. 97 ICC Statute seeking a clarification of
the legal situation by the ICC and had been found in breach of its international obligations by
the South African courts; see Al‐Bashir (Jordan decision), §§51‐55. This might mean that other
considerations than the SC inactivity were crucial for the Court’s decision not to refer South Af‐
rica to the SC.
83
156
said resolution. In the latter case, there is no imperative reason to inform the
SC of the failure to cooperate, since this does not constitute an internationally
wrongful act and does not directly defy the SC referral. However, States not‐
parties that set aside Al‐Bashir’s immunities and cooperate in his arrest and
surrender to the ICC are also not committing an internationally wrongful act.
SC Res. 1593 can be construed as authorizing those States to consider Al‐
Bashir’s immunities under customary international law as inapplicable89.
Hence, by virtue of Art. 103, which is applicable also to SC authorizations90 and
against other obligations stemming from customary international law91, those
States can freely cooperate with the ICC.
As far as Sudan is concerned, a first question to be answered is whether its
failure to cooperate with the ICC should be considered a breach of Part 9 of the
ICC Statute or not. In other words, it must be answered whether §2 of SC Res.
1593 subjected Sudan to the cooperation regime of the ICC Statute or estab‐
lished a parallel cooperation regime, whose violation cannot give rise to the
mechanisms provided for in that Statute. The ICC dealt with this issue in the
Banda and Jerbo case92, were it argued that Sudan’s obligation to cooperate
stemmed from SC Res. 1593 adopted under Chapter VII of the UN Charter93
and then added that:
“this obligation, as formulated in the Security Council resolution, only expands the
boundaries of cooperation in relation to the Court with respect to “who” is obliged to
cooperate. It does not provide for an autonomous legal regime for cooperation that
would replace the ICC regime or represent an alternative to it. Therefore, the power of
the Chamber to request the cooperation of Sudan remains confined to the provisions of
the Statute and its supplementary instruments…the defence application needs to be
assessed in light of the cooperation regime of the Statute under Part 9”94.
Consequently, since the SC did not establish an autonomous and parallel to
the ICC Statute cooperation regime, it is the latter’s provisions that are appli‐
cable95. This conclusion is in line with our previous observation that the Court
cannot act beyond the confines of the ICC Statute and that unless the SC ex‐
plicitly establishes a separate cooperation regime reviewable by the ICC, the
de Wet, Implications, p. 1062, Akande, The Legal Nature, pp. 344‐348.
Kolb, R., “Does Article 103 of the Charter of the United Nations Apply only to Decisions or
also to Authorizations Adopted by the Security Council?”, ZaöRV 64 (2004), pp. 21‐36, 31.
91 Leiæ, J. R., Paulus, A., “Article 103”, in Bruno Simma et al. (eds.) The Charter of the United
Nations: A Commentary, 3rd edition. (Oxford: Oxford University Press, 2012), pp. 2110‐2137,
2133 (§§68‐69).
92 See Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus,
Case No. ICC‐02/05‐03/09, Decision on “Defence Application pursuant to articles 57(3)(b) &
64(6)(a) of the Statute for an order for the preparation and transmission of a cooperation request
to the Government of the Republic of the Sudan”, ICC‐02/05‐03/09‐169, Pre‐Trial Chamber IV
(July 1, 2011).
93 Ibid., §14.
94 Ibid., §15.
95 See also Kreß, C., Prost, K., “Article 86”, in Triffterer/Ambos (eds.) The Rome Statute: A
Commentary, pp. 2014‐2018, 2015 (§3), Kreß, C., Prost, K., “Article 87”, in ibid., pp. 2019‐2042,
2030 (§39).
89
90
157
one of the ICC Statute should be deemed applicable96.
Nevertheless, the Court’s two‐tiered approach, namely, that the obligation
stems from the SC resolution but the consequences of non‐cooperation will be
appraised on the basis of the ICC Statute, highlights once again the ambiguities
in the relationship between the Court and the Council. While the Council can
expand the ICC’s cooperation net, this should normally take place by virtue of
Chapter VII of the UN Charter97. Moreover, the Court’s treatment of Sudan as a
State not‐party to the Statute seems at odds with its recent adherence to the
“analogous to State party” argument.
Having clarified the applicability of the ICC Statute, a further question con‐
cerns the legal basis upon which the Court can refer a non‐compliant State not‐
party to the SC. In this respect, Article 87§5(a) ICC Statute provides that “the
Court may invite any State not‐party to this Statute to provide assistance under
the Part [i.e. Part 9 of the ICC Statute] on…any other appropriate basis”. This
has been interpreted as encompassing the scenario where the SC has referred a
case to the ICC and has imposed an obligation of cooperation with it to specific
States not‐parties to the Statute98.
Nevertheless, Art. 87§5(b) gives the Court the power to inform the SC of a
case of failure to cooperate by a State not‐party (where the Security Council re‐
ferred the matter to the Court), but does not include a reference to the obliga‐
tion to cooperate being established under “any other appropriate basis”, like
the previous paragraph. This led to confusion, as the Court (and some authors)
at a given instance argued that its power to make a finding of non‐compliance
by a State not‐party and inform the SC was an inherent one and not based on a
specific provision of the ICC Statute99, whereas at other instances the Court re‐
lied to an analogous application of Art. 87§7 of the ICC Statute100.
The most consistent approach is, however, to apply Art. 87§5(b) of the ICC
See, indicatively, Akande, The Effect, pp. 309, 311.
Office of the Prosecutor, Informal Expert Paper: Fact‐Finding and Investigative Functions
of the Office of the Prosecutor, Including International Co‐operation, 2003, §§92‐93.
98 Prosecutor v. Gaddafi and Al‐Senussi, Renewed Application on behalf of Mr. Abdullah Al‐
Senussi to Refer Libya and Mauritania to the UN Security Council, ICC‐01/11‐01/11‐304, Pre‐
Trial Chamber I (March 19, 2013), §11, Danilenko, G., “The Statute of the International Criminal
Court and Third States,” Michigan Journal of International Law 21 (2000), pp. 445‐494, 478 (fn
130).
99 The Prosecutor v. Ahmad Harun and Ali Kushayb, Case No. ICC‐02/05‐01/07, Decision in‐
forming the United Nations Security Council about the lack of cooperation by the Republic of
the Sudan, ICC‐02/05‐01/07‐57, Pre‐Trial Chamber I (May 15, 2010), p. 6: “Considering that, by
virtue of Security Council Resolution 1593 (2005), when the Republic of the Sudan fails to coop‐
erate with the Court, thereby preventing the Court from executing the task entrusted to it by the
Security Council, the Court has the inherent power to inform the Security Council of such a fail‐
ure”, Gaddafi and Al‐Senussi case, §15. For as critique of these decisions, see Klamberg, M., Evi‐
dence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Dis‐
puted Events (Leiden: Martinus Nijhoff, 2013), pp. 260‐261.
100 Al‐Bashir (Arrest Warrant I), §248; Prosecutor v. Gaddafi and Al‐Senussi, Decision on the
non‐compliance by Libya with requests for cooperation by the Court and referring the matter to
the United Nations Security Council, ICC‐01/11‐01/11‐577, Pre‐Trial Chamber I (December 10,
2014), §§20‐22.
96
97
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Statute101. This view is supported by Art. 17§3 of the ICC‐UN Relationship
Agreement102, which mentions both Art. 87§5(b) and Art. 87§7, thus making
the implicit distinction between States not‐parties to the ICC Statute and States
parties thereto, respectively. The above analysis also highlights the need for
more clarity in the treatment of the legal question arising from a SC referral to
the Court. The ensuing legal security will contribute equally to a better concep‐
tualization of the relationship between the ICC and the UNSC.
5. Conclusion
Despite having repeatedly affirmed that Sudan and States parties to the ICC
Statute have an obligation to cooperate with the ICC in the arrest and surren‐
der of Al‐Bashir, the fluctuating legal argumentation of the Court and the seri‐
ous objections raised to each of the legal constructions proposed by it reflect
the difficult symbiosis between the ICC and the UNSC in case of referrals of
situations by the SC to the Court under Art. 13(b) of the ICC Statute. Without
aiming at taking a definitive stance in favour of the one or the other legal con‐
struction, we believe that the referral by the SC acting under Chapter VII
should impact upon the appreciation of the legal regime applicable to Sudan
and the cooperating States.
The Court must, however, approach the role of the SC more consistently
and explain in detail how the SC’s referral influences the ICC Statute, always
keeping in mind the implications of its legal argumentation on the relationship
between the Court and the UNSC. Such an opportunity has been finally of‐
fered to the ICC after the appeal of the PTC decision by the Hashemite King‐
dom of Jordan103. In this framework, the ICC Appeals Chamber has invited ob‐
servations from IOs, States parties and international law scholars104 and it is to
be hoped that with its decision it will settle the contradictory and at times con‐
fusing pronouncements of the Pre‐Trial Chambers105 on the relationship be‐
tween the SC, the ICC and States, parties and not‐parties to the ICC Statute.
Kreß/Prost, Article 87, ibid, p. 2030 (§§39‐40).
Supra, fn 14.
103 Al‐Bashir, The Hashemite Kingdom of Jordanʹs appeal against the ʺDecision under article
87(7) of the Rome Statute on the non‐compliance by Jordan with the request by the Court for the
arrest and surrender [of] Omar Al‐Bashirʺ, ICC‐02/05‐01/09‐326, ICC Appeals Chamber (March
12, 2018).
104 Ibid., Order inviting expressions of interest as amici curiae in judicial proceedings (pursu‐
ant to rule 103 of the Rules of Procedure and Evidence), ICC‐02/05‐01/09‐330, ICC Appeals
Chamber (March 29, 2018).
105 See the scathing critique by Ventura, Al‐Bashir, 1010, who notes that Judge Tarfusser sat
on each Pre‐Trial Chamber that presented one of the four different legal constructions on the
topic (!) without ever feeling the need to discuss the changes in his opinion.
101
102
Russian‐Ukrainian War and International Criminal Law.
A Case Study about Crimes against Sexual Dignity
Ioannis P. Tzivaras
Tutor, Department of Economics and Administration, Open University of Cy‐
prus
1. Introduction
Forms of sexual violence, including all forms of crimes against sexual dig‐
nity, are increasingly recognized as a facet of many armed conflicts, regarded
among the most common human rights violations1. The Russian‐Ukrainian
armed conflict and the Russian aggression violated general principles of Inter‐
national Law and constitute a major factor in the transformation of the interna‐
tional legal order2.
The ongoing military conflict in eastern Ukraine accompanied by many
cases of human rights violations, including evidence of sexual violence in the
regions affected by the military operations and the creation of large‐scale flows
of internally displaced persons3. Generally, Russian‐Ukrainian War, have pro‐
jected many incidents of sexual and gender‐based violence, but, till now they
considered being too limited and difficult to verify. In this case, sexual crimes
are the “tip of the iceberg”, in general, making, further, an underreporting of
sexual and gender‐based violence status4.
2. Sexual violence in the temporary occupied territories.
The Russian‐Ukrainian war offered many facts of gender‐based crimes
which took place in the period of the armed conflict. The early stages of the
conflict gave many document cases and reports concerning gender‐based
crimes against women and, also, men. The temporary occupation of part of the
territory in Eastern Ukraine has been a research field of various international
Leatherman, L. J., Sexual Violence and Armed Conflict. (Cambridge: Polity Press, 2011), pp.
2, 13‐14.
2 OSCE Parliamentary Assembly, 2015, Resolution on the Continuation of Clear, Gross and
Uncorrected Violations of OSCE Commitments and International Norms by the Russian Federa‐
tion. https://www.oscepa.org/meetings/annual‐sessions/2015‐annual‐session‐helsinki/2015‐ hel‐
sinki‐final‐declaration/2282‐07. See, Tsybulenko, E., Pakhomenko, S., “The Ukrainian Crisis as a
Challenge for the Eastern Partnership,” in Kerikmae, T., Chochia, A. (eds.) Political and Legal
Perspectives of the EU Eastern Partnership Policy. (Cham, Heidelberg, New York, Dordrecht,
London: Springer, 2016), pp. 167‐168, Grant, T., Aggression against Ukraine: Territory, Respon‐
sibility and International Law. (London, New York, Shanghai: Palgrave Macmillan, 2015), pp.
43‐45.
3 Ukrainian Centre for Social Reforms, Gender‐Based Violence in the Conflict‐Affected Re‐
gions of Ukraine: Analytical Report. (Kyiv, 2015), p. 8.
4 Volosevych, I. et al., The Prelevance of Violence against Women and Girls. (Kyiv, 2014), pp.
17‐47.
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bodies and NGO’s on gender equality5 on finding and highlighting incidents of
sexual violence punishable under International Criminal Court’s Statute.
Given that armed conflicts exacerbate existing gender inequalities, placing,
in particular, women at a heightened risk of various forms of sexual violence
by both State and non‐State actors6, it can’t be provided sufficient information
to prove the real situation for the commission of those crimes, given the lack of
statistics and ineffective investigation of sexual violence. Considering that the
Russian‐Ukrainian war is still under preliminary examination from Interna‐
tional Criminal Court, the facts from the breakdown of rule of law in conflict‐
affected areas, has increased vulnerability to sexual and gender‐based violence,
including both crimes related to the jurisdiction of the Court and, also, domes‐
tic sexual violence in areas with a high concentration of military and armed
groups7.
Bearing in mind that the armed conflict in Ukraine resulted in the existence
of many internally displaced people8, women are increasingly vulnerable to
sexual violence and other heinous human rights violations and abuses and se‐
verely victimized by wartime displacement, both in governmental and non‐
governmental controlled areas9. In general, the conflict, especially in the east‐
ern part of Ukraine, has a major impact on the lives of women and girls. As a
significant part of internally displaced people, women, forced from their com‐
munities or trapped in conflict‐affected areas, are at an intensified use or threat
of use of sexual violence as well trading sex as a means of providing the most
basic needs, in the meaning of “survival sex”10.
Onuch, O., Martsenyuk, T., “Mothers and Daughters of the Maidan: Gender Repertoires of
Violence and the Division of Labour in Ukrainian Protests,” Social, Health and Communication
Studies 1(1) 2014, pp. 110‐111.
6 Committee on the Elimination of Discrimination against Women (2013) General Recom‐
mendation no. 30 on Women in Conflict Prevention, Conflict and Post‐Conflict Situations, CE‐
DAW/C/GC/30.
7 CSO’s Shadow Report 2016 on Ukraine 2016, Implementation of the Recommendations of
the Committee on the Elimination of Discrimination against Women No. 30 on Women in Con‐
flict Prevention, Conflict and Post‐Conflict Situations and UN Resolution 1325 Women, Peace
and Security of the UN Convention on the Elimination of All Forms of Discrimination against
Women, pp. 5‐8. http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/UKR/INT_
CEDAW_NGO_UKR_24435_E.pdf.
8 Maiorova, A., Donbas in Flames: Guide to the Conflict Zone. (Lviv, 2017), pp.50‐52.
9 OSCE Chief Monitor Apakan Condemns Sexual Harassment of Special Monitoring Mission
to Ukraine Patrol Member in Donetsk Region, http://www.osce.org/special‐monitoring‐mission‐
to‐ukraine/315891. As it was stated, “This latest incident, in which a man, armed with an assault
rifle, intimidated an unarmed civilian female member of an SMM patrol by making comments of
a sexual nature, demands a swift and unequivocal response by the so‐called “Donetsk People’s
Republic”. This must include identification of the individual responsible, and full application of
appropriate measures to ensure that such incidents are not repeated.”
10 OSCE Special Monitoring Mission to Ukraine 2012, Thematic Report: Internal Displace‐
ment in Ukraine. SEC.FR/473/14/Corr.1. http://www.osce.org/ukraine‐smm/122620?Download
=true.
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3. Gender‐based Violence and the International Criminal Court on the
Ukrainian Situation.
As it is known, a real breakthrough came with the establishment of the In‐
ternational Criminal Court on the supranational criminal prosecution of sexual
violence11. The International Criminal Court, provides, through its statutory ju‐
risdiction, the prosecution of crimes against sexual dignity, given the broader
term of gender based violence12. The Rome Statute regards both the explicit
stipulation of a list of sexual crimes as crimes against humanity and war
crimes, as well as consideration of gender issues in the legal process13. Fur‐
thermore, Articles 7 and 8 of the Court’s Statute establish those crimes and in‐
clude, inter alia, the direct punishment of sexual violence14. Gender‐based vio‐
lence in International Criminal Law constitutes a major form of sexual vio‐
lence, which, not only involves rape.
In general, sexual crimes have been defined as an act of sexual nature which
is committed on a person under coercive circumstances. Furthermore, based on
the ad hoc Tribunal’s practice15, sexual assault defined, similarly, as all serious
abuses of sexual nature inflicted upon physical and moral integrity of a person
by means of coercion. Sexual assault has been, similarly, defined as all serious
abuses of a sexual nature inflicted upon the physical and moral integrity of a
person by a means of coercion, threat of force or intimidation in a way that is
both degrading and humiliating for the victim’s dignity16.
As it is known, on the 17th of April 2014, the Ukrainian Government lodged
a declaration under Article 12(3) of the Rome Statute, accepting the jurisdiction
of the International Criminal Court over alleged crimes committed in the con‐
text of the “Maidan” protests on its territory from the 21st of November 2013 to
Carden, S. R., Sadat, L. N., “The New International Criminal Court: An Uneasy Revolu‐
tion,” Georgetown Law Journal 88(3) (2000), pp. 434‐436, Beresford, S., “Unshackling the Paper
Tiger: The Sentencing Practices of the Ad Hoc International Criminal Tribunals for the Former
Yugoslavia and Rwanda,” International Criminal Law Review 1 (2001), pp. 33‐50, Boas, G.,
“Comparing the ICTY and the ICC: Some Procedural and Substantive Issues,” Netherlands In‐
ternational Law Review 47(3) (2000), pp. 268‐272.
12 Dieng, A., “Other Preparations for the Establishment of the Court: International Criminal
Justice. From Paper to Practice: A Contribution from the International Criminal Tribunal for
Rwanda to the Establishment of the International Criminal Court,” Fordham International Law
Journal 25 (2002), pp. 688‐707, Oosterveld, V., “Prosecuting Gender‐Based Persecution as an In‐
ternational Crime,” in De Brouwer, A. M. et al. (eds.) Sexual Violence as an International Crime:
Interdisciplinary Approaches. (Oxford: Oxford University Press, 2013), pp. 66‐70.
13 Hagay‐Frey, A., Sex and Gender‐Crimes in the New International Law. Past, Present, Fu‐
ture. (Leiden, Boston: Martinus Nijhoff Publishers, 2011), p. 104.
14 De Brouwer, A. M., Supranational Criminal Prosecution of Sexual Violence: The ICC and
the Practice of the ICTY and the ICTR. (Antwerpen, Oxford: Intersentia, 2005), pp. 19‐22.
15 International Criminal Tribunal for Rwanda, Prosecutor v. Jean‐Paul Akayesu, Judgment,
02 September 1998, ICTR‐96‐4‐T, para 688, International Criminal Tribunal for former Yugosla‐
via, Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub
Prcac, Judgment, 02 November 2001, IT‐98‐30/1‐T, para 180, 559.
16 De Ruiter, D., Sexual Offences in International Criminal Law. (The Hague: International
Courts Association, 2011), p. 7.
11
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the 22nd of February 2014 and onwards, on the basis of the Declaration of the
Parliament of Ukraine. Passing loads, International Criminal Court exercise its
jurisdiction over Court’s Statute for crimes committed on the territory of
Ukraine since 21 November 2013.
Based on the communications that the Court received, the preliminary ex‐
amination focused, to events in Crimea and Eastern Ukraine and concluded on
alleged crimes against humanity committed in the context of the ‘Maidan’ pro‐
tests, including murder, torture and other inhuman acts. Given that crimes
committed in the context of armed hostilities, International Criminal Court’s
jurisdiction entails a further analysis of whether those crimes occurred in the
context of an international or a non‐international armed conflict.
The summary of alleged crimes on the Report on Preliminary Examination
Activities of 201617 concerning, especially, Crimea and Eastern Ukraine, is
based on publicly reports and received information by the Office of the Prose‐
cutor. As it is indicated, in Crimea there were many incidents concerning har‐
assment of Crimean Tatar population and a significant number of internally or
non‐internally displaced persons, killings and abduction of members of the
Crimean Tatar population, ill‐treatment in the context of detention or abduc‐
tion, including, among others, threats of sexual violence, detention and fair
trial rights and issues concerning compelled military service.
In the area of Eastern Ukraine, International Criminal Court, based on the
Preliminary Report, has evidence on killings and injuries of civilians, members
of the armed forces and armed groups, destruction of civilian objects, includ‐
ing residential properties, schools and kindergartens in both governmental and
non‐governmental territories, cases of detention of civilians and alleged armed
group members and in many cases accompanied with ill‐treatment, including
use or threat of sexual violence, instances of disappearance, it is unclear how
many individuals had been forcibly disappeared, torture and ill‐treatment, in‐
volving several hundred alleged victims, including victims of sexual violence,
sexual and gender based violence, especially on the context of detention and
targeted female and male victims, including civilians and members of the
armed forces and armed groups.
These alleged crimes were attributed to both state and non‐state forces. In
several documented cases sexual violence was perpetrated on the context of in‐
terrogations. Specifically, the Report on Crimea refers to harassment and
abuse, and possibly to a sexual nature abuse, internally displaced persons,
with a large proportion of this number believed to be of Crimean Tatar ethnic‐
ity, within mainland Ukraine. Also, based on the International Criminal
Court’s Report, in Crimea, cases of ill‐treatment, including several incidents in
the context of detention, abduction or forcible transfer from prisons in Crimea
to prisons to the territory of the Russian Federation, including, among others,
use and threats of sexual violence have been highlighted.
International Criminal Court, The Office of the Prosecutor 2016, Report on Preliminary Ex‐
amination Activities 2016, pp. 36‐41. https://www.icc‐cpi.int/iccdocs/otp/161114‐otp‐rep‐pe_eng.
pdf.
17
163
In Eastern Ukraine, the International Criminal Court notes that, apart from
a large number of civilians to have been killed or injured in armed hostilities,
all sides have allegedly detained both civilians and members of armed groups,
while ‘DPR’ and ‘LPR’ forces alleged to have detained civilians suspected and
ill‐treated them both in the context of sexual violence. Torture and ill‐treatment
methods have been reportedly perpetrated by both sides, involving several al‐
leged victims and many cases of sexual abuse in both government controlled
territory and in many areas outside the government’s control have been docu‐
mented.
The Office of the Prosecutor, notes that, while there are many documented
instances of gender‐based violence in the context of the armed conflict in East‐
ern Ukraine, there is an acknowledgement that the available information is
considered to be underreporting due to social parameters and a lack of services
support in armed conflict affected areas. As it is indicated, the majority of
those instances occurred on the context of illegal detention of civilians and
members of the armed groups on crimes committed by both state and non‐
state actors. Based on the report, those sexual crimes include rape, threats of
rape, forced nudity and beating of genitals, especially during interrogations.
4. Connection of Sexual Crimes in Ukraine to International Criminal Court’s
Jurisdiction.
International Criminal Court conducts an in depth analysis of received in‐
formation related to the Russian‐Ukrainian conflict in order to establish a rea‐
sonable connection of the alleged crimes within the jurisdiction of the Court.
Given that the Court’s analysis is based on the examination of information
relevant to determining the existence of international and/or non‐international
armed conflict in the areas of Eastern Ukraine and the jurisdictional analysis of
the related criminal acts or omissions, the Court proceeds to analysis of the
documented information and materials provided by international organiza‐
tions, various NGO’s, the Ukrainian Government and many individuals. Given
that, the Russian‐Ukrainian War can’t constitute genocide, regarding the simi‐
lar jurisdiction of the International Criminal Court, the Court has jurisdiction
on crimes against humanity, where article 7(1)(g) makes direct reference to
sexual crimes such as “rape, sexual slavery, enforced prostitution, forced preg‐
nancy, enforced sterilization, or any other form of sexual violence of compara‐
ble gravity”. Furthermore, sexual crimes can be connected to acts of enslave‐
ment, displacement, torture, persecution, segregation, and through other in‐
humane acts intentionally causing great suffering or serious injury of mental or
physical health.
Regarding to the provisions of International Criminal Court Statute con‐
cerning war crimes, sexual crimes initially referred in article 8(2)(b)(xxi)‐(xxii),
where specific provisions concerning major violations of laws and customs ap‐
plicable in international armed conflicts. Furthermore, article 8 states the
commission of sexual offenses under an armed conflict not of an international
164
character18, which is also referred to the aforementioned offenses and in par‐
ticular article 8(2)(c)(ii) and article 8(2)(e)(vi) respectively19. Still, the impact of
armed conflict victims, in particular sexual violence, is a matter of special in‐
terest for the International Criminal Court, which seems, at first, from the arti‐
cle 42(9) and article 43(6)20, while the article 43(6), according to the Registry, re‐
fers to the operation of the Special Unit for Victims and Witnesses21.
Particular reference to sexual crimes carried out in article 54(1)(b) for the
duties and the powers of the Prosecutor with respect to investigations. Finally,
special mention is made in the article 68(1) of International Criminal Court
Statute, combined with the provisions of articles 43(6) and 75 on the protection
of victims and witnesses involved in the proceedings before the Court.
Taking into consideration all the above and given the situation that comes
from the various reports before the Court and the fact that the Court may exer‐
cise jurisdiction over Rome Statute crimes committed in the Ukrainian territory
during the relevant periods, the Court states that there are many incidents that
constitute attacks directed against the civilian population, under article 7(2)(a)
of the Statute which constitutes serious human rights abuses, but not system‐
atic and widespread under the general provisions of article 7 of the Statute.
Given the humanitarian situation in conflict affected areas in Ukraine, it can
be held that crimes against humanity can be connected to crimes against sexual
dignity in many cases. Taking into account the relevant case law from the ad
hoc International Criminal Tribunals and International Criminal Court, and es‐
pecially with enslavement [article 7(1)(c)], deportation or forcible transfer of
population [article 7(1)(d)], especially from the view of internally displaced
persons in the Ukrainian territory, imprisonment or other severe deprivation
of physical liberty in violation of fundamental rules of International Law [(arti‐
cle 7(1)(e)], torture [article 7(1)(f)], directly, rape, sexual slavery, enforced pros‐
titution, forced pregnancy, enforced sterilization or any other form of sexual
violence of comparable gravity [article 7(1)(g)], persecution against any identi‐
fiable group or collectivity on political, racial, national, ethnic, cultural, reli‐
gious, gender or other grounds that are universally recognized as impermissi‐
West, D. J., Sexual Crimes and Confrontation: A Study of Victims and Offences. (Gower:
Aldershot, 1987), pp. 3‐5, Katz, S., Mazur, M. M., Understanding the Rape Victim. (New York:
John Willey and Sons, 1979), pp. 11‐13, Van Boven, T., “The Position of the Victim in the Statute
of the ICC,” in Von Hebel, H. et al. (eds.) Reflections on the International Criminal Court: Essays
in Honor of Adrian Bos. (The Hague: T.M.C. Asser Press, 1999), pp. 77‐89.
19 Pillay, N., “The Rule of International Jurisprudence in Redressing Crimes of Sexual Vio‐
lence,” in Vohrah, L. C. et al. (eds.) Man’s Inhumanity to Man. Essays on International Law in
Honor of Antonio Cassese. (The Hague: Kluwer Law International, 2003), pp. 685‐692.
20 Garkawe, S., “The Victim‐Related Provisions of the Statute of the International Criminal
Court: A Victimological Analysis,” International Review of Victimology 8 (2003), pp. 345‐367.
21 Ingadottir, T. et al., “The Victims and Witnesses Unit (Article 43.6 of the Rome Statute,” in
Ingadottir, T. (ed.) The International Criminal Court Recommendations on Policy and Practice:
Financing, Victims, Judges and Immunities. (Ardsley, New York: Transnational Publishers,
2003), pp. 2‐45, Jones, W. D., “Protection of Victims and Witnesses,” in Cassese, A. et al. (eds.)
The Rome Statute of the International Criminal Court: A Commentary. (Oxford: Oxford Univer‐
sity Press, 2002), pp. 1355‐1370.
18
165
ble under International Law [article 7(1)(h)] and, finally, other inhumane acts
of a similar character intentionally causing great suffering, or serious injury to
body or to mental or physical health [article 7(1)(k)].
Also, taking into account, that International Criminal Court investigates
whether the armed conflict in Ukraine was of an international or non‐
international character, sexual crimes, depending on the interpretation, can be
connected with grave breaches of the Geneva Convention of 12 August 1949,
other serious violations of the laws and customs applicable in international
armed conflict with the established framework of International Law, serious
violations of article 3 common to the four Geneva Conventions of 12 August
1949 in the case that the armed conflict in Ukraine can be considered as an
armed conflict not of an international character and, finally, other serious vio‐
lations of the laws and customs applicable in armed conflicts not of an interna‐
tional character, within the established framework of International Law.
Specifically, sexual crimes can be found under the general provisions of
grave breaches of the Geneva Conventions of 12 August 1949 and especially in
article 8(2)(a)(ii) concerning torture or inhuman treatment and article
8(2)(a)(iii) for willfully causing great suffering or serious injury to body or
health. Also, taken into account the provisions of other serious violations of the
laws and customs applicable in international armed conflict, sexual crimes can
be connected to article 8(2)(b)(xxi) to commit outrages upon personal dignity,
in particular humiliating and degrading treatment and article 8(2)(b)(xxii) to
commit rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence also constituting a grave
breach of the Geneva Conventions.
Finally, taking into account, the reported crimes in the Russian‐Ukrainian
war, sexual violence can be connected to article 8(2)(c)(i), for violence to life
and person, in particular murder of all kinds, mutilation, cruel treatment and
torture as serious violations of article 3 common to the four Geneva Conven‐
tions of 12 August 1949 in the case of an armed conflict not of an international
character, as well as article 8(2)(3)(vi) for commiting rape, sexual slavery, en‐
forced prostitution, forced pregnancy, enforced sterilization and any other
form of sexual violence also constituting a serious violation of article 3 com‐
mon to the four Geneva Conventions as other serious violations of the laws
and customs applicable in armed conflicts not of an international character.
5. Conclusion
It is obvious that the commission of sexual crimes as violations of human
rights on a large scale during the commission of armed conflict, is an insepara‐
ble real situation. During the last twenty years, the high productivity of Inter‐
national Criminal Law on the internationalization of sexual violence has been
indeed demostrated, in addition to the prosecution of the established interna‐
tional crimes and their transformation in war crimes, crimes against humanity
and crimes that constitutes genocide.
The contribution, in particular, of the ad hoc International Criminal Tribu‐
166
nals, the Special Court for Sierra Leone and the International Criminal Court,
was subversive because, the previously unclear legal framework on sexual vio‐
lence was clarified and a universal acceptance of crimes against sexual dignity
as international crimes, marginalizing, in this way, the effect of the old concept
of the unpunished attacks on the sexual dignity of the victim. It, therefore, be‐
comes important that, beyond the provision of sexual violence as a bunch of
criminal crimes of international concern, particular attention is given to the
protection of victims of sexual crimes, given the specificity of the scheme in
which they vested.
The big question in the case of the Russian‐Ukrainian war is whether the
International Criminal Court as a permanent and established holdover of in‐
ternational criminal justice will continue to face, in addition to its statutory
provision, crimes against sexual violence to the extent they deserve, given their
heinous nature and the particular arising needs of the victims. It must be said
that International Criminal Court must continue to engage both with Ukrain‐
ian authorities, international and national NGO’s, civil society and other stake‐
holders on all the matters that they’re relevant to the examination of the situa‐
tion in the Ukrainian territory. Within the fact that the Office of the Prosecutor
continues its analysis of the alleged sexual crimes, among other relevant
crimes, and the open‐ended Ukrainian acceptance of International Criminal
Court’s jurisdiction, it must be said that, in the case of Ukraine, sexual violence
will play a significant role in the proceedings before the Court. What should be
noted, finally, is that the Court should rely on the significant case‐law but also
in the jurisprudence of the ad hoc International Criminal Tribunals to establish
and strengthen the view that sexual violence, especially in armed conflicts, are
heinous crimes which are committed under the cruelest conditions.
Changing the Map: The United Nations and
International Law on the Creation of States
Harikleia Aroni
Adjunct Lecturer, Faculty of Law, Democritus University of Thrace
1. Introduction
Undoubtedly, we live in a world different than it was in 1945: the world
map comprises of more than twice the number of sovereign States than in the
end of the Second World War. Although many factors have, of course, contrib‐
uted to this change, it cannot be disputed that the most important of them was
decolonization. The United Nations have played a very important role during
the decolonization; by contributing to the changes in the world map, however,
it has also contributed to changes in international law on the creation of States.
Other changes have been more subtle.
There are two major changes in international law on the creation of States.
First, there is self‐ determination of peoples, in the evolvement of which, as
well as in defining its subject, content and limitations, the role of the General
Assembly has been paramount. Secondly, there is recognition of States and the
evolvement of the prohibition of recognition of entities created by a violation
of the prohibition of the use of force, in violation of self‐determination of peo‐
ples or of fundamental human rights.
Before elaborating on self‐determination and recognition, however, it is
necessary to set the questions in the right context, that is to say, the Charter of
the United Nations. We shall, therefore, start with the International Trustee‐
ship System, which was established in order to promote progressive develop‐
ment of non self‐ governing territories towards self‐independence and the
conditions of admission to the Organization which presuppose existing state‐
hood under current international law.
2.1. Admission to the UN
According to Article 4 (1) of the Charter:
“1. Membership in the United Nations is open to all other peace‐loving
states which accept the obligations contained in the present Charter and, in the
judgment of the Organization, are able and willing to carry out these obliga‐
tions.
2. The admission of any such state to membership in the United Nations
will be effected by a decision of the General Assembly upon the recommenda‐
tion of the Security Council.”
There are three prerequisites that a State must fulfill in order to become a
member of the United Nations: it must be peace loving, it must accept the obli‐
gations contained in the Charter and it must be able and willing to carry out
these obligations. Moreover, admission is effected by a decision of the General
168
Assembly upon the recommendation of the Security Council. Admission of
new members to the United Nations is, according to Article 18 (2), included in
the important questions on which decisions of the General Assembly are made
by a two‐thirds majority of the members1.
During the early years of the United Nations, controversies were indeed
raised over the interpretation and application of Article 4. However, the debate
was about questions rather procedural, related to the malfunctioning of the Se‐
curity Council due to the Cold War. Two questions on which an Advisory
Opinion of the International Court of Justice was requested on behalf of the
General Assembly were whether the conditions laid down for the admission of
States were exhaustive and whether a State might be actually admitted by the
General Assembly in the absence of a recommendation or in case of an unfa‐
vorable recommendation by the Security Council2. Another issue was whether
micro‐ States, that is to say, States having a very small population or very small
territory, were able to carry out the obligations contained in the Charter3.
There is, however, a question that was not raised, the question of statehood.
Full membership to the UN is restricted to sovereign States: according to Arti‐
cle 4, membership is open to States only. A State applying for membership
must indeed be a State under international law, recognized by other States and
part of the international community; in any event, it must be considered a State
by the General Assembly and the Security Council. The UN was not a stranger
to according full membership to entities that would not qualify as sovereign
States: Belarus and Ukraine had been members to the UN ever since 1945.
Nevertheless, the question was not raised, it was rather left to be decided by
practice.
2.2. The International Trusteeship System and the International Trusteeship
Council
At the end of the Second World War, approximately one third of the world
population lived in non self‐ governing territories. Times were changing, how‐
ever, and they had been changing after the First World War. Under the Man‐
date System, established under Article 22 of the Covenant of the League of Na‐
tions, the mandates were divided into three groups, based upon the level of
development of the population and the level of control exercised by the man‐
datory power. After the Second World War, most of the remaining mandates
of the League of Nations would become UN Trust Territories.
The International Trusteeship System, established under Chapter XII of the
White, N. D., The Law of International Organizations, 2nd edition. (Manchester: Manches‐
ter University Press, 2005), pp. 111‐112.
2 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the
Charter), Advisory Opinion of 28 May 1948, ICJ Reports 1948, p. 57, Competence of the General
Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1950,
ICJ Reports 1950, p. 4.
3 Conforti, B., The Law and Practice of the United Nations, 3rd edition. (The Hague: Martinus
Nijhoff, 2005), pp. 23‐27.
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169
Charter, would replace the Mandate System.4 One of its objects was, according
to Article 76 (b):
“…to promote the political, economic, social, and educational advancement
of the inhabitants of the trust territories, and their progressive development
towards self‐government or independence as may be appropriate to the par‐
ticular circumstances of each territory and its peoples and the freely expressed
wishes of the peoples concerned, and as may be provided by the terms of each
trusteeship agreement.”
According to Article 77 (1), the Trusteeship System applied to territories ei‐
ther held under mandate or detached from enemy States as a result of the Sec‐
ond World War or placed under the Trusteeship System by those States that
were responsible for their administration. Territories detached from enemy
States as a result of both the World Wars as well as colonial territories and pro‐
tectorates could be included in the Trusteeship System.
The General Assembly was responsible, according to Article 85 (1), for all
functions of the United Nations with regard to trusteeship agreements for all
areas not designated as strategic and another organ, the Trusteeship Council, 5
was established under Chapter XIII of the Charter. Under Article 86 (1), the
Trusteeship Council consisted of both Members administering and not admin‐
istering trust territories so that the total number of members of the Trusteeship
Council was equally divided between them. Each member of the Trusteeship
Council had one vote and decisions were made by a majority vote (Article 89).
With this institutional structure the United Nations would have to face the
decolonization era and it proved to be a successful one. In fact, all Trust Terri‐
tories had attained self‐government or independence by 1994 and the Trustee‐
ship Council suspended operation on 1st November 1994. But the decoloniza‐
tion era would require more than an institutional structure.
3. Self‐Determination of Peoples
Neither is the importance of the right of self‐ determination of peoples
doubted in international law nor is it possible to elaborate on it in this context.
It may well be argued, however, that the evolvement of self‐ determination of
peoples into a right under international law would not have been possible
without the role that the General Assembly held during the decolonization pe‐
riod. During the decolonization era and beyond it, the United Nations has been
instrumental in defining the subject and the content of self‐ determination.
Cheltur Venkatramana, L. N., Analysis of the Principles and System of International Trus‐
teeship in the Charter: A Study of the Origin, Principles and Application in International Law
(Geneva: Imprimeries Populaires 1951).
5 Wilde, R., “Trusteeship Council”, in Weiss, T. G., Daws, S. (eds) The Oxford Handbook on
the United Nations. (Oxford: Oxford University Press, 2007), pp. 149‐159.
4
170
3.1. Self‐Determination in the Charter of the United Nations
The principle of self‐ determination was referred to twice in the Charter. In
the first place, self‐ determination is included in the purposes of the United
Nations. According to Article 1(2):
“The Purposes of the United Nations are: … 2. To develop friendly relations
among nations based on respect for the principle of equal rights and self‐
determination of peoples and to take other appropriate measures to strengthen
universal peace;”
Moreover, self‐ determination was referred to in Chapter IX of the Charter
on International Economic and Social Cooperation. Under Article 55, the UN
undertakes to promote, inter alia, higher standards of living, solutions of inter‐
national economic and social problems and universal respect for human rights,
in order to create the conditions necessary for peaceful and friendly relations
among nations. These peaceful and friendly relations among nations must be
based, again, on respect for the principle of equal rights and self‐determination
of peoples.
Neither Article is of normative character6; in this sense, self‐determination
was not provided for as a binding rule. This was, however, expected. Self‐ de‐
termination originates from the American declaration of Independence (1776)
and the French revolution (1789)7. It was included in President Woodrow Wil‐
sonʹs Fourteen Points and yet excluded from the Covenant of the League of
Nations8. In 1920, the Report of the Commission of Jurists in the Aaland Is‐
lands case, despite upholding the important part that the principle of self‐ de‐
termination played in political thought, held that self‐determination was not a
rule of the Law of Nations9. This remained unchanged in the Charter of the
UN.
3.2. The Role of the General Assembly in the Evolvement of Self‐ Determina‐
tion
Self‐determination was for the first time endorsed as a right in the Declara‐
tion on the Granting of Independence to Colonial Peoples,10 paragraph 2 of
which reads:
“All peoples have the right to self‐determination; by virtue of that right they
freely determine their political status and freely pursue their economic, social
Quane, H., “The United Nations and the Evolving Right to Self‐Determination”, Interna‐
tional & Comparative Law Quarterly 47(3) (1998), pp. 539‐ 547.
7 Summers, J., Peoples and International Law. How Nationalism and Self‐Determination
Shape a Contemporary Law of Nations. (The Hague: Martinus Nijhoff, 2007), pp. 83‐140.
8 Becker Lorca, A., “Petitioning the International: A ‘Pre‐history’ of Self‐determination,”
European Journal of International Law 25(2) (2014), p. 497.
9 The Aaland Islands Question; Report of the Commission of Jurists, L.N.O.J. 1920 Spec.
Suppl No. 3, pp. 5‐6.
10 Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA
Res. 1514 (XV), 14 December 1960.
6
171
and cultural development.”
It was, however, in the Declaration of Principles of International Law con‐
cerning Friendly Relations among States,11 that self‐determination was en‐
dorsed as a principle. It is the ʺprinciple of equal rights and self‐determination
of peoplesʺ, according to which:
“By virtue of the principle of equal rights and self‐determination of peoples
enshrined in the Charter of the United Nations, all peoples have the right
freely to determine, without external interference, their political status and to
pursue their economic, social and cultural development, and every State has
the duty to respect this right in accordance with the provisions of the Charter.”
The wording of the Declaration suggests that self‐determination is a princi‐
ple of international law which includes two rights: a) the right of the peoples to
determine their political status without external interference and, b) the right
of the peoples to pursue their economic, social and cultural development12.
The importance of the role that both the Declaration on the Granting of In‐
dependence to Colonial Peoples and the Declaration of Principles of Interna‐
tional Law concerning Friendly Relations played in the evolvement of the right
of self‐ determination cannot be overestimated. The International Court of Jus‐
tice has confirmed that self‐ determination is a right under international law13.
It has also held that obligations erga omnes arise out of this right14.
3.3. The Subject and the Content of Self‐ Determination
The General Assembly was also instrumental in defining the subject and the
content of the right of self‐determination. With regard to the subject of self‐
determination, it is true that the Declaration on the Granting of Independence
to Colonial Peoples referred to colonial peoples only15. The Declaration of Prin‐
ciples of International Law concerning Friendly Relations confirmed the right
of colonial peoples by asserting the duty of States to cooperate with the UN in
order to bring a speedy end to colonialism but it also added a second category
of peoples16 by asserting that:
Declaration on Principles of International Law concerning Friendly Relations and Co‐
operation among States in accordance with the Charter of the United Nations, UNGA Res. 2625
(XXV), 24 October 1970.
12 Cassesse A., Self‐ Determination of Peoples. A Legal Reappraisal (Cambridge: Cambridge
University Press, 1995), pp. 109‐118.
13 Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,
ICJ Reports 1971, pp. 31‐32, paras. 52‐53; Western Sahara, Advisory Opinion, ICJ Reports 1975,
pp. 31‐33, paras. 54‐59. Military and Paramilitary Activities in and against Nicaragua, Nicaragua
v. USA, Merits, ICJ Reports 1986, p. 14 at pp. 99‐100.
14 East Timor case, Portugal v. Australia, ICJ Reports 1995, p. 90 at p. 102, para. 29, Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion ICJ Reports 2004, p. 136 at p. 172.
15 Quane, ʺThe United Nations ʺ, p. 549.
16 Pomerance, M., Self‐Determination in Law and Practice (The Hague: Martinnus Nijhoff,
1982), p. 14.
11
172
“…subjection of peoples to alien subjugation, domination and exploitation
constitutes a violation of the principle.”
The term ʺpeopleʺ, however, is not easy to define. A modern definition that
echoes the definition of ʺcommunitiesʺ, upheld by the PCIJ in the Greco‐ Bul‐
garian Communities case17, and is considered to be generally accepted focuses
on a list of common features that a group of individuals shares, such as a
common historical tradition, ethnic identity, linguistic unity, religious affinity,
and territorial connection. This group must also have the will to be identified
as a people and it may have institutions of expressing these common features
and this will for identity18.
Ethnic identity, which may include common, language, religion, culture
etc., territorial unity and the will for identity are, therefore, the three distinct
features of the people as subject of the right of self‐ determination. It may also
be added that a priority of the criterion of territorial unity rather than ethnic
identity is evident in the practice of the United Nations during the decoloniza‐
tion era19.
Furthermore, the implementation of the right of self‐determination was
originally defined by the General Assembly in the context of decolonization.
There are four modes of implementing the right of self‐determination, the first
three were stated in Principle VI of the Annex of Resolution 1541of the General
Assembly20 and the fourth was added by the Declaration of Principles of Inter‐
national Law concerning Friendly Relations among States: a) emergence as a
sovereign independent State, b) free association with an independent State, c)
integration with an independent State and d) emergence into any other politi‐
cal status. The Declaration also added that any of these options should be
freely determined by the people.
3.4. Limitations to the Right of Self‐Determination and the ʺSaving Clauseʺ
Undoubtedly, the right of self‐ determination of peoples has brought a revo‐
lution in international law. Nevertheless, it is not limitless, either in theory or
in practice. There are two limitations to the right of self‐determination; the UN
has helped, through its practice, to confirm the first and has introduced the
second.
Interpretation of the Convention between Greece and Bulgaria Respecting Reciprocal Emi‐
gration, signed at Neuilly sur Seine, on November 27th, 1919, (Question of the (ʺCommunitiesʺ),
Advisory Opinion of July 31st, 1930, PCIJ Series B, No. 17, p. 21.
18 International Meeting of Experts on Further Study of the Concept of the Rights of Peoples,
Final Report and Recommendations, UNESCO, Paris, 27–30 November 1989, para. 22, p. 7.
19 Blay, S. K. N., ʺSelf Determination versus Territorial Integrity in Decolonizationʺ, in Kohen,
M. G. (ed.) Territoriality and International Law. (London: Edward Elgar, 2016), Hannum H.,
Autonomy, Sovereignty and Self‐ Determination, 2nd edition. (Philadelphia: University of Penn‐
sylvania Press, 1990), pp. 35‐39.
20 Principles Which Should Guide Members in Determining Whether or not an Obligation Ex‐
ists to Transmit the Information Called for under Article 73 (e) of the Charter, UNGA Res. 1541
of 15 December 1960.
17
173
First, there is the principle uti possidetis juris. Originally applied in Latin
America, during the first decolonization era, this principle provides that the
colonial administrative boundaries must, when independence is achieved, be
transformed into international frontiers. In line with the priority of the crite‐
rion of territorial unity instead of ethnic identity which was evident in the
practice of the United Nations, the principle was also applied in Africa and
Asia during second the decolonization era, was upheld by the International
court of Justice in the Frontier Dispute Case21 and is now generally accepted. In
a different context, it was later applied with regards to the alleged right of se‐
cession of the Serbian minorities in Croatia and Bosnia Herzegovina22.
The result of the application of the principle uti possidetis juris was the
maintenance of colonial borders23. There is, perhaps, a bitter irony in that the
initial identification of self‐determination with decolonization did not prevent
the continuation of colonial divisions. Ethnic groups were divided by borders
that were now international and the new start of the newly‐ independent
States proved to be undermined. The UN, along with the international com‐
munity in general, may rightfully take pride in bringing the colonial era to an
end; it also shares the responsibility for maintaining and legitimizing some of
its consequences.
Secondly, there is the so‐ called ʺsaving clauseʺ. In the Declaration of Princi‐
ples of International Law concerning Friendly Relations among States, it was
stated that:
“Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent States
conducting themselves in compliance with the principle of equal rights and
self‐determination of peoples as described above and thus possessed of a gov‐
ernment representing the whole people belonging to the territory without dis‐
tinction as to race, creed or colour.”
If the government of a State represents the whole people of its territory
without distinction as to race, creed or colour, this State is entitled to the pro‐
tection of its territorial integrity24. The application of self‐determination in such
a case cannot include secession and the emergence of a new independent State.
But what if a government does not represent the whole people of its terri‐
tory without distinction as to race, creed or colour? Does it follow that the ter‐
ritorial integrity of a State is not protected? These questions gave rise to the
Case Concerning the Frontier Dispute, Bourquina Faso v. Mali, 1986 ICJ Reports, p. 554, at
pp. 566‐7.
22 Conference on Yugoslavia Arbitration Commission: Opinions of Questions Arising from
the Dissolution of Yugoslavia (January 11 and July 4, 1992), Opinion No 2, 31 ILM 1488 (1992), p.
1497.
23 Fisch, J., The Right of Self‐determination of Peoples: The Domestication of an Illusion.
(Cambridge: Cambridge University Press, 2015), p. 191.
24 See also Re Reference by the Governor in Council Concerning Certain Questions Relating
to the Secession of Quebec from Canada, Canada, Supreme Court, 20 August 1998, 115 ILR
(1998), p. 585, para. 126.
21
174
debate on remedial secession,25 which cannot be dealt with in this paper. They
also gave rise to the question whether self‐determination was identified with
decolonization to the effect that it would end with it. If secession and the
emergence of new independent States was not included in self‐determination
outside the context of decolonization, what was the content of self‐ determina‐
tion that would survive decolonization?
3.5. The two International Covenants on Human Rights: beyond Decoloniza‐
tion
The two International Covenants on Human Rights were signed in 1966,
six years after the Declaration on the Granting of Independence to Colonial
Peoples and the wording of their common Article 1(1) repeats that of para‐
graph 2 of the Declaration. According to Article 1(1) of both the International
Covenants:
ʺAll peoples have the right of self‐determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social
and cultural development.ʺ 26
Despite the terminological identity, it is generally accepted that the term
ʺpeoplesʺ in common Article 1 of the two International Covenants is applicable
to all peoples. That is to say, it includes peoples of non self‐ governing territo‐
ries as well as peoples of independent States and also compact national groups,
national minorities, etc.27.
Although the International Covenants on Human Rights were signed
during the decolonization of Africa, the issue of the application of the right of
self‐ determination to peoples of independent States is beyond the context of
decolonization. Self‐ determination, however, must have a different content for
different subjects. In this vein, the distinction between the external and the in‐
ternal dimension is helpful. External self‐determination is the right to freedom
from subjugation or colonization by other States while internal self ‐ determi‐
nation refers to politics and economy and even religion and culture28. In case of
the people of an independent State, the internal dimension of self ‐ determina‐
tion corresponds with internal aspects of State sovereignty as it refers to the
free choice of a political, economic, social and cultural system29.
Tomuschat, C., ʺSelf‐Determination in a Post ‐ Colonial World,ʺ in Tomuschat, C. (ed.)
Modern Law of Self‐Determination. (The Hague: Martinus Nijhof, 1993), pp. 1‐20, Sterio, M., The
Right to Self‐ Determination under International Law. ʺSelfistansʺ, Secession and the Rule of the
Great Powers. (London: Routledge, 2013), pp. 60‐6. See also Accordance with International Law
of the Unilateral Declaration of Independence with Respect to Kosovo, Advisory Opinion, ICJ
Reports 2010, p. 403 at pp. 436‐8, paras. 79‐83.
26 International Covenant on Economic, Social and Cultural Rights, New York, 16 December
1966, 999 UNTS 3; International Covenant on Civil and Political Rights, 16 December 1966, 999
UNTS 171. Cassesse, Self‐Determination of Peoples, pp. 52‐62.
27 Annotations on the text of the Draft International Covenants on Human Rights, prepared
by the UN Secretary General, 1 July 1955, UN Doc. A/2929, p. 42.
28 Cassese, Self‐Determination of Peoples, p. 321.
29 Summers J., The Internal and External Aspects of Self‐Determination Reconsidered, in
25
175
4. Recognition of States and the United Nations
4.1. Changing the Role of Recognition
Self‐determination has been a revolution in international law and decoloni‐
zation changed the world map; changes with regard to recognition were more
subtle. Recognition of States under international law is not connected with the
purposes of the United Nations. It is rather the practice of the UN and the in‐
ternational community in general that has changed the role of recognition.
It is generally accepted that the existence of a State as a subject of interna‐
tional law does not depend on recognition by other States. According to the
declaratory theory, recognition is a political act whose effects are declaratory
only. An entity is considered to be a State once it fulfills the criteria of interna‐
tional law. The act of recognition, either by one State or collective, is consid‐
ered to be evidence as to the existence of a new State30.
Another important role that recognition has played is that it signifies the
admission of the new State in the international community. Recognition usu‐
ally precedes bilateral relations and it is a prerequisite for the conclusion of bi‐
lateral treaties. What is more, recognition has traditionally allowed the State to
be part in the ʺfamily of nationsʺ, it has been the step between the existence of a
State and membership in the international community31. Today, however, rec‐
ognition has been replaced in this role by membership in the UN32. Admission
in the UN is the step between the existence of a State and membership in the
international community.
This change came about rather quietly. It is not one of the purposes of the
UN either to decide on the existence of new States or to supplant the interna‐
tional community. According to Article 4 of the Charter, as we have already
seen, membership to the UN is open to States only; that is to say, a State apply‐
ing for membership must already be considered a State. It is rather a conse‐
quence of the importance of the UN and the progress of the international
community towards cooperation that admission in the UN is the step between
the existence of a State and membership in the international community.
French, D. (ed.) Statehood and Self‐Determination. Reconciling Tradition and Modernity in In‐
ternational Law. (Cambridge: Cambridge University Press, 2013). See also Nicaragua case, p.
108, para. 205.
30 Talmon S., “The Constitutive Versus the Declaratory Theory of Recognition: Tertium Non
Datur?” British Yearbook of International Law 75(1) (2004), pp. 101‐181, Crawford J., The Crea‐
tion of States in International Law. 2nd edition. (Oxford: Oxford University Press, 2006), pp. 19‐
26.
31 Craven M., “Statehood, Self‐ Determination and Recognition,” in Evans, M. (ed) Interna‐
tional Law, 4th edition. (Oxford: Oxford University Press, 2014), pp. 240‐241.
32 Chen, T. C., The International Law of Recognition with Special Reference to Practice in
Great Britain and the United States. (New York: Praeger, 1951), p. 222, Dugard, J., Recognition
and the United Nations. (Cambridge: Grotius Publications, 1987), pp. 125‐127.
176
4.2. The Prohibition of Recognition
4.2.1. The Role of the Security Council and of the General Assembly
It may be argued that the prohibition of recognition predates the United Na‐
tions. It originates in the so‐called ʺStimson doctrineʺ, that is to say, the non‐
recognition of Manchukuo, the puppet State created after the Japanese inva‐
sion in and occupation of Chinese Manchuria, in the 1931‐2 crisis33. It was,
however, the decisions of the Security Council and of the General Assembly
that would lead, along with State practice, to the evolvement of the prohibition
of recognition of entities created by a violation of the prohibition of the use of
force, in violation of self‐determination of peoples or of fundamental human
rights.
The decisions of the Security Council, in particular, have been instrumental
to the evolvement of the prohibition of recognition as regards entities created
by a violation of the prohibition of the use of force. In 1983, for example, after
the independence of the Turkish Republic of Northern Cyprus was declared,
the Security Council prohibited the recognition of the new entity and con‐
demned the purported exchange of ambassadors between the TRNC and Tur‐
key34.
Another example is the prohibition of recognition of the annexation of Ku‐
wait to Iraq, after the Iraqi invasion in 199035. With regard to the prohibition of
recognition of entities created in violation of self‐determination, it was again
the Security Council that prohibited the recognition of South Rhodesia, after
the declaration of independence by the Ian Smith regime which represented
the white minority only36.
The role of the General Assembly in this respect should not be underesti‐
mated either. In the first place, the General Assembly stated, in the Declaration
of Principles of International Law concerning Friendly Relations among States,
that territorial acquisitions which result from the threat or use of force must
not be recognized as legal. What is more, the General Assembly played an im‐
portant role with regard to the prohibition of recognition of entities created in
violation of fundamental human rights.
Having already condemned the ʺbantustanʺ program, part of the apartheid
policy of South Africa, the General Assembly called upon all States not to rec‐
ognize them37 and also stated that the creation of independent Transkei was
invalid38. A little later, the Security Council would condemn South Africa for
Lauterpacht H., “Resort to Warʺ and the Interpretation of the Covenant during the Man‐
churian Crisis,” American Journal of International Law 28(1) (1934), pp. 43‐60.
34 Security Council Resolution 541, 18 November 1983, S/RES/541 (1983); Security Council
Resolution 550, 11 May 1984, S/RES/550 (1984).
35 Security Council Resolution 662, 9 August 1990, S/RES/662 (1990).
36 Security Council Resolution 217, 20 November 1965, S/RES/217 (1965).
37 General Assembly Resolution 3411 D, 28 November 1975, A/RES/3411 D (XXX).
38 General Assembly Resolution 31/6 A, 26 October 1976, A/RES/31/6/A (1976).
33
177
attempting to coerce Lesotho to recognize Transkei39.
Under Article 25 of the Charter, the members of the UN have agreed to
carry out the decisions of the Security Council and States have indeed carried
out such decisions of the Security Council. States have also acted in accordance
with these resolutions of the General Assembly, although they are only rec‐
ommendatory, so that the prohibition of recognition of entities created by a
violation of the prohibition of the use of force, in violation of self ‐ determina‐
tion of peoples or of fundamental human rights is now generally accepted.
4.2.2. The Role of the International Law Commission and of the International Court of
Justice
Member States are obliged, under Article 25 of the Charter, to carry out the
decisions of the Security Council but the Security Council cannot always adopt
a decision. What if the adoption of a decision prohibiting recognition is, for ex‐
ample, prevented by the negative vote of one permanent member of the Coun‐
cil? Does it follow that recognition of an entity created by a violation of the
prohibition of the use of force, in violation of self‐determination of peoples or
of fundamental human rights is lawful under international law?
In this vein, the International Law Commission and International Court of
Justice have played an important role in defining both the status and the con‐
tent of the prohibition of recognition under international law. Under Article 41
(2) of the Articles on Responsibility of States of the ILC:40
“No State shall recognize as lawful a situation created by a serious breach
within the meaning of article 40, nor render aid or assistance in maintaining
that situation.”
A “serious breach within the meaning of Article 40” is a gross or systematic
failure to fulfill an obligation arising under a peremptory norm of general in‐
ternational law. In this sense, the prohibition of recognition is a consequence of
the violation of international law. Article 41 (2) includes both the formal recog‐
nition and acts implying such recognition; its scope of application, however, is
broader than the prohibition of recognition in that it aims to prevent the main‐
tenance of the situation41.
The ICJ addressed the issue of the obligations arising out of the prohibition
of recognition in the Namibia Advisory Opinion42. The Court found that, since
the continued presence of South Africa in Namibia was illegal, States were
obliged to recognize this illegality and the invalidity of the acts of South Africa
concerning Namibia, as well as to refrain from any acts that would imply rec‐
Security Council Resolution 402, 22 December 1976, S/RES/402 (1976).
International Law Commission, 2001, Articles on Responsibility of States for Internation‐
ally Wrongful Acts, 53 UN GAOR Supp. (No. 10), p. 43, UN Doc. A/56/83 (2001).
41 Commentaries to the draft articles on Responsibility of States for Internationally Wrongful
Acts, 53 UN GAOR Supp. (No. 10), p. 43, UN Doc. A/56/83 (2001), pp. 114‐5.
42 Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,
ICJ Reports, 1971, p. 16, at paras. 117‐127.
39
40
178
ognition or that would aid the presence of South Africa. States were under
three obligations: (a). not to conclude or apply bilateral treaties with South Af‐
rica concerning Namibia, (b) not to begin or maintain diplomatic or consular
relations with South Africa concerning Namibia and (c) not to enter into eco‐
nomic or other relationship with South Africa concerning Namibia that would
aid the authority of South Africa over Namibia.
With a view to protect the people of Namibia from losing the advantages
arising out of international cooperation, the invalidity of official acts of the
government of South Africa concerning Namibia would not be extended to
acts such as the registration of births and marriages; multilateral treaties such
as those of a humanitarian character could still be applicable.
More than three decades later, in the Wall Opinion,43 the Court also held
that all States were obliged not to recognize the illegal situation arising out of
the construction of the wall by Israel in the Occupied Palestinian Territory and
not to render any assistance in maintaining this situation thus upholding its
reasoning in the Namibia Advisory Opinion.
5. Conclusions
It is, perhaps, too early for conclusions. Both the United Nations and inter‐
national law on the creation of States are, in a sense, under constant evolution.
Any conclusion on the contribution of the Organization to any changes in the
international law on the creation of States must, therefore, be only provisional.
Nevertheless, the importance of the role that the General Assembly has
played in the evolvement of the right of self‐determination during the decolo‐
nization period cannot be overestimated. The subject and the content of the
right of self‐determination as well as its limitations have been defined on the
basis of the Declaration on the Granting of Independence to Colonial Peoples
and the Declaration of Principles of International Law concerning Friendly Re‐
lations among States. Unfortunately, the application of the principle uti pos‐
sidetis juris during the decolonization has led to the maintenance of colonial
borders and the prolongation of some of the consequences of colonialism.
With regard to the recognition of States, it must be stressed that it was not
one of the purposes of the United Nations that recognition as the step between
the existence of a State and membership in the international community would
be replaced by admission and membership in the UN. It is a consequence of
the growing importance of the UN as well as a result of the practice of the UN
and the international community in general that this role of recognition has
changed.
On the other hand, the evolvement of the prohibition of recognition of enti‐
ties created by a violation of the prohibition of the use of force, in violation of
self‐determination of peoples or of fundamental human rights is owed to the
decisions of the Security Council and of the General Assembly, along with
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, ICJ Reports 2004, p. 35, at para. 159.
43
179
State practice. The status and the content of the prohibition of recognition un‐
der international law have been, to a great extent, defined by the International
Law Commission and International Court of Justice.
Although the decolonization period as well as the evolvement of the right of
self‐determination were, in a sense, initiated by the Declaration on the Grant‐
ing of Independence to Colonial Peoples, it is true that changes with regard to
the recognition of States have certainly not been intended. This is, however,
only indicative of the growing importance of the United Nations in the interna‐
tional community.
United Nations and the European Union
Donatos Papagiannis
Professor, Faculty of Public Administration, Panteion University
The Iraq war had to take place in early 2003 to launch and engage in more
active action to improve relations between the two organizations. The UN and
the EU. Two organizations with a completely different physiognomy, which in
their basic pursuit, i.e. peacekeeping and promotion of co‐operation, are totally
identical. Thus, on 10 September 2003, the Commission tabled a text on a new
strategy for EU‐UN relations: ʺThe EU and the United Nations: the choice of
multilateralismʺ. Central to the text was the assumption that a strengthening of
the UN as a key pillar of the multilateral security system is required. This view
was confirmed by both the European Council and the European Parliament,
which in a relevant resolution called for: Strengthening the role of the EU in an
enhanced UN.
Back to 2004, we have not yet reached the Treaty of Lisbon. From 1974 to
2004, the European Community had acquired observer status at the UN Gen‐
eral Assembly by a decision of the UN General Assembly, a practice that ap‐
plied both to non‐UN members and to intergovernmental organizations. At
their request and after the UN membersʹ catalog had been exhausted, they also
spoke to representatives of those non‐member states, as well as to representa‐
tives of intergovernmental organizations.
That is, observers were given the right to participate in the General Assem‐
bly meetings, but the right to speak only if they were called upon by the Presi‐
dent‐in‐Office and after the list of Member State speakers had been exhausted.
There was also a right to participate in the various working groups as well as a
right of access to the official texts of the organization. The right to submit pro‐
posals was not recognized by the observers.
In these activities, the European Union, under the umbrella of the pillar sys‐
tem, i.e. the supranational European Community and the Intergovernmental
CFSP, participated in a dual representation .The European Commission par‐
ticipated in the proceedings of the General Assembly with the status of the ob‐
server on matters falling within its remit. However, the Union, in the field of
foreign policy, was also represented by the Member State holding the six‐
month presidency of the Council of Ministers. The Member State, which holds
the six‐month presidency of the Council, represents primarily the Union in the
field of CFSP.
This duality had been accepted by the UN, but it was self‐evident that while
the role of the Commission was limited to the role of observer, the Member
State, which holds the six‐month presidency of the Council, was a member of
the UN and obviously enjoyed more advantages. The Member State has been
given the opportunity to highlight both its national positions and the positions
of the Union. This particular duality in the representation of the Union pro‐
vided another advantage. The Member State of the Union, which represented
it, was speaking with priority over the other Member States of the UN that did
181
not represent other organizations.
A Union‐friendly representation at the United Nations General Assembly
was at the same time a major drawback. The other UN member states have of‐
ten been unable to understand ‘’who is speaking’’, the State representing the
Union or the Union itself. Should the Union be represented on the basis of its
internal rules before the UN through the Commission as an observer or
through the Member State that holds the six‐month presidency?
This arrangement could not be judged satisfactory by the Union. The draw‐
backs had to be removed urgently. The effort finally led to the Treaty of Lis‐
bon, which laid the foundations for a new vision of the Unionʹs external rela‐
tions. But what was the great weakness? The answer is obviously the ineffi‐
ciency and the famous visibility of the Union. The goal, the great dream was
and remains the expression of the Union outwardly with one voice, one vote.
Expression with one voice outwardly strengthens the Union and makes it more
effective. The experience was traumatic. In the Iraqi crisis of 2003, to stay only
in the bigger events, half of the Union members were in favor of the American
view of taking on military operations, while the other half were in favor of tak‐
ing diplomatic action to solve the problem. Another example: In the vote on
the accession of Palestine to UNESCO, 11 Member States of the Union were in
favor, 11 abstained and 5 voted against.
The examples are characteristic and the results disappointing, especially
when we are talking about a supranational organization with strong ties of
solidarity and mutual trust. This negative state attempted to correct the Treaty
of Lisbon by adopting the following arrangements: 1) the explicit recognition
of legal personality in the Union so that it appears outwardly as a whole and as
a single act, 2) the abolition of the pillar system, but without transferring the
CFSP to the former first pillar supranational logic. Foreign, security and de‐
fense policy remain in the inter‐governmental sense, so that a major role is rec‐
ognized in the Member States, as in the former Maastricht Treaty and 3) the in‐
ternational representation of the Union to the outside is now radically chang‐
ing.
Now the Unionʹs representation on matters not only of the CFSP but also of
general external relations is now entrusted to the High Representative of the
Union for a CFSP issue, but he has a double hat, a double hut, since he is both
chairman of the Foreign Affairs Council Vice‐President of the Commission on
matters relating to the Unionʹs external actions.
The High Representative on the Unionʹs Outward Relationships represents
the Union on CFSP issues, conducts political dialogue with third parties on be‐
half of the Union and expresses the Unionʹs position in international organiza‐
tions and international conferences. For the performance of his duties, the
High Representative is assisted in his work by the European External Action
Service, which is ultimately the Unionʹs diplomatic corps.
However, the problem of UNION representation is not so simple, because
the right to representation on a CFSP issue is also recognized by the President
of the European Council, since he is entrusted by virtue of Art. 15 TEU:
‘’The President of the European Council shall, at his level and in that capac‐
182
ity, ensure the external representation of the Union on issues concerning its
common foreign and security policy, without prejudice to the powers of the
High Representative of the Union for Foreign Affairs and Security Policy’’.
The provision is problematic as it may lead to confusion or in disagree‐
ments. However, it is accepted that the practice up to now confirms that the
Presidents of the European Council right to represent the E.U is limited to its
ʺlevelʺ, i.e. in meetings with other Heads of State or Government. For example,
although the representation of the Union in the UN General Assembly and on
the basis of EU provisions belongs to the High Representative, however, at the
72rd GA of the Organization the Union was represented by the President of
the European Council, Mr. Donald Tusk, who spoke before of the GA and out‐
lined the priorities of the Union.
Based on the delegation of representation to these persons, 34 TEU requires
Member States to coordinate their action within international organizations
and international conferences, as well as the obligation to support in this con‐
text the positions of the Union. The organization of this coordination is en‐
trusted to the High Representative. At the same time, the Member States of the
Union represented in international organizations or international conferences
where not all the Member States of the Union are members must keep the non‐
participating Member States and the High Representative informed.
Especially with regard to the UN and on the basis of Art.220 TFEU, the Un‐
ion shall establish any appropriate form of cooperation with the United Na‐
tions institutions and their specialized agencies.
With these more armed arrangements, the Union attempted almost imme‐
diately after the entry into force of the Treaty of Lisbon to negotiate a new rep‐
resentation and participation regime in the UN General Assembly. But the Un‐
ionʹs request for full membership in the General Assembly contravenes the UN
Charter, which explicitly states that only states are admitted. Full membership
only by changing the Statute could be achieved. Faced with this weakness, the
Union has claimed to ‘’impose’’ on GC its plan and its views on upgrading its
representation in the GA of the organization. Thus, the draft submitted by the
then Belgian Presidency in 2010 did not reach the required majority to be ac‐
cepted. UN member states such as Australia and Canada that are traditionally
friendly to the Union abstained while many small UN member states feared
that a strengthening of the role of various international organizations before
the UN General Assembly would weaken their own role.
This failure was followed by a second attempt, with a revised version of the
original text, which was finally adopted by 180 UN member states and which
is mainly oriented towards the position held in the General Assembly by the
Holy See and Palestine.
Decision 65/276, despite the backlog of the original draft, provides for a
clear reinforcement of the Unionʹs position in the work of the General Assem‐
bly, its committees and working groups, as well as the international confer‐
ences convened under the aegis of the UN General Assembly.
The Decision provides for the following rights for the representatives of the
Union: 1) Right to Speech. This means that the representative of the Union is
183
among the representatives of important groups and is included in the relevant
list of speakers who speak before the Member States that are members of the
group, 2) It can take part in the general debate, right that is recognized only in
the Holy See and in Palestine, 3) The positions of the representatives of the Un‐
ion shall be recorded as official documents of the General Assembly and 4)
Representatives of the Union shall have the right to submit oral amendments,
as well as amendments to other proposals. However, no vote on these propos‐
als can be made. This can only be done at the request of a Member State.
However, the decision, in order to avoid any misinterpretation, stresses that
no right to vote, no right to submit draft resolutions or decisions, as well as any
possibility of submitting applications for the UNʹs seats is recognized in the
Union.
While in the General Assembly the Union holds an institutional position
with a specific status, no institutional arrangements are foreseen in the Security
Council as to its participation, nor is any particular attitude of the Union ac‐
knowledged by any particular expectation.
Nonetheless, the Unionʹs position on the Security Council is substantially
stronger since it has two permanent members (the United Kingdom and
France), while non‐permanent members are now partnered with Italy, a num‐
ber of which, of course, increases, as potentially non‐permanent members can
be elected up to 4 members from the Union. This is of course a particularly
privileged position, a position which will be significantly weakened after the
United Kingdom left the Union. It is obvious that the withdrawal of the United
Kingdom is a major loss for the Union with regard to external polarity issues.
The only institutional possibility for the Union to participate in the Security
Council is based on the Art. 39 of the Security Councilʹs Rules of Procedure,
which provides that, for specific issues where the Council considers that it
needs the opinion of an actor on the international scene or, where appropriate,
a critical contribution to the implementation of its decisions, the Council may
invite that factor to it .It is only in this unofficial and non‐institutional way that
the Union can appear as a whole before the Security Council.
In any case, both of its members, who are both permanent members of the
Security Council and its elected non‐permanent members, can also express the
Unionʹs overall position on the issues under discussion. However, in the case
of the Security Council, the State acts as a member of the Council and not as a
representative of the Union.
As a result, the possibility for the Union to participate in the Security Coun‐
cil as a member only by changing the UN Charter can be achieved. Faced with
this reality, the Treaty of Lisbon has tried to achieve the best by entrusting its
Member States which have permanent or non‐permanent seats in the Security
Council with a specific task.
Based on par. 2 s. (2) of Article 34 TFEU, all the Member States of the Union
which are members of the United Nations Security Council shall consult each
other and keep the other Member States and the High Representative fully in‐
formed. Those Member States which are members of the Security Council must
defend the positions and interests of the Union in the performance of their du‐
184
ties. In the event that the Union has established a position on a particular sub‐
ject of the Security Council agenda, the Member States that are members of it
will ask for the High Representative to be invited to present the Unionʹs posi‐
tion.
The world urgently needs a strong UN in a tense international society. Sup‐
port for all its strength must be all those international actors inspired by the
same principles and values. The European Union is definitely such a player.
The EU (and the Member States) account for about 55% of international official
development aid. EU Member States contribute around 37% of the UN normal
budget and about 50% of all UN contributions to UN funds and programs. In
addition, both the Member States and the EU provide important voluntary
contribution.
Cooperation is bound to be of mutual benefit. Nevertheless, the European
Union has a crucial peculiarity. Although it is one of the most powerful eco‐
nomic actors in the world, its international presence in the critical political
problems of the international community is not in line with its economic size
and its influence remains weak. It is not just those who characterize the Union
as an ‘’economic giant and a political dwarf’’. All recent international events
confirm its low presence.
Despite the ambitious efforts made through the Lisbon Treaty process, the
positive institutional arrangements, the issue of the emergence of the Union on
the international scene with one voice continues to be a demand. It goes with‐
out saying that the Unionʹs priorities for CFSP and defense, to have even the
slightest prospect of success, require a single voice from the Union so that it
can be heard in a clearer and more convincing way. Something like that was
done by Antistheneʹs myth. At a gathering of animals the word was taken at
one point by the lions and addressed to the hares: “Your hares, your argu‐
ments and your views are reasonable, but to impose them you need nails like
ours.”
La portée du Règlement 2016/679 a
la « fonction juridictionnelle » des juridictions
Konstantinos Kouroupis
Assistant Professor, Faculty of Law, Frederick University, Cyprus
1. Introduction
Le 25 Mai 2018 constitue une année charnière pour le domaine des données
à caractère personnel grâce à l’adoption du Règlement Général sur la Protec‐
tion des Données (Règlement 2016/679), connu sous l’abréviation RGPD. La
nouvelle législation européenne constitue un cadre réglementaire complète si‐
tué dans le domaine juridique des données à caractère personnel.
Elle vise non seulement à la protection des personnes physiques à lʹégard
du traitement des données à caractère personnel mais aussi à la libre circula‐
tion de ces données. En même temps, elle abroge la Directive 95/46 qui consti‐
tue l’ancien système réglementaire et s’adapte aux exigences de l’époque mo‐
derne. Cependant, la nouvelle législation européenne ne forme pas une réalité
juridique radicalement nouvelle. En effet, les principes fondamentaux du trai‐
tement des données à caractère personnel énoncés dans la Directive 95/46, tels
que le principe de finalité, de sécurité et de confidentialité et d’autres, restent
en vigueur.
Le nouveau Règlement maintient les dispositions de lʹancien cadre législatif,
les modernise1, introduit de nouvelles institutions telles que le délégué à la
protection des données2, renforce les droits des personnes concernées3, élargit
le cercle des personnes responsables du traitement des données à caractère
personnel4, impose des sanctions strictes à lʹencontre de données personnelles5,
A côté des principes de traitement de données déjà mis en place, sʹajoutent le principe de
responsabilité, celui de minimisation des données qui était connu, d’après la Directive 95/46,
sous l’appellation «le principe de proportionnalité». En même temps, une disposition spéciale
est prévue pour le consentement, qui est considéré en tant qu’une condition préalable fonda‐
mentale et nécessaire au traitement licite des données.
2 D’après l’article 37 du Règlement le délégué à la protection des données constitue la per‐
sonne appropriée qui contrôle la conformité de toute personne (morale ou physique) qui traite
des données à caractère personnel. En ce qui concerne cette nouveauté voir plus sur Sotiropou‐
los, V., Le délégué à la protection des données, (Athènes ‐ Thessalonique: Editions Sakkoula,
2018).
3 Par exemple, l’article 20 du Règlement introduit le droit à la portabilité des données selon le
quelles personnes concernées ont le droit de recevoir les données à caractère personnel les con‐
cernant quʹelles ont fournies à un responsable du traitement, dans un format structuré, couram‐
ment utilisé et lisible par machine, et ont le droit de transmettre ces données à un autre respon‐
sable du traitement sans que le responsable du traitement auquel les données à caractère per‐
sonnel ont été communiquées y fasse obstacle, lorsque certaines conditions sont remplies.
4 Outre les contrôleurs, qui assument traditionnellement une responsabilité essentielle dans
la légitimité du traitement des données, une gravité particulière et égale pèse également sur les
processeurs. Voir analytique ment les articles 28 et suiv. du Règlement.
5 Suivant l’article 83§5 du Règlement les violations de certaines dispositions font l’objet
1
186
supprime les obligations passées6 et lance de nouvelles procédures, telles que
la réalisation dʹune analyse dʹ impact relative à la protection des données7. Par
conséquent, il serait plus approprié de Règlement 2016/679 adopte, dʹune part,
l’esprit de lʹacquis législatif sur le traitement des données à caractère person‐
nelle, dʹautre part, introduit des innovations répondant à la dimension dyna‐
mique du droit.
Ce qui attire une attention particulière, parmi toutes les nouveautés du Rè‐
glement, est son champ d’application matériel lorsqu’on peut identifier des
ambiguïtés et des lacunes juridiques. En particulier, la question se pose de
lʹapplication de la loi aux tribunaux et plus spécifiquement aux juridictions
dans l’exercice de leur fonction juridictionnelle. Bien que les dispositions perti‐
nentes du règlement général sur la protection des données soient concrètes8,
ses divers points et dʹautres législations spécifiques sur la protection de la vie
privée9 ʺsont en conflitʺ ou créent des contradictions sur cette question.
2. L’impact de RGPD à la pratique judiciaire
2.1. Les arguments pour l’application de RGDP aux tribunaux
L’application de la nouvelle législation européenne dans l’espace judiciaire
est justifiée, d’un premier côté, par une série de ses dispositions. Tout d’abord,
l’article 2 du Règlement est concret en ce qui concerne le champ d’application
matériel et nous donne une réponse claire et nette à la question en cause.
Comme c’est écrit:
« 1. Le présent règlement sʹapplique au traitement de données à caractère
personnel, automatisé en tout ou en partie,ainsi quʹau traitement non automa‐
tisé de données à caractère personnel contenues ou appelées à figurer dans un
fichier. 2. Le présent règlement ne sʹapplique pas au traitement de données à
caractère personnel effectué:
a) dans le cadre dʹune activité qui ne relève pas du champ dʹapplication du
droit de lʹUnion; b) par les États membres dans le cadre dʹactivités qui relèvent
du champ dʹapplication du chapitre 2 du titre V du traité sur lʹUnion euro‐
péenne; c) par une personne physique dans le cadre dʹune activité strictement
personnelle ou domestique; d) par les autorités compétentes à des fins de pré‐
vention et de détection des infractions pénales, dʹenquêtes et de pour suites en
la matière ou dʹexécution de sanctions pénales, y compris la protection contre
d’amendes administratives pouvant sʹélever jusquʹà 20 000 000 EUR ou, dans le cas dʹune entre‐
prise, jusquʹà 4% du chiffre dʹaffaires annuel mondial total de lʹexercice précédent, le montant le
plus élevé étant retenu certaines conditions.
6 Désormais, le responsable du traitement ou le sous‐traitant et, le cas échéant, leur représen‐
tant mettent le registre à la disposition de lʹautorité de contrôle sur demande, contrairement à
l’ancien cadre réglementaire qui rendait obligatoire sa notification.
7 Il s’agit de l’obligation de responsable de traitement d’effectuer une analyse de lʹimpact des
opérations de traitement envisagées sur la protection des données à caractère personnel, lors‐
qu’un type de traitement est susceptible d’engendrer un risque élevé pour les droits et libertés
des personnes physiques. Voir plus les articles 35suiv. du Règlement.
8 Voir article 2 du Règlement.
9 Voir Chapitre I, Partie II.
187
des menaces pour la sécurité publique et la prévention de telles menaces. 3. Le
règlement (CE) no 45/2001 sʹapplique au traitement des données à caractère
personnel par les institutions, organes et organismes de lʹUnion. Le règlement
(CE) no 45/2001 et les autres actes juridiques de lʹUnion applicables audit trai‐
tement des données à caractère personnel sont adaptés aux principes et aux rè‐
gles du présent règlement conformément à lʹarticle 98. 4. Le présent règlement
sʹapplique sans préjudice de la directive 2000/31/CE, et notamment de ses arti‐
cles 12 à 15 relatifs à la responsabilité des prestataires de services intermédiai‐
res. »
Si on lit attentivement l’article on ne trouve aucune disposition d’exclusion
l’application du Règlement aux tribunaux. Les cas d’exclusion étant stricte‐
ment énumérés, il est immédiatement conclu que l’article 2 est exhaustif et doit
être interprété de manière restrictive. De plus, l’article 9 relatif au traitement
portant sur des catégories particulières de données à caractère personnel, pré‐
voit que leur traitement est licite lorsqu’il est nécessaire à la constatation, à
lʹexercice ou à la défense dʹun droit en justice ou chaque fois que des juridic‐
tions agissent dans le cadre de leur fonction juridictionnelle10, contrairement à
la règle prévue dans le premier paragraphe de l’article qui interdit leur traite‐
ment.
Outre les dispositions du règlement, on peut obtenir des conclusions et des
indications utiles grâce à la méthodologie de lʹinterprétation de terminologies
juridiques. Lʹaccent est mis en particulier sur la définition et lʹanalyse de la no‐
tion de « fonction juridictionnelle » des tribunaux, qui n’est pas citée, comme
c’est déjà dit, à l’article 2 du Règlement.
Tout d’abord, on devrait souligner que le contenu de la notion est assez
large. Elle comprend tous les stades du dépôt d’un procès jusqu’au jugement
final. C’est bien noté que la fonction juridictionnelle sʹétend également à la spé‐
cification des concepts juridiques vagues contenus dans toutes les règles de
droit applicables, servant finalement à lʹindépendance du pouvoir judiciaire.
Le terme « concepts juridiques vagues » désigne tous les processus mis en
œuvre par les juges pour interpréter et résoudre une affaire, ce qui exclut lʹuti‐
lisation de mesures subjectives telles que des codes d’éthique personnels, éva‐
luations sociales ou politiques11.
En outre, lʹun des principes fondamentaux de lʹaction administrative est le
principe de transparence, qui comprend la publication des arrêts. En particu‐
lier, au niveau national, la transparence et la publicité sont des composantes
essentielles du principe démocratique et contribuent à améliorer la bonne ad‐
ministration12. En particulier, au niveau du tribunal, il est soutenu que tous les
Article 9f du Règlement.
En ce concerne la définition de terme «fonction juridictionnelle» des tribunaux, voir plus
sur Beis, K., La dialectique du Droit de Procédure III. (Athènes ‐ Komotini : Editions Ant. N. Sak‐
koulas, 1999).
12 Dagtoglou, D. P., Droit Administratif Général, 5ème édition. (Athènes ‐ Thessaloniki: Edi‐
tions Sakkoula A.E., 2004), Spiliotopoulos, E., Manuel de Droit Administratif, vol. I et III. (Athè‐
nes: Editions Nomiki Vivliothiki, 2011), Xrisanthakis, Ch., Suggestions de Droit Administratif.
(Athènes: Editions Nomiki Vivliothiki, 2015).
10
11
188
arrêts devraient être accessibles au public13.
Toutefois, la publication des arrêts est soumise au respect des données per‐
sonnelles et aux garanties spécifiques pour la protection de la personnalité. En
particulier, dans plusieurs pays de l’UE, tels que la Belgique, la Grèce, la Chy‐
pre, le Danemark et d’autres, il est légalement dicté l’anonymisation des déci‐
sions de justice, soit en totalité soit en partie, afin de protéger l’identité des par‐
ties ou de traiter attentivement d’affaires de mineurs14. Il convient également
de noter que dans certains pays, il est explicitement indiqué que les tribunaux,
lorsquʹils traitent des données à caractère personnel, doivent se conformer aux
exigences du Règlement15.
Il résulte de lʹanalyse qui précède que la pratique judiciaire est directement
ou indirectement liée au traitement de données à caractère personnel et est af‐
fectée par les dispositions du règlement général sur la protection des données.
Le fondement législatif de cette constatation repose à la fois sur les mêmes dis‐
positions du règlement et sur les lois et pratiques des États membres de lʹUE.
3. Les arguments contre l’application de RGDP dans l’espace judiciaire
Contrairement à ce qui a été dit et analysé dans la première partie, on peut
noter certains arguments qui excluent l’application du règlement général sur la
protection des données aux tribunaux, ce qui provoque une opposition claire.
Premièrement, plusieurs dispositions pourraient conduire à une telle conclu‐
sion. Lʹarticle 37§1a stipule explicitement que le délégué à la protection des
données nʹest pas désigné par les juridictions agissant dans lʹexercice de leur
fonction juridictionnelle.
Jordan, R. V., « Accès à la Jurisprudence : le TF Impose la Transparence», article publié à la
revue électronique du journal « Pladoyer », mis à jour le 25 Septembre 2017, sur le site
https://www.plaidoyer.ch/article/f/acces‐a‐la‐jurisprudence‐le‐tf‐impose‐la‐transparence ».
14 Concernant la publication des décisions de justice et leur anonymisation voir Vlachopou‐
los, S., La Transparence de l’Action Publique et la Protection des Données à Caractère Personnel.
(Athènes ‐ Komotini: Editions Ant. N. Sakkoulas, 2007), Christophides, G., ‘L’impact de RGDP
dans l’espace judiciaire’, article publié sur le site www.sigmalive.com, mis à jour le 18.12.2018
sur le site http://www.sigmalive.com/news/opinions_sigmalive/545510/i‐epidrasi‐genikou‐kano
nismou‐pr‐dedomenon‐sti‐dikki‐praktiki ainsi que l’article de Mitletton, A. X., ‘La publication
des décisions de justice sur internet et les données à caractère personnel’, publié sur le site
www.psychonomika.info, mis à jour le 10 Juin 2018, accessible sur le site https://psychonomika
.info/2018/06/10/%CE%B4%CE%B7%CE%BC%CE%BF%CF%83%CE%B9%CE%BF%CF%80%CE
%BF%CE%AF%CE%B7%CF%83%CE%B7‐%CF%84%CF%89%CE%BD‐%CE%B4%CE%B9%CE%
BA%CE%B1%CF%83%CF%84%CE%B9%CE%BA%CF%8E%CE%BD‐%CE%B1%CF%80%CE%
BF%CF%86%CE%AC%CF%83/. Voir aussi Padova, Y., «Analysis : France’s GDPR implementa‐
tion law», article publié sur le site www.iapp.org, mis à jour le 1er Août 2018, accessible sur le
site https://iapp.org/news/a/analysis‐frances‐gdpr‐implementation‐law/ et les recommandations
de l’Autorité Nationale de Grèce pour la protection des données à caractère personnel, num.
2/2006 et 1/2010.
15 Par exemple, les législations nationales de France, Grande Bretagne et d’Ireland prévoient
explicitement que les autorités judiciaires au traitement des données à caractère personnel doi‐
vent obéir aux exigences du Règlement 2016/679. Voir LOI n° 2018‐493 du 20 juin 2018 relative à
la protection des données personnelles (France) et Data Protection Act 2018 (Grande Bretagne et
Ireland).
13
189
De plus, le paragraphe 3 de l’article 55 du Règlement prévoit de manière
encore plus décisive que « les autorités de contrôle ne sont pas compétentes
pour contrôler les opérations de traitement effectuées par les juridictions dans
lʹexercice de leur fonction juridictionnelle ». Cette conclusion est également
dictée par le considérant 20 du Règlement, en vue de garantir lʹindépendance
des officiers de justice16. Ce considérant réaffirme le principe selon lequel
l’adoption des décisions de justice relève de la compétence judiciaire. Enfin, on
devrait ajouter, à côté du Règlement 2016/679, l’adoption de la directive
2016/68017, qui sʹapplique plutôt au domaine pénal et qui est en vigueur depuis
le 25 Mai 2018.
4. Vers une réponse nette. L’exemple de pratique nationale.
De tout ce qui précède, elle résulte la question si les dispositions du Règle‐
ment sur la protection des données à caractère personnel effecte la fonction ju‐
ridictionnelle des juridictions. Les contradictions qui ont été créées sont évi‐
dentes, tandis que les arguments des deux côtés reposent sur de bonnes bases.
Dans le but de trouver une réponse claire à la question, une pratique nationale
indicative peut être fournie. En particulier, il convient de présenter une affaire
tirée de la pratique judiciaire grecque, d’où on pourrait tirer des conclusions
utiles. En effet, en Grèce, a été créée une association à but non lucratif qui vise
à soutenir financièrement les avocats de province en leur accordant une aide
financière. Tous les avocats ongle droit de participerait, en parallèle, de démis‐
sionner, s’ils le souhaitent.
Lʹassociation retourne, en une seule demande, contre un large nombre
d’avocats (supérieur à cent) qui, après avoir été résigné entant que membres à
la suite dʹune demande recevable, nʹont pas remboursé leurs dettes. En une
seule demande, le demandeur (l’association) se tourne contre un grand nom‐
bre de défendeurs (le nombre de défendeurs est supérieur à cent), en deman‐
dant à tous les défendeurs de payer leurs dettes qui se diffèrent. Dans la même
demande, qu’ire groupe tous les défendeurs, sont fournies les informations
suivantes par rapport à chaque défendeur:
‐ le nom et le prénom ainsi que le nom du père
‐ le montant exact de la dette de chaque défendeur envers le demandeur
‐ la période pendant laquelle la dette a été contractée
‐ le numéro de registre du défendeur dans les archives du demandeur
Comme c’est cité au considérant 20 du Règlement la compétence des autorités de contrôle
ne devrait pas sʹétendre au traitement de données à caractère personnel effectué par les juridic‐
tions dans lʹexercice de leur fonction juridictionnelle, afin de préserver lʹindépendance du pou‐
voir judiciaire dans lʹaccomplissement de ses missions judiciaires, y compris lorsquʹil prend des
décisions.
17 Directive (UE) 2016/680 du Parlement européen et du Conseil du 27 avril 2016 relative à la
protection des personnes physiques à lʹégard du traitement des données à caractère personnel
par les autorités compétentes à des fins de prévention et de détection des infractions pénales,
dʹenquêtes et de poursuites en la matière ou dʹexécution de sanctions pénales, et à la libre circu‐
lation de ces données, et abrogeant la décision ‐ cadre 2008/977/JAI du Conseil.
16
190
‐ les numéros des demandes enregistrées de chaque défendeur envers le
demandeur
‐ les numéros des documents enregistrés envoyés par le demandeur à cha‐
que défendeur
Par conséquent, chaque défendeur prend connaissance de toutes les infor‐
mations susmentionnées pour tous les autres défendeurs. La question qui est
légitimement posée est de savoir sʹil y a violation de données à caractère per‐
sonnel. La réponse est certainement positive et repose sur la réalité objective
quʹil existe une base juridique et factuelle différente pour chaque procès.
Par exemple, la date dʹenregistrement de chaque avocat à l’association dif‐
fère ainsi que des éléments factuels tels que la fiscalité, la situation financière
de lʹindividu, qui nécessitent un traitement séparé. Par conséquent, étant don‐
né que la règle générale de la procédure civile interdit une déposition cumula‐
tive des plaintes qui se reposent sur une base différente, le comportement de
lʹassociation est incompatible avec le droit des données personnelles lorsqu’elle
notifie les données personnelles des avocats sans leur consentement, en violant
les articles 6 et 7 du Règlement, relatifs à la licéité du traitement et aux condi‐
tions applicables au consentement.
Étant donné que la fonction juridictionnelle des tribunaux comprend les
étapes allant du dépôt d’une plainte au jugement final, il apparaît que, dans le
cas d’une contestation judiciaire de la pratique en cause, l’autorité judiciaire va
l’accepter.
5. Conclusions
Lʹanalyse approfondie ci‐dessus montre la contradiction qui existe entre les
dispositions du Règlement de procédure et son impact sur les activités des tri‐
bunaux. Malgré la confusion et la lacune législative, la pondération des argu‐
ments présentés peut conduire à une réponse nette et solide.
En particulier, l’opinion prédominante favorise l’application du Règlement
Général sur la Protection des Données dans la pratique judiciaire. Le fait que
lʹarticle consacré au champ dʹapplication matériel de la législation européenne
ne prévoie aucune exception pour les tribunaux revêt une importance remar‐
quable.
En ce qui concerne la définition de terme «fonction juridictionnelle» des ju‐
diciaires, malgré lʹabsence de règle uniforme, ses limites sont vagues et indis‐
tinctes. Cependant, ils ont cité plusieurs éléments qui reflètent son contenu. Au
cas où lʹapplication de la nouvelle législation européenne dans la pratique ju‐
diciaire était exclue, cela conduirait très probablement aux conclusions dange‐
reuses.
Par exemple, d’après la pratique courante à quelques pays, en particulier en
Grèce et à Chypre, tous les avocats ont accès, devant le secrétariat des tribu‐
naux, aux décisions de justice sans invoquer d’intérêt légitime distinct. En lʹab‐
sence d’une restriction législative stricte sur la base de respect des données
personnelles, tout accès, même exercé par un avocat non autorisé, à une déci‐
sion de justice, pourrait constituer une violation des données personnelles.
191
Certes, lʹapplication du Règlement Général sur la Protection des Données à
caractère personnel à toutes les étapes de la fonction juridictionnelle des tribu‐
naux est quasiment impossible. Au tribunal, il est pratiquement impossible de
dissimuler des données à caractère personnel, dʹautant plus quʹil est inévitable
de les divulguer et de les externaliser aux fins du procès.
Toutefois, aux étapes ultérieures, telles que la publication des décisions sur
Internet, il devrait exister un traitement des données conformément aux exi‐
gences du Règlement afin de limiter à la fois le cercle potentiel et réel des per‐
sonnes pouvant accéder aux informations et données personnelles qui ne les
concernent pas du tout et qui ne se reposent à aucun intérêt légitime.
Pour conclure, il convient de souligner que le Règlement Général sur la Pro‐
tection des Données est un texte législatif assez récent. Bien que, comme indi‐
qué dans lʹintroduction, il ne forme pas un statut règlementaire radicalement
nouveau, ses dispositions novatrices sont fréquemment interprétées par les
institutions européennes compétentes, qui publient des lignes directrices18. Il
reste alors de clarifier le concept de fonction juridictionnelle et de délimiter le
champ d’application de la législation européenne dans la pratique judiciaire, ce
qui contribuera à la fois au renforcement général de lʹespace européen de jus‐
tice et à la protection des droits fondamentaux, comme la protection de la vie
privée.
Pour une analyse détaillée du Règlement voir Mitrou, L., Le Règlement General sur la Pro‐
tection des Données. (Athènes ‐ Thessalonique: Editions Sakkoula, 2017), Kouroupis, K., Guide
de conformité avec le Règlement Général sur la Protection des Données. (Nicosia: Editions En
Typois, 2018).
18
Special Issue
UN Goals and Sustainable Development:
Between Theory and Practice
Perceptions of Peace: The SDG 16 through the
Eyes of the UN Security Council,
the General Assembly and the Secretary‐General
Georgia Apostolaki
Researcher at the Hellenic Institute on United Nations Affairs
1. Introduction
2015 was a very important year for Sustainable Development, since the new
strategy of the United Nations (hereinafter UN) was launched, introducing the
new Sustainable Development Goals (hereinafter SDGs). This strategy comes
to replace the Millennium Goals and to usher a new area for sustainable devel‐
opment around the world. And for the first time, there is a Goal dedicated to
peace; indeed, Goal 16 is titled “Peace, Justice and Strong institutions”. Al‐
though it might seem obvious, there is no clear picture of what this Goal is and
what actions it entails, especially when it comes to such a complex matter as
peace is.
This article will try to present a primary analysis of how the three main UN
bodies, namely the Security Council (hereinafter SC), the General Assembly
(hereinafter GA) and the Secretary General (hereinafter SG) perceive SDG 16.
The main question that this article will try to answer is what are the new ele‐
ments that SDG 16 brings or can add to the preexisting UN strategies and poli‐
cies concerning peace consolidation.
The first part will entail the thematic analysis of all documents produced by
the aforementioned UN bodies. The second part of will entail the results of the
thematic analysis, that is what is each body’s view of peace within the SDG 16.
After that is established, the analysis will focus on the main points of interests
that could answer the research question. Lastly, for the purposes of this article,
the term “Sustainable Peace” refers to peace within SDG 16.
2. The Thematic Analysis
The thematic analysis will help to determine what are the elements that Sus‐
tainable Peace consists of, according to the documentation produced by the
three main UN bodies in question that is the SC, GA and SG. The thematic
analysis does not only use documents that only make explicit mentions of the
SDG 16, but use terms that are relevant to the SDG, as presented in the GA De‐
cision, titled “Transforming our world: the 2030 Agenda for Sustainable De‐
velopment”1.
Key‐words that will be useful included: “sustainable development”, “Goal
16”, “SDG 16” alone or/and in conjunction with: “peace”, “peaceful”, “justice”,
UN General Assembly (2015) Resolution adopted by the General Assembly on 25 Septem‐
ber 2015 (A/70/L.1).
1
194
“effective institutions”, “accountable institutions”, accountability”, “violence”,
“abuse”, “exploitation”, “trafficking”, “torture”, “protection of children”, “rule
of law”, “illicit financial and arms flow”, “combat organized crime”, “organ‐
ized crime”, “corruption”, “bribery”.
The thematic analysis was conducted by using the method presented by
Braun and Clarke2 and it follows the steps suggested: firstly, all the documents
that were available online were gathered and read, so as for the author to fa‐
miliarize herself with the raw data. The thematic analysis was conducted to
any document produced by the said bodies and available online from
01/01/2016 until 31/07/2017, since the SDGs were put into force on the former
date. In overall, 5 documents made mentions to Sustainable Development and
Peace by the SC, 15 by the GA and 20 by the SG.
The second stage involved re‐reading the data and starting comprising the
first lists of codes. Then, the author tried to identify themes, in the logic that af‐
ter the fragmentation of the information segments was done, now was the time
to try and figure out what the documentation revealed about Sustainable
Peace.3 The fourth stage was to refine and review the main themes. A good ex‐
ample of themes collapsing together was the case of the “War and Peace” in
the SG’s documentations, as they were understood as the two facets of the
same phenomenon. The fifth stage was to rename the main themes and start‐
ing formulating the report for each UN body. And last but not least, the results
of the thematic analysis are presented.
2.1. UN Security Council and Sustainable Development Goal 16
As far as the UNSC is concerned, the essence of the SDG 16 is based on four
main themes: 1) Consolidation of Peace, 2) Rule of Law, 3) Security and 4) Sus‐
tainable Democratic Development. A vital part of the first theme is the term
“Sustaining Peace”, which entails all activities concerning peace‐keeping, the
prevention of conflict, as well as the avoidance of continuation and re‐
emergence of the conflict4. Other notions that are included into “Sustaining
Peace” are reconciliation and addressing the root causes of the conflict5. Main‐
taining the peace also means that addressing the needs of all the members of
the society, while the participation of women into the process is deemed neces‐
sary6.
Except of this relatively new term, the SC considers that the SDG 16 necessi‐
tate the fight against the negative impact of conflicts to the exploitation of
natural resources7 , as well as the establishment of legitimate state authorities
which can ensure good governance against phenomena such as inequalities
Braun, V., Clarke, V., “Using Thematic Analysis in Psychology,” Qualitative Research in
Psychology 3(2) (2006), p. 77‐101.
3 Ibid., p. 19.
4 UN Security Council (2016a) Resolution 2284/2016, p. 1‐2.
5 Ibid.
6 Ibid.
7 UN Security Council (2016b) Resolution 2277/2016, p. 2.
2
195
and corruption8. Lastly, the classic notion of peace‐keeping does play a very
important role, through the deployment of UN peace operations9.
The second pillar of Sustainable Peace is the Rule of Law. This theme con‐
sists of the eradication of impunity through the development of transitional
justice, the strengthening of the already exiting judicial system and the prisons
system10. The goal is to ensure that the persons accountable for crimes, such as
crimes against humanity or war crimes, are convicted11.
The SC deems the fight against corruption and shadow economy as equally
important. These illegal activities hinder economic development and sustain
and aid illegal drug trafficking12 . More specifically, distribution and use of
drugs not only hinder social development, but cause problems in the public
health sector13. Dealing with these problems will only be possible through the
establishment of effective, transparent and responsible public administration14.
Doubtless, the rule of law is based on respect and implementation of human
rights law, such as the eradication of torture and/or inhuman, humiliating and
degrading treatment15. Moreover, the SC puts emphasis on the effectiveness of
the national policing forces, notably, on their capability to fight organized
crime16. Lastly, the effectiveness of peace is also measured by the capability of
the State apparatus to fight terrorism, and how it deals with the negative ef‐
fects of the latter, such as the reintegration of children traumatized physically
and mentally by armed conflicts17.
The third pillar is Security. The first and foremost need to be addressed is
the protection of civilians that can be ensured through the following steps:
firstly, all parties to the conflict must pledge not to target civilians, and sec‐
ondly, they must be neutralized through disarmament and demobilization18.
Attention is also given to the protection of refuges and the internally dis‐
placed19. More specifically, the protection of children is of paramount impor‐
tance, since they are often used in various ways, from being soldiers, means to
detonate bombs, carry out suicide missions, and being used as objects of rape20
. In any case, the SC stresses out that the perpetrators much face justice for
committing these crimes21.
Another element of Security is the reform and strengthening of the police
UN Security Council (2016c) Resolution 2274/2016, p. 17.
UN Security Council (2016d) Resolution 2313/2016, p. 6‐7.
10 UN Security Council (2016c) Resolution 2274/2016, p. 17.
11 UN Security Council (2016b) Resolution 2277/2016, p. 3.
12 UN Security Council (2016c) Resolution 2274/2016,p. 13‐14.
13 Ibid., p. 7.
14 Ibid.
15 Ibid., p.17.
16 UN Security Council (2016b) Resolution 2277/2016, p. 7.
17 UN Security Council (2016c) Resolution 2274/2016, p. 15.
18 UN Security Council (2016b) Resolution 2277/2016, p 2, UN Security Council (2016d) Reso‐
lution 2313/2016, p.7 and UN Security Council (2016c) Resolution 2274/2016, p. 15.
19 UN Security Council (2016d) Resolution 2313/2016, p. 8.
20 UN Security Council (2016c) Resolution 2274/2016, p. 16.
21 Ibid., p. 17 and UN Security Council (2016b) Resolution 2277/2016, p. 6.
8
9
196
forces, including the active participation of women22, and the fight against ter‐
rorism, corruption and shadow economy23. The control and restrictions in the
transfer and use of small arms and light weapons, as well as the deactivation of
mines and explosives play key‐roles to this effort24.Restricting the use of these
military tools is in line with the arm conflict rules, while the effective tackling
of this problem lies in educating and training the military personnel against
mine fields25. The successful elimination of all mine fields contributes to the so‐
cioeconomic reintegration of all citizens26.
The last pillar of Sustainable Peace is Sustainable Democratic Development.
Democracy can be rooted in the sustainability of the electoral process, in the
broad participation in elections, as well as in reforms in electoral laws that can,
inter alia, facilitate the participation of women27.Democracy is based on hold‐
ing elections, since the process strengthens the liberty of speech and the broad
and open political dialogue28.
2.2. General Assembly and Goal 16
The GA has a vision of peace that promotes global prosperity and is rooted
in the international law and the international organizations that express it,
such as the UN and the International Criminal Court (hereinafter ICC)29. Piv‐
otal to Sustainable Peace is co‐operation among States and a common climate
of trust, efforts to success in a total and general disarmament, while inequality
cannot be tolerated30.
The main themes that can be indentified in the GA documents are: 1) Peace
Consolidation, 2) Rule of Law, 3) Terrorism Threats, 4) Protection of Life and 5)
Democracy. The first pillar of contains the Culture of Peace, referring to the
relevant GA Decision31 and is based on conflict prevention through soft power
activities, such as the promotion of peace through sports32. All activities can be
UN Security Council (2016b) Resolution 2277/2016, p.12 and UN Security Council (2016d)
Resolution 2313/2016, p. 2.
23 UN Security Council (2016c) Resolution 2274/2016, p. 5‐6, 18.
24 UN Security Council (2016a) Resolution 2284/2016, p. 5, UN Security Council (2016b) Reso‐
lution 2277/2016, p.5, UN Security Council (2016d) Resolution 2313/2016, p.7 and UN Security
Council (2016c) Resolution 2274/2016, p. 15.
25 UN Security Council (2016b) Resolution 2277/2016, p. 3, 9‐10.
26 UN Security Council (2016c) Resolution 2274/2016, p. 15.
27 Ibid., UN Security Council (2016b) Resolution 2277/2016, p. 2‐3 and UN Security Council
(2016a) Resolution 2284/2016, p. 3.
28 UN Security Council (2016b) Resolution 2277/2016, p. 2‐3.
29 UN General Assembly (2016k) Resolution adopted by the General Assembly on 13/12/2016
(A/71/515).
30 UN General Assembly (2016d) Resolution adopted by the General Assembly on 19/12/2016
(A/71/484/add.2) and UN General Assembly (2016h) Resolution adopted by the General Assem‐
bly on 19/12/2016 (A/71/484/Add.2), p. 6.
31 UN General Assembly (2016b) Resolution adopted by the General Assembly on 23/12/2016
(A/71/1.50).
32 UN General Assembly (2016j) Resolution adopted by the General Assembly on 16/12/2016
22
197
assisted by disarmament, good governance, and actions aiming towards recon‐
ciliation, as well as the protection of human rights, such as the protection of
human dignity, gender equality, and the protection of cultural and lingual di‐
versity33.
The second pillar is the Rule of Law. In order for peace to be consolidated
and its effects made sustainable, the law must be directing security. In other
words, security is not seen as a separate theme within Sustainable Peace but
rather as a facet of the Rule of Law34. Security, and more specifically, collective
security can only be achieved through eliminating drug trafficking and use,
since they not only facilitate the conditions for violence against women and
children, but they trigger violence among gangs, obstruct justice and are linked
to the organized crime as well35.
Moreover the access to justice (including transitional justice) should be free
to all, but that is not enough; the effective administration of justice through a
fair, transparent and free from discrimination judicial system and public ad‐
ministration is a vital precondition for the establishment of the rule of law, and
by extension, to the consolidation of peace36.
Just like the themes made for the SC, the GA results include two shared
codes in the theme Rule of Law, but also run through all the themes; the first is
human rights protection, and the other national ownership. The latter explores
the idea that no activity, strategy or policy would have any impact, if the local
society is not actively involved37, and the latter is an integral condition for the
establishment of the rule of law38. Furthermore, conditions that hinder socio‐
economic development, like unilateral economic sanctions against states, ra‐
cism, xenophobia and non‐tolerance are putting the brakes towards a sustain‐
able socioeconomic development, and by extension, towards the rule of law
and Sustainable Peace39. Lastly, social integration facilitates the establishment
(A/71/.38/Add.1), p. 2.
33 UN General Assembly (2016a) Resolution adopted by the General Assembly on 19/12/2016
(A/71/484/add.2), UN General Assembly (2016b) Resolution adopted by the General Assembly
on 23/12/2016 (A/71/1.50) and UN General Assembly (2016i) Resolution adopted by the General
Assembly on 22/12/2016 (A/71/L/43/Add.1), p. 2‐3.
34 UN General Assembly (2016k) Resolution adopted by the General Assembly on 13/12/2016
(A/71/515), p. 1.
35 UN General Assembly (2016l) Resolution adopted by the General Assembly on 19/04/2016
(A/S‐30/L.1).
36 UN General Assembly (2016m) Resolution adopted by the General Assembly on 19/04/2016
(A/71/485), p. 2‐3.
37 UN General Assembly (2016a) Resolution adopted by the General Assembly on 19/12/2016
(A/71/484/add.2), p. 4.
38 Ibid., p. 5, UN General Assembly (2016k) Resolution adopted by the General Assembly on
13/12/2016 (A/71/515), p. 1, UN General Assembly (2016l) Resolution adopted by the General As‐
sembly on 19/04/2016 (A/S‐30/L.1), p. 19 and UN General Assembly (2016m) Resolution adopted
by the General Assembly on 19/04/2016 (A/71/485), p. 2.
39 UN General Assembly (2016f) Resolution adopted by the General Assembly on 19/12/2016
(A/71/484), p. 2‐3 and UN General Assembly (2016l) Resolution adopted by the General Assem‐
bly on 19/04/2016 (A/S‐30/L.1), p. 8‐9.
198
of the rule of law through activities like sports40.
The third pillar is the fight against terrorism. Terrorism is considered the
first and foremost threat against security; it is directly linked to the organized
crime, to the international criminality and with the illegal trade of diamonds
and the slave trade; it thrives economically on the expense of women and chil‐
dren, who are being sexually and physically abused and it is a profound threat
against democratic development, against legality and social integration41.
In order to fight against these phenomena, the GA argues that all anti‐
terrorist measures must be designed and implemented based on the interna‐
tional humanitarian law, the human rights law and the refugee law42. Other‐
wise, there is the danger that these measures will create an environment con‐
ductive to violent extremism. Another crucial tactic against terrorism is the
tackling and elimination of the small arms and light weapons trade, as well as
the establishment of good governance in order to fight against corruption43.
The forth theme is the Protection of life. The effects of violence in the every‐
day life of citizens are indeed obvious: several people die because of terrorism
and civil strives; everyday violence cause by phenomena, such as honor kill‐
ings, homicides committed by security forces during protests or during states
of emergency44. There are citizens being victimized due to the color of their
skin or their belonging to a minority group or due to their sexual orientation45.
A special category of victims are the children living on the streets, since no‐one
cannot guarantee their safety46.
Another worrying issue is that of the extra‐judicial and illegal executions
and in many cases, they occur during (supposed) peaceful times. They consti‐
tute a clear violation of the right to life and under certain circumstances, they
can be characterized as genocide or/and crimes against humanity47. Examples
of these kinds of executions are forced disappearances and the death penalty48.
The administration of justice and witness protection is deemed paramount for
their elimination49. Ending violence can be achieved through the reform of the
UN General Assembly (2016j) Resolution adopted by the General Assembly on 16/12/2016
(A/71/.38/Add.1), p. 5.
41 UN General Assembly (2016a) Resolution adopted by the General Assembly on 19/12/2016
(A/71/484/add.2), p. 3, UN General Assembly (2016g) Resolution adopted by the General As‐
sembly on 01/07/2016 (A/70/1.55) and UN General Assembly (2016m) Resolution adopted by the
General Assembly on 19/04/2016 (A/71/485), p. 2.
42 UN General Assembly (2016g) Resolution adopted by the General Assembly on 01/07/2016
(A/70/1.55), p. 6, 8.
43 Ibid., 2‐4 and UN General Assembly (2016l) Resolution adopted by the General Assembly
on 19/04/2016 (A/S‐30/L.1), p. 10.
44 UN General Assembly (2016g) Resolution adopted by the General Assembly on 01/07/2016
(A/70/1.55), p. 3 and UN General Assembly (2016d) Resolution adopted by the General Assem‐
bly on 19/12/2016 (A/71/484/add.2), p. 2‐4.
45 Ibid.
46 Ibid.
47 Ibid., p. 2.
48 Ibid.
49 Ibid., p. 5‐6.
40
199
policing forces, the actions of which must be governed by the principles of
proportionality and necessity50.
The last pillar is Democracy. Good governance, transparent administration,
as well as independent and objective judicial authorities guarantees the de‐
mocratic order51. The GA perceives democracy to its global level, as it can be
established through the equal participation of all States within the interna‐
tional sphere: every single State has the right to peace, to international eco‐
nomic life, to solidarity and to the equal participation in the international deci‐
sion‐making processes52. Lastly, since all rights are directly linked to obliga‐
tions, the main State obligation is the collective responsibility to ensure the in‐
ternational peace and security53.
2.3. SDG 16 and the Secretary General
The SG cites the conditions, under which the UN Member‐States (hereinaf‐
ter UN MS) are called upon to implement the SDGs. The nature of the conflict
has altered; there are “silent conflicts”, breaking out of thin air, without warn‐
ing, while the participation of many parties and their refusal to co‐operate,
makes any attempts for peaceful settlement extremely difficult54. The corner‐
stones of Sustainable Peace must be the human rights and the creation of sus‐
tainable jobs55. Seemingly, nothing can be achieved without the necessary
funding and sound economic governance expected from all parties involved56.
The main themes are: 1) War and Peace, 2) Security and 3) Rule of Law. The
Ibid., p. 5 and UN General Assembly (2016n) Resolution adopted by the General Assembly
on 19/12/2016 (A/71/484/Add.2), p. 8.
51 UN General Assembly (2016h) Resolution adopted by the General Assembly on 19/12/2016
(A/71/484/Add.2), p. 2.
52 Ibid., p. 4‐5.
53 Ibid.
54 UN Secretary‐General, One Humanity: Shared Responsibility Report of the Secretary‐
General for the World Humanitarian Summit. (New York: United Nations, 2016), p. 29.
55 UN Secretary‐General, Report of the Secretary‐General on the Implementation of the Peace,
Security and Cooperation Framework for the Democratic Republic of the Congo and the Region.
(New York: United Nations, 2016), p. 15 and UN Secretary‐General, United Nations Regional
Centre for Peace, Disarmament and Development in Latin America and the Caribbean. (New
York: United Nations, 2016), p. 15.
56 UN Secretary‐General, One Humanity: Shared Responsibility. Report of the Secretary‐
General for the World Humanitarian Summit. (New York: United Nations, 2016), p. 37, UN Sec‐
retary‐General, Report of the Secretary‐General on the Implementation of the Peace, Security
and Cooperation Framework for the Democratic Republic of the Congo and the Region. (New
York: United Nations, 2016), p. 15 and UN Secretary‐General, United Nations Regional Centre
for Peace, Disarmament and Development in Latin America and the Caribbean. (New York:
United Nations, 2016), p. 15, UN Secretary‐General, Work of the Advisory Board on Disarma‐
ment Matters. (New York: United Nations, 2016), p. 11, UN Secretary‐General, Countering the
Threat Posed by Improvised Explosive Devices. (New York: United Nations, 2016), p. 5, UN Sec‐
retary‐General, Sport for Development and Peace: Towards Sports Enabling of Sustainable De‐
velopment and Peace. (New York: United Nations, 2016), p. 7, UN Secretary‐General, Report of
the Secretary‐General on Developments in Guinea‐Bissau and the Activities of the United Na‐
tions Integrated Peace‐building Office in Guinea‐Bissau (New York: United Nations, 2016), p. 10.
50
200
first theme must be understood as the two side to the same coin; the heads is
the conflict: it is the biggest threat against human development, while it cause
the most serious humanitarian crises57; it destabilizes states that have just come
out of violence and it corrodes their socioeconomic tissue58; major infrastruc‐
ture is destroyed; thousands of people are forced to abandon their homes59.
The consequences of conflicts are not only material, but psychological as well:
sexual violence and abuse, torture and slave trade are some of the aspects of
warfare60 . In many cases, violence spills over from the national borders to the
international sphere, a fact that can facilitate the spread of international
crime61.
The tails of this coin is all attempts focused on preventing and eradicate
conflict. The consolidation of peace can be only achieved through co‐operation,
using the protection of humanity as a guiding light62. Of course, nothing is
possible without political unity and without suitable global leadership63.
The SC and the UN MS play a pivotal role that is directly linked to national
sovereignty. The latter must be understood as a notion that comes with certain
obligations, such as the responsibility to protect not only the citizens that live
under the territory of the State, but the citizens of neighbor States, as well; the
sovereign State must allow access to humanitarian help and provide protection
to refuges and migrant; the sovereign State must bring to light cases of interna‐
tional law violations64. Moreover, States must usher attempts to peaceful con‐
UN Secretary‐General, One Humanity: Shared Responsibility Report of the Secretary‐
General for the World Humanitarian Summit. (New York: United Nations, 2016), p. 29.
58 UN Secretary‐General, Countering the Threat Posed by Improvised Explosive Devices.
(New York: United Nations, 2016), p. 5‐6 and UN Secretary‐General, Relationship between Dis‐
armament and Development. (New York: United Nations, 2016), p. 7.
59 UN Secretary‐General, United Nations Institute for Disarmament Research. (New York:
United Nations, 2016), p. 3, UN Secretary‐General, Countering the Threat Posed by Improvised
Explosive Devices. (New York: United Nations, 2016), p. 4, UN Secretary‐General, Report of the
Secretary‐General on Developments in Guinea‐Bissau and the Activities of the United Nations
Integrated Peace‐building Office in Guinea‐Bissau. (New York: United Nations, 2016), p. 11, UN
Secretary‐General, Relationship between Disarmament and Development. (New York: United
Nations, 2016) p. 9.
60 UN Secretary‐General, One Humanity: Shared Responsibility Report of the Secretary‐
General for the World Humanitarian Summit. (New York: United Nations, 2016), p. 27, UN Sec‐
retary‐General, Report of the Secretary‐General on the Activities of the United Nations Office for
West Africa and the Sahel. (New York: United Nations, 2016), p. 11.
61 UN Secretary‐General, United Nations Institute for Disarmament Research. (New York:
United Nations, 2016), p. 3.
62 UN Secretary‐General, Consolidation of Peace through Practical Disarmament Measures
and Assistance to States for Curbing the Illicit Traffic in Small Arms and Light Weapons and
Collecting them. (New York: United Nations, 2016), p. 3, UN Secretary‐General, Countering the
Threat Posed by Improvised Explosive Devices. (New York: United Nations, 2016), p. 10 and UN
Secretary‐General, Sport for Development and Peace: Towards Sports Enabling of Sustainable
Development and Peace. (New York: United Nations, 2016), p. 18.
63 UN Secretary‐General, One Humanity: Shared Responsibility Report of the Secretary‐
General for the World Humanitarian Summit. (New York: United Nations, 2016), p. 49.
64 Ibid., p. 46.
57
201
flict resolution, through their political and economic powers; they can put
pressure to the parties of the conflict to comply with international law, as well
as ensure the co‐operation of all parties involved65.
Furthermore, the SG shifts the importance from conflict management to
timely response to the conflict66. Phenomena, such as the stockpile of arms,
human rights violations, judicial discrimination, socioeconomic marginaliza‐
tion and corruption must be dealt with are soon as they are detected, so as not
to evolve into a full‐scale conflict67. More specifically, preventive diplomacy
can be a practical means to de‐escalate tensions, since trust‐building measures
can replace investment in the military security sector, while the dialogue in
bona fide can address the root causes of the conflict68.
The SG also brings to light a notion that is easily forgotten; the importance
of education, as it can help tackle child abuse and their enlisting in conflicts,
while it facilitates the participation of young people69. Doubtless, none of these
attempts would have any meaning, if the local community does not participate
in the consolidation of peace70. Political solutions must cover the needs of all
the members of the society, especially those of the young people and women71.
The local communities can demand peaceful resolutions and they can mobilize
the general public towards this end72. Lastly the SG recognizes two more ele‐
ments of Sustainable Peace; the revival of the market and of the economy and
that the international community must turn its attention constantly to con‐
Ibid., p. 41 and 49.
Ibid, p. 32.
67 UN Secretary‐General, Relationship between Disarmament and Development. (New York:
United Nations, 2016), p. 7, UN Secretary‐General, Countering the Threat Posed by Improvised
Explosive Devices. (New York: United Nations, 2016), p.12 and UN Secretary‐General, United
Nations Institute for Disarmament Research. (New York: United Nations, 2016), p. 3.
68 UN Secretary‐General, Relationship between Disarmament and Development. (New York:
United Nations, 2016), p. 3, 8‐9.
69 UN Secretary‐General, One Humanity: Shared Responsibility Report of the Secretary‐
General for the World Humanitarian Summit. (New York: United Nations, 2016), p. 27‐28, UN
Secretary‐General, Sport for Development and Peace: Towards Sports Enabling of Sustainable
Development and Peace. (New York: United Nations, 2016), p. 7.
70 UN Secretary‐General, Countering the Threat Posed by Improvised Explosive Devices.
(New York: United Nations, 2016), p. 17, UN Secretary‐General, Sport for Development and
Peace: Towards Sports Enabling of Sustainable Development and Peace. (New York: United Na‐
tions, 2016), p. 6, UN Secretary‐General, Report of the Secretary‐General on Developments in
Guinea‐Bissau and the Activities of the United Nations Integrated Peace‐building Office in
Guinea‐Bissau. (New York: United Nations, 2016), p. 11.
71 UN Secretary‐General, Countering the Threat Posed by Improvised Explosive Devices.
(New York: United Nations, 2016), p. 12, UN Secretary‐General, Sport for Development and
Peace: Towards Sports Enabling of Sustainable Development and Peace. (New York: United Na‐
tions, 2016), p. 9, 12, UN Secretary‐General, Report of the Secretary‐General on the Activities of
the United Nations Office for West Africa and the Sahel. (New York: United Nations, 2016), p. 15
and UN Secretary‐General, United Nations Regional Centre for Peace and Disarmament in Af‐
rica. (New York: United Nations, 2016), p. 6.
72 UN Secretary‐General, One Humanity: Shared Responsibility Report of the Secretary‐
General for the World Humanitarian Summit. (New York: United Nations, 2016), p. 41.
65
66
202
flicts73.
The second theme is Security. The global environment is extremely danger‐
ous: security is threatened by several illegal activities, like piracy, and drug
trafficking, while the physical security of citizens is under threat because of
oppression and fear74. In order to reverse this climate, the SG deems that initia‐
tives, such as the tackling of illegal small arms and light weapons trade, since
they strengthen the international organized crime and the violent extremism75.
Another issue is the general disarmament, including nuclear disarmament, a
practice that seems to be weakening since the geopolitical uncertainty has lead
States to an arms race76.
In order for the disarmament measure to have any impact, not only the es‐
tablishment of practical actions are vital, but the institutional capacity, as well,
such as the elimination of corruption, inequality and educational programs
against arms77. A phenomenon that puts the brakes in the general disarmament
efforts is the improvised explosive devices78.
These devises usually target civilians and basic infrastructure, sometimes
even humanitarian help, while the main victims of these attacks are children;
either because schools are being chosen as target or because children are used
in suicide attacks. The results of the use of the improvised explosive devises
UN Secretary‐General, Countering the Threat Posed by Improvised Explosive Devices.
(New York: United Nations, 2016), p. 12, UN Secretary‐General, One Humanity: Shared Respon‐
sibility Report of the Secretary‐General for the World Humanitarian Summit. (New York: United
Nations, 2016), p. 37 and UN Secretary‐General, Taking Forward Multilateral Nuclear Disarma‐
ment Negotiations. (New York: United Nations, 2016), p. 15‐16.
74 UN Secretary‐General, Regional Confidence‐building Measures: Activities of the United
Nations Standing Advisory Committee on Security Questions in Central. (New York: United Na‐
tions, 2016), p. 15, UN Secretary‐General, Relationship between Disarmament and Development.
(New York: United Nations, 2016), p. 3 and UN Secretary‐General, Work of the Advisory Board
on Disarmament Matters. (New York: United Nations, 2016), p. 11.
75 UN Secretary‐General, United Nations Institute for Disarmament Research. (New York:
United Nations, 2016), p. 3, UN Secretary‐General, United Nations Regional Centre for Peace,
Disarmament and Development in Latin America and the Caribbean. (New York: United Na‐
tions, 2016), p. 3‐4, UN Secretary‐General, United Nations Regional Centre for Peace and Disar‐
mament in Africa. (New York: United Nations, 2016), p. 3, 5, UN Secretary‐General, Consolida‐
tion of Peace through Practical Disarmament Measures and Assistance to States for Curbing the
Illicit Traffic in Small Arms and Light Weapons and Collecting them. (New York: United Na‐
tions, 2016), p. 4, UN Secretary‐General, United Nations Institute for Disarmament Research.
(New York: United Nations, 2016), p. 3, UN Secretary‐General, Work of the Advisory Board on
Disarmament Matters. (New York: United Nations, 2016), p. 11.
76 UN Secretary‐General, Taking Forward Multilateral Nuclear Disarmament Negotiations.
(New York: United Nations, 2016) and UN Secretary‐General, United Nations Institute for Dis‐
armament Research. (New York: United Nations, 2016), p. 3.
77 UN Secretary‐General, United Nations Institute for Disarmament Research. (New York:
United Nations, 2016), p. 3, UN Secretary‐General, United Nations Regional Centre for Peace,
Disarmament and Development in Latin America and the Caribbean. (New York: United Na‐
tions, 2016), p. 3 and UN Secretary‐General, United Nations Regional Centre for Peace and Dis‐
armament in Africa. (New York: United Nations, 2016), p. 3.
78 UN Secretary‐General, Countering the Threat Posed by Improvised Explosive Devices.
(New York: United Nations, 2016).
73
203
are catastrophic: thousands of people are forced to abandon their homes, re‐
forms in the security sectors cannot be realized, the public governance is ob‐
structed, the moral of the security forces personnel is eroded, while the safe
aviation is under threat. These devices are usually being used by terrorism or‐
ganizations that are why all anti‐terrorism measures must make provisions for
addressing this threat.
Another issue is the potential use of new technologies not for peaceful pur‐
poses, but for military use, such as cyber‐attacks79. In order for security to be
established, all relevant measures must be designed and implemented accord‐
ing to human rights law and good governance, while the already existing secu‐
rity infrastructures should be strengthened and military expenses must be de‐
creased80.
The last theme is the Rule of Law. The rule of law is ensured through re‐
forms to the security sector and through access to justice for all81. More specifi‐
cally, the international judicial system must be reinforced in order to tackle
impunity82. Last but not least, the SG argues that the ICC must be reinstated as
one of the most important means to establish the rule of law83.
3. Analysis
What are then the new elements SDG 16 brings to the consolidation of peace
within the UN? Firstly, all themes and codes that derived from all three major
UN bodies suggest that Sustainable Peace entails older and new UN policies
and strategies dedicated to peace consolidation. The latest of these is “Sustain‐
ing Peace”.
As it has been already stated, a notion that plays a very important role
within Sustainable Peace is that of peace‐building. The SC, GA and SG agree
that peace‐building is the key to peace consolidation and addressing the roots
of the conflict. Indeed, SDG 16 seems to include the conclusions drawn from
the UN Report of the Advisory Group of Experts titled “Sustaining the Peace”,
UN Secretary‐General, Work of the Advisory Board on Disarmament Matters. (New York:
United Nations, 2016), p. 11.
80 UN Secretary‐General, Countering the Threat Posed by Improvised Explosive Devices.
(New York: United Nations, 2016), p. 14 and UN Secretary‐General, Consolidation of Peace
through Practical Disarmament Measures and Assistance to States for Curbing the Illicit Traffic
in Small Arms and Light Weapons and Collecting them. (New York: United Nations, 2016), p. 8.
81 UN Secretary‐General, Work of the Advisory Board on Disarmament Matters. (New York:
United Nations, 2016), p. 11‐12, UN Secretary‐General, Report of the Secretary‐General on the
Activities of the United Nations Office for West Africa and the Sahel. (New York: United Na‐
tions, 2016), p. 11, UN Secretary‐General, One Humanity: Shared Responsibility Report of the
Secretary‐General for the World Humanitarian Summit. (New York: United Nations, 2016), p.
40.
82 UN Secretary‐General, Report of the Secretary‐General on the Activities of the United Na‐
tions Office for West Africa and the Sahel. (New York: United Nations, 2016), p. 15.
83 UN Secretary‐General, One Humanity: Shared Responsibility Report of the Secretary‐
General for the World Humanitarian Summit. (New York: United Nations, 2016), p. 17‐18.
79
204
as it was envisaged in SC Resolution 164584. The said Report suggests the trans‐
formation of the Peace‐building Architecture into a more integrated strategy
that will not entail the constrictions imposed by its first conception by the SGs
Boutros‐Ghali and Kofi Anan, but will enclose all the relevant policies of the
Cycle of Peace, that is Preventive Diplomacy, Peace‐making, Peace‐keeping
and Peace‐Building85.
As Figure 1 shows, there is a timely linear relation that connects all four
peace instruments. This linear relation refers to when during a conflict these
instruments should be deployed, as there are seen to be integral stages in a
logical process86. To paraphrase the Ecclesiastes, to peace instrument there is a
time and a purpose under the UN. Firstly, at the early stages of a dispute, pre‐
ventive diplomacy is deployed, so as for the parties involved to solve their dif‐
ferences before they resolve to violence. Later, and after preventive diplomacy
did not bare any fruits and the violent conflict has just manifested, Peace‐
making and Peace‐keeping are deployed with the objective each to halt any
violence and to ensure any fragile truce that has been achieved. The success of
these three stages will pave the way for the post‐conflict Peace‐building with
the purpose to prevent any new conflict from emerging in the future.
However, the new architecture that the Advisory Group of Experts suggests
break that linear relation between the instruments for peace, arguing that the
main responsibility of “Sustaining Peace” does not solely lies in the post‐
conflict activities, but in creating the necessary conditions that will make the
conflict unnecessary in the first place87.
Security Council (2005) Resolution 1645 (2005).
Advisory Group of Experts, The Challenges of Sustaining Peace. Report of the Advisory
Group of Experts for the 2015 Review of the United Nations Peace‐building Architecture. (New
York: United Nations, 2015) p. 12‐13, Boutros‐Ghali, B., Preventive Diplomacy, Peacemaking and
Peace‐keeping. (New York: United Nations, 1992), Boutros‐Ghali, B., Supplement to an Agenda
for Peace: Position Paper of the Secretary‐General on the Occasion of the Fiftieth Anniversary of
the United Nations. (New York: United Nations, 1995) and Annan, K., In Larger Freedom: To‐
wards Development, Security and Human Rights for All. (New York: United Nations, 1995).
86 Boutros‐Ghali, B., Preventive Diplomacy, Peacemaking and Peace‐keeping. (New York:
United Nations, 1992), p. 11‐12.
87 Advisory Group of Experts, The Challenges of Sustaining Peace. Report of the Advisory
Group of Experts for the 2015 Review of the United Nations Peace‐building Architecture. (New
York: United Nations, 2015), p. 12.
84
85
205
Figure 1:
The Cycle of Peace: The Relation between the Four Instruments of Peace88
It can be thus suggested that the Peace‐Building Architecture loses its “post‐
conflict” character, since it is part of a broader strategy that includes all the in‐
struments for peace. Of course, the idea of the parallel deployment of all/some
peace instruments has been supported before, as analysts suggested that these
all activities for the consolidations of peace are more effective when they are
simultaneously deployed89.
Another conclusion is that peace‐building can be also seen not as an integral
part of SDG 16, but as being SDG 16. Table 1 show that the activities of Peace‐
building and Sustainable Peace are almost identical:
Apostolaki, G., Building the Peace: 10 Years since the Establishment of the United Nations
Peace‐Building Committee. Unpublished Master’s Thesis (Athens: National and Kapodistrian
University of Athens, 2015), p. 153.
89 Burns, L., “Peacekeeping, the Congo, and Zones of Peace,” Peace Review: A Journal of So‐
cial Justice 9(2) (1997), p. 191.
88
206
Table 1:
The Relation Between Peace‐Building and SDG 16
Peace‐Building
SDG 16
Post‐conflict
Addressing the root causes
Disarmament
Order restoration
Arms confiscation and destruction
Refugees repatriation
Education of security forces
Elections
Promotion of human rights
Institutional reform/enpowerment
National ownership
Active participation of women
Active youth participation
Humanitarian assistance
Democratization
Infrastructure development
Exploitation of natural resources
Conflict prevention
Consent of the parties involved
Regional organizations participation
Ad Hoc state groups
Individual states
NGOs
Ιnstitutionalization
Peace‐making
Peace Enforcement
Peace‐Keeping
‐
‐
‐
Funding
Obligatory
Voluntary
90
‐
Source: Table created by the author using information from: Advisory Group of Experts, The
Challenges of Sustaining Peace. Report of the Advisory Group of Experts for the 2015 Re‐
view of the United Nations Peacebuilding Architecture. (New York: United Nations,
2015), p. 12‐13, Boutros‐Ghali, B., Preventive Diplomacy, Peacemaking and Peace‐
keeping. (New York: United Nations, 1992), Boutros‐Ghali, B., Supplement to an Agenda
for Peace: Position Paper of the Secretary‐General on the Occasion of the Fiftieth Anni‐
versary of the United Nations. (New York: United Nations, 1997), Annan, K., In Larger
Freedom: Towards Development, Security and Human Rights for All. (New York: United
Nations, 2005), pp. 2‐13.
Funding for peace‐building activities can be a very complex issue. If these activities are not
authorized with a SC Resolution and they are not part of a peace operating under Chapter VI,
then states must find other resources. Of course, there is always the Peace‐Building Fund avail‐
able, yet, it only supports activities for the early stages of peace‐building.
90
207
What changes is the fact that unlike Peace‐building, a policy that is usually
being implemented by the UN or with the UN having a very important role in
it, the SDG 16 and by extension, Sustainable Peace, is a strategy that is imple‐
mented by the States themselves and by the local communities. Therefore, it
can be suggested that SDG 16 can facilitate the internalization of all the posi‐
tive lessons learned from the 13 years of implemented peace‐building activi‐
ties, and as such, make it a national policy.
Another strategy/policy that seems to be included within Sustainable Peace
is that of the Culture of Peace, that is mainly found in the documents produced
by the GA. The consolidation of peace is first and foremost based on the
spreading of a culture for peace; this should not be solely understood as a pol‐
icy, but rather as a way of life, a specific mindset.
The way that this process can be explained can be given by a reverse exam‐
ple: McKeown91 suggests that Milgram’s research concerning the obedience of
the Nazi military personnel shows that ordinary people that consciously lead
thousands of victims to their deaths are not by definition or by nature “evil”.
Rather, certain social conditions and influences were more likely to have con‐
tributed to their behavior. Just like in this example, the culture of peace can
generate positive behavior in the service of peace consolidation. In that sense,
peace becomes part of each and every person in a society that has emerged
from conflict; in other words, peace consolidation is achieved on the level of
social psychology and not only on the operational/political level.
Ιn the same vein, another example of such a policy is education. The impor‐
tance of education can be found as a code in the documents produced by both
the GA and SG. Without education, it is deemed impossible to transform all
the conditions (political, ethnical, social or individual) that lead to the conflict
into the conditions that will eliminate the roots of violence and increase social
cohesion92. Indeed, Maulden93 stresses out the importance of formal and non‐
formal education, but most importantly, she points out the necessity of educa‐
tion that teaches peace; that aims at informing citizens about the negative as‐
pects of conflict and the positive outcomes of peaceful co‐existence.
Apart from these policies, another one detected is the “Responsibility to
Protect”, mostly being referred to in the documents produced by the SG. This
was firstly invented on the basis that States are obligated to protect their citi‐
zens and all people within their territory and rests on three pillars: 1) the re‐
sponsibility to prevent human rights violations, 2)the obligation to take action
when the said violations (such as crimes against humanity, war crimes and/or
genocide) are committed through mechanisms that vary from peaceful settle‐
ment, persuasion, to coercive measures, like military intervention and 3)the ob‐
ligation to rebuild, that is all efforts to re‐establish the State after a military in‐
McKeown, S., “Social Psychology and Peacebuilding,” in Mac Ginty, R. (ed.) The
Routledge Handbook of Peacebuilding. (Abingdon: Routledge, 2013), pp. 117‐118.
92 Maulden, A. P., “Education and Learning,” in Mac Ginty, R. (ed.) The Routledge Hand‐
book of Peace‐building. (Abingdon: Routledge, 2013), p. 288.
93 Ibid., p. 293.
91
208
tervention, efforts to peace and rule of law consolidation94.
The fact that Sustainable Peace seems to include all the aforementioned UN
policies and strategies can be seen as a rare opportunity to gather all the rele‐
vant ideas and practiced dedicated to peace consolidation under one common
framework. Following this rational, it can be suggested that the structure of
Sustainable Peace can address at least two problems: the problem of co‐
ordination and the problem of “nationalizing” UN policies.
Problems of co‐ordination can be found in any level, such as between the
actors within the same peace operation. A very enlightening example is the
fact that the SG Special Envoy in the United Nations Mission in Kosovo (here‐
inafter UNMIK) could not fire any UN personnel on grounds of misconduct,
because he would trigger his dismissal from the SC95. Another example of lack
of co‐operation is that of the Peace‐Building Commission (hereinafter PBC). In
both 5‐year reviews of the PBC, the co‐operation between the Organizational
Committee and the Country‐Specify Configurations was very problematic.
The latter are able to enter into agreements with assigned countries, in addi‐
tion to the Integrated Peacebuilding Strategies (hereinafter IPBS) that the for‐
mer was designing. As a result, the Presidents of the Country‐Specific Con‐
figurations committed the PBC to activities that were outside of the general
planning, and as such, they were impossible to be implemented96. It would
thus be is much easier for MS to assess the effective implementation of the said
policies/strategies/ideas/practices, when they are all under the same roof, since
possible overlaps and/or deficiencies are more visible.
Another very positive conclusion that can be drawn from the thematic
analysis is that national ownership plays a very important role in the SDG 16
implementation. Apart from the fact that the active participation of citizens is
imperative, since they are called upon to re‐build their societies onto which
they will themselves live, create and evolve, national ownership is considered
to be the key in solving another vital problem of UN peace operations; that is
how to make all peace consolidation activities/policies/strategies legitimate in
the eyes of the local societies97.
Indeed, the UN has been accused of serving Western imperialist interests by
using certain policies, such as Peace‐Building or the Responsibility to Protect98.
All relevant activities are seen as being imposed by the Western world to coun‐
Borgia, F., “The Responsibility to Protect Doctrine: Between Criticisms and Inconsisten‐
cies,” Journal on the Use of Force and International Law 2(2) (2015), p. 226.
95 Choedon, Y., ‘’The United Nations Peacebuilding in Kosovo: The Issue of Coordination,”
International Studies 47 (1) (2010), p. 51‐54.
96 Hearn, S. et al., The United Nations “Peacebuilding Architecture”: Past, Present and Fu‐
ture. (New York: New York University, 2014), p. 7.
97 Paris, P., ‘Post‐Conflict Peacebuilding ‘, in: Weiss, G. Thomas and Daws, S. (eds.) The Ox‐
ford Handbook on the United Nations. (Oxford: Oxford University Press, 2008), p. 424.
98 Schellhaas, C., Seegers, A., “Peacebuilding: Imperialismʹs New Disguise?’ African Security
Review 18(2) (2009), p. 11, Bellamy, A. et al., Understanding Peacekeeping. (Cambridge: Polity
Press, 2007), pp. 246‐249, Moses, J. et al., “The Iraq War and the Responsibility to Protect: Uses,
Abuses and Consequences for the Future of Humanitarian Intervention,” Journal of Intervention
and State‐building 5(4) (2011), p. 351.
94
209
tries that it deems fragile, in an attempt to re‐create not only the State itself, but
all the social conduct, behavior and perceptions, all of which are being con‐
trolled and solely implemented by a Western metropolitan centre, just as the
practice was during the Colonial Era.
Even though Sustainable Peace seems to have positive aspects towards the
consolidation of peace, it would be foolish to believe that it does not bring
forth negative aspects as well. Take good governance, for example. The main
UN bodies deem that this aspect is paramount to Sustainable Peace, yet the
question that they do not sufficiently answer is who is more suitable to take on
such an undertaking and see it successfully through? Obviously, the SDGs are
a series of strategies decided on the international level, but are to be imple‐
mented on the national level. However, peace consolidation can be a very deli‐
cate and complex issue to be addressed solely by national governments. A
good case for this argument is Libya. After the SC Resolution to authorize the
use of force in Libya and the regime change that followed, the UN did not ac‐
tively participated in the state reconstruction affords, as it had done in previ‐
ous cases with either a deployment of a peace operation or taking over the
transitional administration. Instead, the SC authorized a political mission, the
United Nations Support Mission for Libya (hereinafter UNSMIL). UNSMIL
was deployed after the relevant request of the transitional authorities in Libya,
members of which were the now former opposition fighters against the Gad‐
daffi regime99. Indeed, the mandate of the mission makes clear mentions to na‐
tional ownership and how important it is towards post‐conflict peace building,
while the its main responsibilities are confined to providing good offices and
advice concerning the matter of state reconstruction100.
It can thus be stated that the UN presence in Libya is very limited. But this
freedom of movement had made the situation in Libya worse than expected;
the transitional authorities had no control over the armed parties to the con‐
flict, and was forced to step down in favor of the General National Congress.
The latter took over the transitional administration until the 2014 elections, un‐
til the newly elected government was formed and performed its duties in To‐
bruk and not in Tripoli, because the opposition forces to the government con‐
trolled the city. In the meantime, the so‐called Islamic State (hereinafter IS)
took advantage of the political instability and started controlling Libyan cities.
The UN reacted a year later with mediation efforts to persuade the two gov‐
ernments in Tobruk and Tripoli to form a joint government. However, the ef‐
forts collapsed, and the UN‐backed leader and members of his cabinet are
forming their government in a naval base in Libya. In a nutshell, the state of
Libya has three separate governments, it has been characterized as a failed
state101, it has harbored IS fighters and there seems no viable solution to this
United Nations Support Mission in Libya (2018) ‘Mandate’, United Nations 03 February
2018 [Online]. Available at: https://unsmil.unmissions.org/mandate (Last access: 3 February
2018) and BBC (2018) ‘Libya profile‐Timeline’, BBC 24 January 2018 p. 1 [Online]. Available at:
http://www.bbc.com/news/world‐africa‐13755445.
100 United Nations Security Council (2011) Resolution 2009/2011, p. 3‐5.
101 MacKenzie, A., ‘Is Libya a failed state?’ Deutsche Welle 24 May 2017, p. 1 [Online]. Avail‐
99
210
complex situation in the near future.
Doubtless the argument that the situation in Libya is solely caused because
of the limited UN presence cannot be supported, but it is certain that the in‐
adequate attention the state received from the international community did fa‐
cilitate to shape Libya’s current state of affairs. This raises the question to what
extent peace consolidation activities under the SDG 16 should be solely man‐
aged and implemented by national authorities.
Another negative point that is not adequately addressed is that of economic
development. No‐one can question the relation between economic develop‐
ment and peace, since growth requires a functional institutional and legal
framework and the development of legitimate state institutions; and by exten‐
sion, economic progress can help to the evolution of the said institutions102.
However, the problem between Sustainable Peace and economic development
has at least two manifestations.
Firstly, as Stewart103 points out, even though there are clear mentions to the
importance of economic development in the implementation of the Sustainable
Development Goals in general, there are no provisions about an economic
model that is compatible with sustainable development. As long as capitalism
and “laissez‐faire” is recognized as only model for economic development,
policies based on redistribution can could fund sustainable economic devel‐
opment are impossible to be implemented on a international and/or national
scale, while austerity measures that are predominant worldwide and in several
cases are imposed by the International Monetary Fund (hereinafter IMF) slash
public spending and, by extension, limit the resources available for social wel‐
fare measures.
Secondly, it must be pointed out that all SDG 16 activities (and that same
fact applies to the rest of the SDGs as well) are not funded by an already‐
existing fund solely dedicated to their implementation, nor has such a fund be‐
ing created for this purposed. As a result, the question of how States will be
able to sponsor their post‐conflict re‐development and maintain the peace sus‐
tainable is not adequately answered. As experience has shown, state recon‐
struction and peace‐building are both very expensive and very complex proc‐
esses. Even in cases when funding was substantial, the results could not be
predicted. This argument is best illustrated with the example of Iraq: it is esti‐
mated that the US administrations had allocated 2 trillion Dollars from 2003 to
2011 in order to transform Iraq into a modern Western state104. It is safe to say
that the results of this endeavor were not positive, let alone desired.
On the other hand, in cases when the UN had created funds for specific
able at: http://www.dw.com/en/is‐libya‐a‐failed‐state/a‐38976280.
102 International Commission on Intervention and State Sovereignty, The Responsibility to
Protect. (Ottawa: International Development Research Centre, 2001), p. 42.
103 Stewart, F., ‘The Sustainable Development Goals: A Comment,” Journal of Global Ethics
11(3) (2015), pp. 290‐291.
104 Trotta, D., ‘Iraq War Costs U.S. More than $2 Trillion: Study.’ Reuters 14 March 2013 p. 1
[Online] Available at: http://www.reuters.com/article/2013/03/14/us‐iraq‐waranniversary‐id US‐
BRE92D0PG20130314.
211
purposes, problems persisted. For example, the Peace‐Building Fund (hereinaf‐
ter PBF) is not a development fund or one that can undertake financing en‐
tirely the peace‐building process; rather it covers activities for the early stages
of the process, and therefore, it cannot support states in the long term. Fur‐
thermore, the PBF hesitated to allocate funds to countries, where the situation
was unstable and discouraged sponsors from investing in major undertaking,
while the decision‐making process for releasing funds is complicated105.
Last but not least, another notion that can cause problems is that of democ‐
racy. Even though the contribution of democracy in the development of peace
societies has been highlighted106, practice has shown that holding elections in
societies when they have just emerged from a violent conflict can only destabi‐
lize them. There are several examples within the UN that can support this ar‐
gument, like Angola. The 1992 elections did not work as a reconciliation proc‐
ess for the warring parties, instead they created the conditions for fierce com‐
petition and enmity between the election candidates, thus re‐fuelling the con‐
flict107.
Several mistakes were made to the democratization process in Rwanda, as
well. The majority of the non‐governmental organizations (hereinafter NGOs)
that were responsible for the promotion of democratic values and human
rights were themselves separated into the two warring parties (Hutus and
Tutsis), while the media made this division even worse, as TV‐shows sup‐
ported the annihilation of the Tutsis, paving the way for the upcoming geno‐
cide108. The lesson to be learned here is that the democratization process for
countries that have just emerged from a violent conflict is neither automatic,
nor can it always lead to peace consolidation.
4. Conclusions
This article tried to investigate how do the main three UN bodies (SC, GA
and SG) perceive SDG 16 and what it entails. The end‐goal of this analysis was
to try to figure out if the said SDG offers anything new to the already existing
UN strategies that aim towards the consolidation of peace. After the thematic
analysis of all documents produced by the said UN bodies concerning Sustain‐
able Development and Peace, it was evident that the main themes emerging
were quite similar, thus, the perception of peace through sustainable develop‐
Ibid. p. 37.
The SG points out the connection between Peace‐building and democratization in the
“Agenda for Democratization). He states, inter alia, that democratization is a strong and effec‐
tive means in the promotion of (internal and external) security, of state‐building and economic
development. It also contains the element of prevention, since it allows the exchange of opinions
among the citizens and creates the conditions for peaceful dispute settlement, thus limiting the
space for relapse of violence. Furthermore, see Boutros‐Ghali, B., An Agenda for Democratiza‐
tion. (New York: United Nations, 1996).
107 Paris, R., At War’s End. Building Peace after Civil Conflict. (Cambridge: Cambridge Uni‐
versity Press, 2004), pp. 68‐69.
108 Ibid., p. 76.
105
106
212
ment is unified.
Another very important and positive outcome is the SDG 16 seems to entail
new and old UN policies and strategies towards the consolidation of peace,
like “Sustaining Peace”, the “Culture of Peace” and the “Responsibility to Pro‐
tect”. Apart from the fact that SDG 16 can and should be used as an opportu‐
nity to bring together all these policies under the same roof, and thus make it
easier to detect and correct overlaps and failures and to improve co‐ordination,
it offers a chance for national institutions and local communities to implement
all the positive experiences that the UN has to offer, thus making peace not a
top‐down strategy that is sometimes perceived as imperialistic or invasive, but
rather as a bottom‐up process that wields national ownership for its success.
Another very positive outcome is the fact that Sustainable Peace, as per‐
ceived by the three main UN bodies in question fills the gaps that limited the
understanding of the SDG 16, as it was envisaged by the GA Decision titled
“Transforming our world: the 2030 Agenda for Sustainable Development”.
This outcome is indeed a very helpful one, because Member‐States that are
called upon to implement the new SDGs can draw from the vast UN experi‐
ence of dealing with conflict situations, experience that can truly help countries
emerging from strife, be that civil or not, and can at least provide a roadmap,
suggesting policies and strategies for national implementation.
Nevertheless, Sustainable Peace as it is perceived by the SC, GA and SG, has
certain negative aspects that seem to be embedded in the past UN practices. As
Libya shows, national ownership is not a panacea for all that is wrong with
state‐ and peace reconstruction, while the burning issue of funding is yet to be
resolved, especially during a period where international markets are still try‐
ing to overcome the 2008 financial crisis. And of course, the influence of de‐
mocratic development to states that have just emerged from a violent conflict
cannot be underestimated, especially when there is evidence that it can actu‐
ally harm and not help the consolidation process.
SDG 16 was put into force in the first day of the first year of 2016. There are
several first days until 2030 and only time will tell if the new elements that
SDG 16 introduces to the UN peace consolidation efforts will be successfully
used and if the negative inherited elements will prevail or not.
The global challenge of combating human trafficking
as part of the sustainable development
Goal nr.16 of the UN.
Antigoni‐Maria Spyropoulou
Attorney at Law, LLM, PhD Student, National Kapodistrian University of Athens
On 25 September 2015, Member States of the United Nations adopted
‘Transforming our World: the 2030 Agenda for Sustainable Development,’ and
with it 17 Sustainable Development Goals (SDGs). The 2030 Agenda for Sus‐
tainable Development is intended as “a plan of action for people, planet and
prosperity that seeks to strengthen universal peace in larger freedom.” The
SDGs have moved beyond the focus on social and economic priorities reflected
in the Millennium Development Goals to a broad agenda that is universal in its
coverage.
In particular, the 2030 Agenda for Sustainable Development affirms explic‐
itly that “there can be no sustainable development without peace and no peace
without sustainable development”. It draws together the strands of peace, the
rule of law, human rights, development and equality into a comprehensive
and forward‐looking framework. Reducing conflict, crime, violence, discrimi‐
nation, and ensuring inclusion and good governance, are key elements of peo‐
ple’s well‐being and essential for securing sustainable development.
The international community gathered also to decide upon a new, broad
development framework to replace the Millennium Development Goals. The
vision was of “a world of universal respect for human rights and human dig‐
nity, the rule of law, justice, equality and non‐discrimination; of respect for
race, ethnicity and cultural diversity; and of equal opportunity permitting the
full realization of human potential and contributing to shared prosperity. A
world which invests in its children and in which every child grows up free
from violence and exploitation. A world in which every woman and girl enjoys
full gender equality and all legal, social and economic barriers to their empow‐
erment have been removed. A just, equitable, tolerant, open and socially inclu‐
sive world in which the needs of the most vulnerable are met.”
The United Nations system also has a key role in the new global agenda.
This is based on its culture of shared responsibilities, collective action and
benchmarking for progress. Through its work at global, regional and national
levels, UNODC will provide support to Member States to reach their Targets
under the various SDGs1. To guide global efforts to reach such a world, Heads
of State and Government from more than 150 countries announced a set of 17
Sustainable Development Goals (SDGs) with 169 associated targets.
The goals and targets will serve as a measurable framework for efforts to
achieve this vision by 2030. One of the main goals that will be supported is the
For UNODC and the Sustainable Development Goals, see https://www.unodc.org/ docu‐
ments/SDGs/UNODC‐SDG_brochure_LORES.pdf.
1
214
sustainable development goal nr.16, which has the target to promote peaceful
and inclusive societies for sustainable development, to provide access to justice
for all and to build effective, accountable and inclusive institutions at all levels.
In the context of SDG 16, the international community calls for the end of
abuse, exploitation, trafficking and all forms of violence against and torture of
children (SDG Target 16.2)2. This Target will be measured, among other indica‐
tors, by assessing the number of victims of trafficking in persons, disaggre‐
gated by age, sex and forms of exploitation (indicator 16.2.2).
Crimes that threaten the foundation of peaceful societies, including homi‐
cides, trafficking and other organized crimes, as well as discriminatory laws or
practices, affect all countries. Even the world’s greatest democracies face major
challenges in addressing corruption, crime and human rights violations for
everyone at home. Lack of access to justice means that conflicts remain unre‐
solved and people cannot obtain protection and redress. Institutions that do
not function according to legitimate laws are prone to arbitrariness and abuse
of power, and less capable of delivering public services to everyone.3
One of the targets of goal 16 of the UN is also to combat human trafficking
and the termination of abuse, exploitation and of all forms of violence and tor‐
ture against children. Reporting soundly and accurately on indicator 16.2.2
poses a great challenge to the international community and estimating the
number of undetected victims remains also a challenge4.
Human trafficking is a harmful and sometimes deadly practice whereby in‐
dividuals are enticed by jobs and hopes for a better future into a cycle of mi‐
gration and exploitation. Trafficking of persons has been called: a criminal act5,
For child trafficking see “Guardianship systems for children deprived of parental care in
the European Union ‐ With a particular focus on their role in responding to child trafficking”,
(FRA, Handbook Publication, 2015), available in http://fra.europa.eu/en/publication/2015/
guardianship‐children‐deprived‐parental‐care and United Nations Childrenʹs Fund (UNICEF)
Innocenti Research Centre, The Role of International Cooperation in Tackling Sexual Violence
Against Children: Background Paper for the International Conference in Rome, November 29‐30,
2012, Florence, United Nations Childrenʹs Fund (UNICEF) Innocenti Research Centre, available
in https://www.coe.int/en/web/children/
3 For “Peace, Justice and strong Institutions‐ Why they matter” see http://www.un.org/ sus‐
tainabledevelopment/wp‐content/uploads/2017/01/16‐00055p_Why_it_Matters_Goal16_Peace_
new_text_Oct26.pdf
4 For the Global Report on Trafficking in Persons of 2016 see http://www.unodc.org/ docu‐
ments/data‐and‐analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf.
5 Trafficking in human beings can be considered as a crime against humanity as well, see van
der Wilt, H., “Trafficking in Human Beings, Enslavement, Crimes against Humanity: Unraveling
the Concepts,” Chinese Journal of International Law (2011), pp. 297‐334. For the reclassification
of trafficking as an international crime see Tavakoli, N., “A Crime that Offends the Conscience of
Humanity: A Proposal to Reclassify Trafficking in Women as an International Crime,” Interna‐
tional Criminal Law Review 9 (2009), pp. 77‐98. For the transnational criminal networks and
trade in human beings as well as for the abolishment of the new slavery see Cohen, M., “Human
Trafficking, Smuggling and Illegal Immigration,’’ NATO Science for Peace and Security Series
79, (IOS Press, 2011). For trafficking as part of the organized crime see Fiona, D., ‘’Organised
Crime and Trafficking in Persons. Trends and Issues in Crime and Criminal Justice’’, Australian
Institute of Criminology 436 (2012), also available at http://www.aic.gov.au/publications
2
215
a human rights violation, a form of exploitation and an act of violence. For
health care providers, trafficking in persons is best understood as a very seri‐
ous health risk, because trafficking, like other forms of violence, is associated
with physical and psychological harm.6
According to the Report of 11th May 2017 “Progress towards the Sustainable
Development Goals Report” of the Secretary‐General, countries have made
solid progress in terms of detecting victims of trafficking in persons, as re‐
flected by the increasing number of detected victims over the last decade.
Globally, more women and girls than men and boys were identified as victims
of trafficking in 2014. However, the share of women and girls has slowly re‐
treated, from 84 per cent in 2004 to 71 per cent in 2014.
While the share of victims trafficked for sexual exploitation has declined,
the proportion of those trafficked for forced labour has increased7. About 28
per cent of all trafficking victims detected in 2014 were children, with girls
outnumbering boys (20 per cent and 8 per cent, respectively, of total victims).
Further, sexual violence is perhaps the most disturbing of children’s rights vio‐
lations. Underreporting and a lack of comparable data limit understanding of
the full extent of the problem. In 35 low‐ and middle‐income countries with
data, the proportions of women between 18 and 29 years of age who experi‐
enced sexual violence for the first time before 18 years of age ranged from 0
per cent to 16 per cent8.
Trafficking in persons is defined as the recruitment, transportation, transfer,
harbouring or receipt of persons, by means of the threat or use of force or other
forms of coercion, of abduction, of fraud, of deception, of the abuse of power
or of a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another person,
for the purpose of exploitation. Exploitation shall include, at a minimum, the
exploitation of the prostitution of others or other forms of sexual exploitation,
forced labour or services, slavery or practices similar to slavery, servitude or
the removal of organs (The United Nations Protocol to Prevent Suppress and
Punish Trafficking in Persons, especially Women and Children, which is sup‐
plementing the United Nations Convention against Transnational Organized
Crime)9.
/current%20series/tandi.html.
6 Caring for trafficked persons‐ guidance for health providers, IOM 2009.
7 For labour trafficking‐ forced labour indicators see also Anderson, B., “Worker, Helper,
Auntie, Maid?‐Working Conditions and Attitudes Experienced by Migrant Domestic Workers in
Thailand and Malaysia,” UN Women, ILO, 2016, Napier‐Moore, R., Sheill, K., “High Rise, Low
Pay. Experiences of Migrant women in the Thai Construction Sector”, (ILO, 2016), Andrevski,
H., Lyneham, S., “Experiences of Exploitation and Human Trafficking among a Sample of Indo‐
nesian Migrant Domestic Workers. Trends and Issues in Crime and Criminal Justice,” Australian
Institute of Criminology (AIC), 471 (2014), also available at http://www.aic.gov.au/publications/
current%20series/tandi/461‐480/tandi471.html.
8 For United Nations E/2017/66* Economic and Social Council, Progress towards the Sustain‐
able Development Goals Report of the Secretary‐General, May 11th, 2017, see http://www.un.org/
ga/search/view_doc.asp?symbol=E/2017/66&Lang=E
9 For the main phases in the trafficking process see Edward R. Kleemans‐ Μοnika Smit, Hu‐
216
The number of victims is defined as the number of detected and estimated
number of non‐detected adult women and men and girls and boys (18‐) who
have been trafficked for different forms of trafficking in persons. The estimated
ratio between the number of detected victims and the estimated number of
non‐detected victims can be used to estimate the total number of human traf‐
ficking victims at national, regional and global levels. In addition, the ratio can
be used to measure the efficiency of countries to detect trafficking victims.
Human trafficking for different forms of exploitation represents a major vio‐
lation of victim’s human rights, dignity and inclusion to the society. It has an
impact on a person’s health and opportunities, it creates economic inequalities
and it is a threat to the personal security. The regular production of figures on
this indicator will allow the monitoring of the impact of the anti‐trafficking
measures to the level of trafficking at national, regional and global levels. It
also helps to assess the capacity of countries to detect and consequently sup‐
port victims of trafficking. It will raise awareness on the most prevalent forms
of trafficking in persons in different parts of the world.
The research community and UNODC are investing in the development of
new methodologies to estimate the number of undetected victims. Until the
coverage of these estimates allow for accurate global estimates, the indicator
on detected victims can be used to inform the achievement of trafficking in
persons‐related targets to a certain extent. While this indicator clearly doesn’t
measure the volume of trafficking in persons, it can monitor how certain popu‐
lation groups such as children and girls are over time exposed to trafficking.
Trafficking in persons is also explicitly addressed in Target 5.2 on the elimi‐
nation of all forms of violence against all women and girls in the public and
private spheres, including trafficking and sexual and other types of exploita‐
tion, and in Target 8.7 on taking immediate and effective measures to eradicate
forced labour, end modern slavery and human trafficking and secure the pro‐
hibition and elimination of the worst forms of child labour, including recruit‐
ment and use of child soldiers, and by 2025 end child labour in all its forms.
The fact that different SDGs make reference to trafficking in persons empha‐
sizes how this is a multifaceted phenomenon, with criminal, violence, human
rights, migration, labour and gender connotations10.
Currently, the available and country specific number of detected victims is
collected yearly from the Member States using a specific questionnaire. It is
published in the UNODC biennial Global Report on Trafficking in Persons.
Data are available for about 130 countries, since 2007. The data is disaggre‐
gated for age, sex and forms of exploitation. The estimated number of non‐
detected victims can be established by applying methodologies developed to
measure the estimated number of different hidden populations (e.g. Respon‐
dent Driven Sampling and Network Scale‐up Method). These methodologies
man Smuggling, Human Trafficking, and exploitation in the sex industry. The Oxford Hand‐
book of Organized Crime. (Oxford: Oxford University Press, 2014).
10 For the Global Report on Trafficking in Persons of 2016 see http://www.unodc.org/ docu‐
ments/data‐and‐analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf
217
have been tested with different forms of trafficking in persons.
Trafficking in persons has a negative impact particularly on women. Cur‐
rently, 70 % of detected victims of trafficking in persons are female: adult
women (49%) and girls (21%). The international community stressed this as‐
pect already when they adopted the international instrument to address traf‐
ficking which is titled: The UN Protocol to Prevent, Suppress and Punish Traf‐
ficking in Persons, especially Women and Children.
UNODC is the only international organization which is regularly collecting
and disseminating data on the number of detected victims of human traffick‐
ing at the global level. Selected data on specific forms of trafficking in persons
are collected and disseminated by ILO, UNICEF and UNHCR. Regional and
geographically defined data is collected by IOM and some regional organiza‐
tions such as EU. The Academia has developed a list of local studies assessing
the hidden part of trafficking for specific geographical areas and forms of ex‐
ploitation11. Almost a third of all humans traded around the world for the pur‐
pose of sexual slavery, forced labour, or commercial sexual exploitation are
children, and women and girls comprise 71 per cent of the victims of ʺhuman
traffickingʺ, according to a new report by the United Nations Office on Drugs
and Crime (UNODC).
The 2016 UNODC Global Report on Trafficking in Persons is the third of its
kind mandated by the General Assembly through the 2010 United Nations
Global Plan of Action to Combat Trafficking in Persons. It covers 136 countries
and provides an overview of patterns and flows of trafficking in persons at
global, regional and national levels, based primarily on trafficking cases de‐
tected between 2012 and 2014.
As UNODC has been systematically collecting data on trafficking in persons
for more than a decade, trend information is presented for a broad range of in‐
dicators. ʺTrafficking for sexual exploitation and for forced labour remain the
most prominently detected forms, but victims are also being trafficked to be
used as beggars, for forced or sham marriages, benefit fraud, or production of
pornography,ʺ said UNODC Executive Director Yury Fedotov in presenting
the report on December 21, 2016.
In terms of the different types of trafficking, sexual exploitation and forced
labour are the most prominent. But the global report shows that trafficking can
have numerous other forms including: victims compelled to act as beggars,
forced into sham marriages, benefit fraud, pornography production, organ re‐
moval12, among others. In response, many countries have criminalized most
forms of trafficking as set out in the UN Trafficking in Persons Protocol. The
number of countries doing this has increased from 33 in 2003 to 158 in 2016.
For “Target 16.2 : End abuse, exploitations, trafficking and all forms of violence against and
torture of children in “Goal 16 Promote peaceful and inclusive societies for sustainable devel‐
opment, provide access to justice for all and build effective, accountable and inclusive institu‐
tions at all levels”, (Updated on 3 March 2016) see https://unstats.un.org/sdgs/files/metadata‐
compilation/Metadata‐Goal‐16.pdf
12 Francis, P. L., Francis, G. J., “Stateless Crimes, Legitimacy, and International Criminal Law
: The Case of Organ Trafficking”, Criminal Law and Philosophy 4 (2010), pp. 283‐295.
11
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Such an exponential increase is welcomed and it has helped to assist the vic‐
tims and to prosecute the traffickers.
Unfortunately, the average number of convictions remains low. UNODC’s
findings show that there is a close correlation between the length of time the
trafficking law has been on the statute books and the conviction rate. This is a
sign that it takes time, as well as resources, and expertise to chase down the
criminals. Perhaps the 2016 Report’s main message is that inroads have been
made into this horrendous crime. We must, however, continue to generate
much needed cooperation and collaboration at the international level, and the
necessary law enforcement skills at the national and regional levels to detect,
investigate and successfully prosecute cases of trafficking in persons13.
The report found that while women and girls tend to be trafficked for mar‐
riages and sexual slavery, men and boys are typically exploited for forced la‐
bour in the mining sector, as porters, soldiers and slaves. While 28 per cent of
detected trafficking victims worldwide are children, in regions such as Sub‐
Saharan Africa, and Central America and the Caribbean children comprise 62
and 64 per cent of victims, respectively. UNODC Chief Fedotov emphasized
the link between armed groups and human trafficking, noting how armed
groups often engage in trafficking in their territories of operation, coercing
women and girls into marriages or sexual slavery, and pressing men and boys
to act as forced labour or combatants.
In this regard, 23‐year old Yazidi woman Nadia Murad Basee Taha, who
was formally appointed UNODC Goodwill Ambassador for the Dignity of
Survivors of Human Trafficking on September 16, 2016, has related her heart‐
breaking account of being enslaved by ISIL (Daʹesh) terrorists. She briefed the
Security Council in its first‐ever session on human trafficking in December
2015, describing how she was rounded up with fellow Yazidis in Iraq in 2014
and witnessing ISIL fighters shooting men and boys in cold blood. She was
subject to grave abuses at the hands of ISIL fighters and was bought and sold
various times.
At the induction ceremony in New York, Secretary‐General Ban Ki‐moon
recognized Nadiaʹs resolve to serve as a voice for the voiceless, noting that
ʺNadia survived horrific crimes. I cried when I heard her story. But I didnʹt
only cry out of sadness. I was also moved to tears because Nadia has so much
strength, courage, and dignity. She rightly calls for a world where all children
live in peace.ʺ This yearʹs report includes a thematic chapter focusing on the
connections between trafficking in persons, migration and conflict14.
For the Global Report on Trafficking in Persons of 2016 see http://www.unodc.org/ docu‐
ments/data‐and‐analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf
14 For the nexus between the refugee crisis and trafficking see Zaman, Κ., “Blocking the Trade
in Mode Services and its Impacts on the Ongoing Refugee Crisis and Migrant Trafficking,” Man‐
chester Journal of International Economic Law 13(3) (2016), pp. 389‐406, Pomeroy, M. “Left out
in the Cold: Trafficking Victims, Gender and Misinterpretation of the Refugee Convention’s
Nexus Requirement”, Michigan Journal of Gender and Law 16 (2010), p. 453, Squillante, D.,
“Single, Young, Female‐seeking Asylum: The Struggles Victims of Sex Trafficking Face under
Current United States Refugee Law”, St. John’s Law Review 88 (2015), p. 223.
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ʺPeople escaping from war and persecution are particularly vulnerable to
becoming victims of trafficking,ʺ said Fedotov. ʺThe urgency of their situation
might lead them to make dangerous migration decisions. The rapid increase in
the number of Syrian victims of trafficking in persons following the start of the
conflict there, for instance, seems to be one example of how these vulnerabili‐
ties play outʺ, he added.
Perhaps the most worrying development is that the movement of refugees
and migrants, the largest seen since World War II, has arguably intensified
since 2014. As this crisis has unfolded, and climbed up the global agenda, there
has been a corresponding recognition that, within these massive migratory
movements, are vulnerable children, women and men who can be easily ex‐
ploited by smugglers and traffickers.
Data included in the report reveal that trafficking in persons and regular
migration flows broadly resemble each other for some destination countries in
different parts of the world. Factors that increase vulnerability to human traf‐
ficking during the migration process include the presence of transnational or‐
ganized crime in the country of origin, and a personʹs socio‐economic profile.
The report also includes information on the multitude of trafficking flows,
including within countries, between neighbouring countries or even across dif‐
ferent continents. More than 500 different examples of these flows were de‐
tected between 2012 and 2014. The report refers to trafficking victims from
countries in Sub‐Saharan Africa and East Asia, who are traded to a wide range
of destinations. A total of 69 countries were reported to have detected victims
from Sub‐Saharan Africa in this same period.
Most countries have passed legislation that criminalizes trafficking in per‐
sons as a specific offence; many have done so recently. The Global Report
shows that there is a relation between how long a country has had proper traf‐
ficking legislation on its books, and how many convictions it reports. Countries
with longer‐standing legislation record, on average, more convictions. ʺThat
said, the overall criminal justice response to trafficking in persons, which has
historically been very weak, has not improved significantlyʺ, notes the report.
ʺSome one hundred and fifty‐eight, or eighty‐eight per cent, of countries have
criminalized human trafficking, in line with the Protocol [to Prevent, Suppress
and Punish Trafficking in Persons]ʺ, said Fedotov. ʺThis is a huge improve‐
ment since 2003, when only eighteen per cent of countries had such laws on
their books. Nevertheless, as we highlighted in the last report, the rate of con‐
victions remains far too low, and victims are not always receiving the protec‐
tion and services countries are obliged to provide.ʺ
The UNODC Chief stressed that more resources clearly need to be devoted
to identify and assist trafficking victims, as well as improve criminal justice re‐
sponses to detect, investigate and successfully prosecute cases. The report,
produced by UNODC every two years, reinforces the link between tackling
this crime and achieving the 2030 Agendaʹs Sustainable Development Goals.
On the New York Declaration adopted at the Summit for Refugees and Mi‐
grants in September 2016 it was further stressed what we already mentioned,
that refugees and migrants in large movements were at risk of being trafficked,
220
and that states needed to combat human trafficking and migrant smuggling as
part of comprehensive responses to development and migration15. The nexus
between refugee/migration flows and trafficking is very intense.
According to the 2016 Report on the progress made in the fight against traf‐
ficking in human beings, there is strong evidence that the migration crisis has
been exploited by criminal networks involved in trafficking in human beings
to target the most vulnerable, in particular women and children. As an exam‐
ple, recent IOM estimates show a sharp increase by 600% since 2014 in the
number of potential victims of trafficking for sexual exploitation arriving to It‐
aly through the Central Mediterranean route. Victims are predominantly Nige‐
rian women and girls. In this context, there is a clear need to support the inte‐
gration of victims of trafficking who are third‐country nationals and who are
residing legally in a Member State or, where appropriate, who are in the proc‐
ess of acquiring legal residence in a Member State, including beneficiaries of
international protection16.
Concerning the legal framework, trafficking in persons was defined interna‐
tionally17 for the first time in article 3 of the Protocol to Prevent, Suppress and
Punish Trafficking in Persons, especially Women and Children, as constituting
three elements (as mentioned and above): (a) an “action”, being recruitment,
transportation, transfer, harbouring or receipt of persons; (b) a “means” by
which that action is achieved, for example threat or use of force, or other forms
of coercion, abduction, fraud, deception, abuse of power or a position of vul‐
nerability and the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person; and (c) a “purpose” of
the intended action or means, namely exploitation. Thus, consent of the victim
to the intended exploitation is irrelevant when any of the listed means have
been used. All three elements must be present to constitute “trafficking in per‐
sons” in international law. The only exception is that when the victim is a
child, the “means” element is not part of the definition.
About trafficking in human beings there is international, European and na‐
tional legislation18. In this context we will examine the international legal
framework. At a UN level, there are the United Nations Convention against
Transnational Organized Crime and the Protocol to prevent, suppress and
Ramachandran, J., Children and Women Main Human Trafficking Targets, https://www.
sdgsforall.net/index.php/goal‐16/239‐children‐and‐women‐main‐human‐trafficking‐targets‐says‐
un. Global Report on Trafficking in Persons of 2016, http://www.unodc.org/documents/data‐and
analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf.
16 https://ec.europa.eu/anti‐trafficking/legislation‐and‐case‐law/international‐legislation_en
17 For the examination of the international conventions about trafficking see, among others,
Tavakoli, N., “A Crime that Offends the Conscience of Humanity: A Proposal to Re‐classify Traf‐
ficking in Women as an International Crime”, International Criminal Law Review 9 (2009), pp.
77‐98.
18 For the international and european legal framework about trafficking see Magliveras K. D.,
Combating Trafficking in persons. The Role and Action of International Organisations. (Athens‐
Komotini: Ant. N. Sakkoulas Publishers, 2007), Seaman, L. A., “Permanent Residency for Human
Trafficking Victims in Europe: The Potential Use of Article 3 of the European Convention as a
Means of Protection”, Columbia Journal of Transational Law 48(2) (2010).
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punish trafficking in persons, especially women and children, supplementing
the United Nations Convention against transnational organized crime, (2000).
Very important in a general context are also the C29 Forced Labour Conven‐
tion, (1930), the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW), the Model Law against Trafficking in Persons, the
1921 International Convention for the Suppression of the Traffic in Women
and Children, the United Nations 1956 Supplementary Convention on the
Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to
Slavery, the Convention for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others, (1951) and the 1926 Slavery Conven‐
tion. At the level of the Council of Europe level, it is the Convention on Action
against Trafficking in Human Beings (2005) and many compendia of good
practices, the newest of which is the Compendium of good practices on the
implementation of the Council of Europe Convention on Action against Traf‐
ficking in Human Beings, 2016.
The legal framework is rich, but what do we know about the victims’
rights? Victims of trafficking have the right to assistance, protection and sup‐
port. It is abundantly clear that States are indeed required to provide immedi‐
ate assistance and support to victims of trafficking within their jurisdiction and
to protect them from further harm. The provision of immediate assistance, pro‐
tection and support should not be conditional on the capacity or willingness of
the victim to cooperate with criminal justice agencies. In 2009, the Special Rap‐
porteur devoted a thematic report to the issue of victim identification19, protec‐
tion and assistance, affirming the key responsibilities of States in this regard
and identifying ways in which these obligations can be effectively met in prac‐
tice. Victim identification is fundamental to the realization of victim rights. By
not identifying victims swiftly and accurately States effectively and perma‐
nently deny victims the rights to which they are legally entitled. Both mandate
holders have drawn attention to the failure of criminal justice systems to iden‐
tify trafficking victims, who instead are often arrested, detained, charged and
prosecuted for entering a country and working irregularly, or engaging in
prostitution. As noted by the Special Rapporteur, “victims are simply treated
as criminals and are arrested and deported with no opportunity to be identi‐
fied and provided with the necessary assistance as trafficked victims”20.
No prosecution and no punishment must be accepted standards. The accep‐
tance that victims of trafficking should not be punished – or indeed prosecuted
– for offences that have been committed in the course of their trafficking, such
as immigration and work offences has grown. The Special Rapporteur has
regularly upheld the importance of this principle9 and endorses the now wide‐
Richards, K., Lyneham, S., Help‐seeking Strategies of Victims/Survivors of Human Traf‐
ficking Involving Partner Migration. Trends and Issues in Crime and Criminal Justice, Austra‐
lian Institute of Criminology, 468 (2014). Available at http://www.aic.gov.au/publications/ cur‐
rent%20series/tandi/461‐480/tandi468.html
20 United Nations A/HRC/26/37, General Assembly, Human Rights Council, Report of the
Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo, 1
April 2014.
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spread position that States should not prosecute or punish victims “for unlaw‐
ful acts committed by them as a direct consequence of their situation as traf‐
ficked persons or where they were compelled to commit such unlawful acts”.
The obligation to provide remedies –or at least access to remedies– to vic‐
tims of trafficking is set out in a number of relevant instruments and has been
widely recognized by United Nations bodies and regional courts. Its essence is
captured in principle 1 of the draft basic principles on the right to an effective
remedy for trafficked persons: “Trafficked persons as victims of human rights
violations have the right to an effective remedy for harms committed against
them.”
The Special Rapporteur has recognized four substantive components of the
right to a remedy that are applicable in cases of trafficking in persons. They are
captured in principle 4 of her draft basic principles: “In substance, trafficked
persons should be provided with adequate reparations for the harms suffered,
which may include restitution, compensation, recovery, satisfaction and guar‐
antees of non‐repetition.” Compensation is of critical importance to victims of
trafficking who are likely to have suffered significant harm and lost valuable
opportunities. Too often, victims of trafficking are treated as instruments of
criminal investigations, rather than as rights holders with a legal entitlement to
protection, support and remedies. In her report to the General Assembly in
2009, the Special Rapporteur affirmed her position that “administration of jus‐
tice systems must be geared towards guaranteeing access to justice to victims,
providing an effective remedy, promoting respect for the fundamental human
rights of victims, including offenders, and ensuring adequate protection and
assistance to victims of trafficking21 in order to prevent revictimization and
avoid the danger of being retrafficked”.
It is important to have a comprehensive approach to combating modern day
slavery22. The key challenge in combating human trafficking and slave labor,
says Irlakis Moskoff, Greek National Rapporteur on Trafficking in Human Be‐
ings, Greek Ministry of Foreign Affairs , is that “we are trying to deal with a
crime that is unrecorded.” The issue, he argues, must go beyond law enforce‐
ment and truly engage society as a whole.
The international community has without doubt made progress in bringing
awareness to human trafficking. Countries across the globe have signed decla‐
rations and ratified the legal instruments needed to take action. However, traf‐
ficking of persons cannot be addressed as only a crime, but rather it must be
seen as a phenomenon. Legal action is necessary, but not sufficient. In order to
make greater strides, public perception must be changed as well.
Unfortunately, nowadays public fear is plaguing migration and trafficking
issues, causing countries to treat migrants as threats instead of as victims. Mi‐
IOM, Evaluation of the Effectiveness of Measures for the Integration of Trafficked Persons,
(Paris, International Organization for Migration (IOM), 2013), also available at http:// publica‐
tions.iom.int/books/evaluation‐effectiveness‐measures‐integration‐trafficked‐persons
22 Scarpa S., Trafficking in Human Beings: Modern Slavery. (Oxford, New York: Oxford Uni‐
versity Press, 2008), Siddharth, K., Sex Trafficking: Inside the Business of Modern Slavery. (Ath‐
ens: Asvos Publications, 2010).
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gration has gained attention as a threat to peace and national security, but not
as much as a human rights issue. Migrants are more susceptible to be exploited
and women especially are more likely to be traded as a commodity23.
A few days ago we celebrated the Anti‐Slavery Day. 18th October, provides
an opportunity to raise awareness of human trafficking and modern slavery,
and encourage government, local authorities, companies, charities and indi‐
viduals to do what they can to address the problem. It was created by the Anti‐
Slavery Day Act 2010, which is an Act to introduce a national day to raise
awareness of the need to eradicate all forms of slavery, human trafficking and
exploitation; and for connected purposes.
According to this Act “The purpose of Anti‐Slavery Day shall be to— (a) ac‐
knowledge that millions of men, women and children continue to be victims of
slavery, depriving them of basic human dignity and freedom; (b) raise aware‐
ness amongst young people and others of the dangers and consequences of
slavery, human trafficking and exploitation and encourage them to be proac‐
tive in the fight against it; (c) draw attention to— (i) the progress made by gov‐
ernment and those working to combat all forms of slavery, human trafficking
and exploitation, and (ii) what more needs to be done. (3) In this Act “slavery”
includes— (a) trafficking for sexual exploitation, (b) child trafficking, (c) traf‐
ficking for forced labour, and (d) domestic servitude.”24
To mark the 11th EU Anti‐Trafficking Day, the European Commission
called for a renewed commitment to eradicating trafficking in human beings.
Commissioner for Migration, Home Affairs and Citizenship Dimitris
Avramopoulos said: ʺEvery day, women and girls, men and boys, EU and non‐
EU citizens, are exploited by unscrupulous traffickers for profit. On EU Anti‐
Trafficking Day, we are reminded of the gravity of this heinous crime, which
often has strong links with cross‐border organised crime and takes advantage
of irregular migration routes. It is imperative that all authorities and stake‐
holders strengthen their work on prevention by untangling the complex chain
of trafficking, reducing demand, following the money and ensuring better ac‐
cess to justice for the victims. We stand ready to further support our Member
States and cooperate more closely with our international partners in working
towards eradicating trafficking in human beings.ʺ The Commission will
shortly publish its priority actions to address trafficking in human beings.
These will build on the ongoing work, taking stock of the achievements of the
EU strategy 2012‐2016 and ensuring the continuation of efforts, including co‐
ordination with stakeholders and increasing the knowledge base25.
The European Commission has put forward a list of concrete actions to bet‐
Greek National Rapporteur on Trafficking in Human Beings, Greek Ministry of Foreign Af‐
fairs, Speech “Addressing Modern Day Slavery: The Human Security Perspective”, Bologna In‐
stitute for Policy Research.
24 Anti‐Slavery Day Act 2010, available at http://www.legislation.gov.uk/ukpga/2010/14/pdfs/
ukpga_20100014_en.pdf
25
https://ec.europa.eu/home‐affairs/news/eu‐anti‐trafficking‐day‐stronger‐action‐needed‐
fight‐trafficking‐human‐beings_en
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ter prevent the trafficking in human beings. Building on the EU‐Strategy 26 and
in light of recent migratory, economic and security challenges, the priorities set
out by the Commission identify key areas that require immediate action from
the EU and the Member States to disrupt the modus operandi of traffickers,
strengthen victimsʹ rights and intensify internal and external efforts. Commis‐
sioner for Migration, Citizenship and Home Affairs Dimitris Avramopoulos
said:
“It is not acceptable that in the 21st‐century human beings are still being
trafficked as commodities and exploited – not in Europe, not anywhere.
Over the years the EU has developed legal and operational tools against this
heinous crime. But more needs to be done as the migration crisis and trans‐
national security threats have rendered people more vulnerable to criminal
networks and exploitation. I call on all Member States to urgently step up
their investigations and prosecutions against ruthless trafficking criminals,
better protect the victims and fully apply the EU rules towards their protec‐
tion. I also call on all to work more closely with international partners. Hu‐
man trafficking is not just a European problem – we must do everything to
eradicate it everywhere it happens.ʺ
The Commission will monitor progress on the actions set out in
the Communication that was presented and report on progress to the Euro‐
pean Parliament and the Council by the end of 201827. On the 4th of December
2017 was published the “Communication from the Commission to the Euro‐
pean Parliament and the Council‐Reporting on the follow‐up to the EU Strat‐
egy towards the Eradication of trafficking in human beings and identifying
further concrete actions”28. This Communication sets out key actions that need
to be stepped up by the Commission and the Member States, including coop‐
eration with EU agencies, civil society, non‐EU countries and all other relevant
organizations and bodies.
As traffickers’ modus operandi is constantly evolving, the EU needs to
tackle the links between trafficking in human beings and other crimes, includ‐
ing migrant smuggling, terrorism, corruption, drug trafficking, cybercrime and
online sexual exploitation, production of material involving the sexual abuse of
children, financial crime, document fraud, credit card fraud, and benefit
fraud29. Trafficking in human beings is a priority crime threat area in the 2018‐
2021 EU Policy Cycle on Organized and Serious International Crime. In addi‐
tion, the political commitment to stepping up EU action against trafficking in
European Commission, The EU Strategy towards the Eradication of Trafficking in Human
Beings 2012–2016, available at http://ec.europa.eu/anti‐trafficking/sites/antitrafficking/files/the_
eu_strategy_towards_the_eradication_of_trafficking_in _human_beings_2012‐2016_1.pdf
27 https://ec.europa.eu/anti‐trafficking/legislation‐and‐case‐law/international‐legislation_en
28 COM (2017) 728 final, available at https://ec.europa.eu/home‐affairs/sites/homeaffairs
/files/e‐library/documents/policies/organized‐crime‐and‐human‐trafficking/trafficking‐in‐human
‐beings/docs/20171204_communication_reporting_on_follow‐up_to_the_eu_strategy_towards_
the_eradication_of_trafficking_in_human_beings.pdf
29 COM (2016) 267 final; COM(2017) 195 final; Europol’s Internet Organized Crime Threat
Assessment (IOCTA) 2016, EU Serious and Organized Crime Threat Assessment (SOCTA) 2017
and Situation Report, Trafficking in Human Beings in the EU (2016).
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225
human beings, within the EU and around the world, is supported by the
Global Strategy on the European Union’s Foreign and Security Policy (EUGS)
and by relevant EU strategies and action plans and European Parliament reso‐
lutions30.
Starting in 2018, the Commission will: further encourage those EU Member
States, to the extent they have not done so, to criminalize those knowingly us‐
ing services exacted from victims of trafficking. As of 2018, the Commission
will: a) encourage and assist EU national authorities in their concrete initiatives
to disrupt the financial business model by developing operational activities
and methodologies, following good practice, raising awareness, capacity build‐
ing and providing training as relevant; b) encourage and assist Member States
to make investigations and prosecutions more effective through capacity build‐
ing, development of tools, information exchange, sharing best practice, law en‐
forcement and judicial cooperation, including promoting the setting up of Joint
Investigation Teams both within the EU and with non‐EU countries.
This can be done with the support of the relevant EU agencies, the Euro‐
pean Judicial and Training Network and the European Crime Prevention Net‐
work as well as internationally, including through the EU development pro‐
grammes and the actions under the Common Foreign and Security Policy; c)
promote sustainable business practices and working conditions in production
countries. This can be done by focusing on development cooperation and fi‐
nancial support to ensure trafficking‐free supply and value chains in line with
binding international labour, social and environmental standards as well as EU
policies and initiatives; d) promote best practice and training sessions with
relevant national authorities, businesses and civil society, especially on apply‐
ing the guidelines on the methodology for reporting non‐financial information
that includes trafficking in human beings.
From the end of 2017, the Commission will: a) publish, in cooperation with
the European Institute for Gender Equality, guidance to Member States on
gender‐specific measures for helping and supporting victims; b) develop, in
cooperation with the European Agency of Fundamental Rights, practical guid‐
ance to enhance inter‐agency and transnational cooperation aiming to prevent
child trafficking of EU children, ensure protection of child victims, find dura‐
ble solutions and safeguard their rights under EU and international law; c) re‐
view the functioning of the Member States’ national and transnational referral
mechanisms; d) focus on capacity building to improve cooperation by means
of EU border and migration management tools for detecting, identifying and
sharing information and data on victims of trafficking and traffickers; e) advise
national authorities on key concepts relating to trafficking in human beings, to
help improve operational work, policy development, data comparability and
https://ec.europa.eu/home‐affairs/sites/homeaffairs/files/e‐library/documents/policies/ or‐
ganized‐crime‐and‐human‐trafficking/trafficking‐in‐human‐beings/docs/20171204_ communica‐
tion_reporting_on_follow‐up_to_the_eu_strategy_towards_the_eradication_of_trafficking_in_
human_beings.pdf
30
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reporting31.
From the end of 2017, the Commission will also: together with the Member
States and the European External Action Service, review and identify the prior‐
ity countries and regions for action against trafficking in human beings, ensur‐
ing consistency and complementarily with the priorities and programming
identified in all fields of international engagement, and in particular in migra‐
tion, security and human rights areas; work towards achieving Agenda 2030
Sustainable Development Goals with particular attention to targets 5.2, 8.7 and
16.2 addressing trafficking in human beings, in line with the European Con‐
sensus on Development;32 promote a renewed commitment by EU Justice and
Home Affairs agencies to working together against trafficking with the in‐
volvement of further relevant agencies; ensure that the components of the
European Union—United Nations Spotlight Initiative to eliminate violence
against women and girls that relate to trafficking in human beings are imple‐
mented; ensure that the measures relating to trafficking in human beings in‐
cluded in the Joint Staff Working Document ‘EU’s activities on gender equality
and women’s empowerment in the EU’s external relations’ are implemented;
ensure that the commitments made under the Call to Action on Protection
from Gender‐Based Violence in Emergencies are met, including assigning hu‐
manitarian aid specifically to supporting prevention of and responses to gen‐
der‐based violence.
From 2018, the Commission will: publish a study on the economic, social
and human costs of trafficking; publish a study on the impact of the EU ap‐
proach to combating trafficking for sexual exploitation, and promote the shar‐
ing of best practice among EU countries; publish, in the next Commission Pro‐
gress Report, the latest criminal justice statistics on the EU situation as regards
trafficking in human beings, with support from Eurostat, the national statisti‐
cal authorities and the EU Network of National Rapporteurs and Equivalent
Mechanisms; launch an EU‐wide awareness‐raising campaign on trafficking in
human beings, targeting users, consumers, and vulnerable groups and high‐
risk sectors33.
In the conclusions of the 04.12.2017 Communication we read the following
“Progress has been made in the consolidation of the EU work against traffick‐
ing in human beings. However, since the phenomenon has continued to
evolve, EU action to combat trafficking in human beings34, both within and be‐
https://ec.europa.eu/home‐affairs/sites/homeaffairs/files/e‐library/documents/policies/ or‐
ganized‐crime‐and‐human‐trafficking/trafficking‐in‐human‐beings/docs/20171204_ communica‐
tion_reporting_on_follow‐up_to_the_eu_strategy_towards_the_eradication_of_trafficking_in_
human_beings.pdf
32 New European Consensus on Development ‐‘Our world, our dignity, our future’, 2017/C
210/01.
33 https://ec.europa.eu/home‐affairs/sites/homeaffairs/files/e‐library/documents/policies/ or‐
ganized‐crime‐and‐human‐trafficking/trafficking‐in‐human‐beings/docs/20171204_ communica‐
tion_reporting_on_follow‐up_to_the_eu_strategy_towards_the_eradication_of_trafficking_in_
human_beings.pdf
34 Arlacchi, P., “Time has Come to Abolish the New Slavery,” in Human Trafficking, Smug‐
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yond the EU, needs to be stepped up35. This Communication therefore identi‐
fies a set of targeted cross‐cutting priorities for a stronger response, to be fol‐
lowed up by all relevant authorities and organizations in a more coordinated
and consolidated manner starting as of end of 2017. Member States should use
all the ambitious tools available to them to implement the measures agreed on
at EU level without delay. The Commission will monitor progress on the ac‐
tion set out in this Communication and report on progress to the European
Parliament and the Council by end of 2018”.
On the 18th of October (Anti‐Trafficking Day) was also published the “Re‐
port concerning the implementation of the Council of Europe Convention on
Action against Trafficking in Human Beings by Greece ‐First evaluation
round”36 A delegation of the Council of Europeʹs Group of Experts on Action
against Trafficking in Human Beings (GRETA) carried out an evaluation visit
to Greece from 3 to 7 October 2016. The visit was organised in the context of
the first round of evaluation of the implementation by Greece of the Council of
Europe Convention on Action against Trafficking in Human Beings.
During the visit, the GRETA delegation met the National Rapporteur on
Trafficking in Human Beings, Mr Heracles Moskoff, of the Ministry of Foreign
Affairs, as well as officials from the Hellenic Police, including representatives
of the specialised anti‐trafficking departments in Athens and Thessaloniki, the
Asylum Service, the Reception and Identification Service, the General Secre‐
tariat for Gender Equality, the National Centre for Social Solidarity (EKKA),
the Labour Inspectorate (SEPE), the Ministry of Justice, Transparency and
Human Rights, the Ministry of Education, and the Institute of Child Health
under the Ministry of Health. Meetings were also held with prosecutors and
judges. Further, the GRETA delegation met representatives of the Ombuds‐
man’s Office and members of the recently set‐up sub‐committee against traf‐
ficking in human beings of the Hellenic Parliament.
Separate meetings were held with representatives of non‐governmental or‐
ganisations (NGOs), lawyers, the trade union Centre of Athens Labour Unions
(EKA), and officials from the local offices of the International Organization for
Migration (IOM) and the United Nations High Commissioner for Refugees
(UNHCR). In the course of the visit, the GRETA delegation visited a special‐
ised shelter for women victims of human trafficking run by the NGO A21, two
shelters for women victims of violence, including human trafficking, run re‐
spectively by the municipality of Athens and EKKA, a state‐run accommoda‐
tion centre for unaccompanied minors in Thessaloniki, a shelter for unaccom‐
panied minors run by the NGO Praksis, and the refugee sites Eleonas in Ath‐
gling and Illegal Immigration, NATO Science for Peace and Security Series, Vol. 79, (IOS Press,
2011).
35 For the variety of factors that are responsible for the low numbers of convictions of the
criminals of trafficking see Atak, I., James, S., Human Trafficking‐Mapping the Legal Boundaries
of International Refugee Law and Criminal Justice” Journal of International Criminal Justice
12(1) (2014).
36 Available at https://rm.coe.int/greta‐2017‐27‐fgr‐gre‐en/168075f2b6
228
ens and Diavata in Thessaloniki37.
From its concluding remarks we are informed that “The Greek authorities
have taken a number of measures to combat trafficking in human beings and
support its victims, through the adoption of relevant legislation, the setting up
of co‐ordinating and specialized structures, the provision of training of rele‐
vant professionals and general awareness raising. The involvement of civil so‐
ciety is an important aspect of Greece’s response to human trafficking and the
development of further partnerships is crucial for the human rights‐based ap‐
proach to anti‐trafficking action.
While GRETA acknowledges the important steps taken by the Greek au‐
thorities so far, a number of challenges remain to be tackled through legisla‐
tive, policy or practical measures in order to meet the requirements of the hu‐
man rights‐based approach outlined in paragraphs 38‐43. GRETA calls on the
Greek authorities to continue to improve the identification of victims of traf‐
ficking and to ensure that all presumed and identified victims, including men,
can benefit from the assistance and protection measures provided for under
the Convention. The formalization of the National Referral Mechanism is a
step in the right direction and its effective implementation needs to be ensured,
including by providing it with adequate funding and promoting a multi‐
agency approach. The identification of victims of trafficking must not depend
on the presumed victim’s statement and cooperation in the investiga‐
tion/criminal proceedings and the process of granting victim status needs to be
speeded up.
The provision in law of a recovery and reflection period longer than the
minimum of 30 days envisaged in the Convention is a welcome decision, but a
broader use of this period will help presumed victims to recover and be better
prepared to assist the investigation. Efforts should also be strengthened to en‐
sure that victims of trafficking have effective access to compensation and can
take full advantage of the right to be granted a temporary residence permit, in
particular when they are unable to co‐operate with the authorities.
The Convention requires Parties to ensure that anti‐trafficking action is
comprehensive. GRETA stresses the need for adopting a national anti‐
trafficking action plan and/or strategy which addresses all victims of traffick‐
ing for all forms of exploitation, including sexual exploitation, forced labour,
exploitative sham marriages, illegal adoption, forced criminality, and the re‐
moval of organs, tissues and cells, while taking into account the gender‐
dimension of trafficking and the particular vulnerability of children.
In the area of prevention, the efforts to raise awareness of human trafficking
among the general public must be combined with targeted measures for
groups and persons particularly vulnerable to human trafficking, including
women, asylum seekers, irregular migrants, unaccompanied children and
children in street situations. Strengthening the effectiveness of investigations
and prosecutions with a view to securing proportionate and dissuasive convic‐
tions for human trafficking offences for all types of exploitation is another area
37
https://www.coe.int/en/web/anti‐human‐trafficking/greece
229
where further action is required. There have been very few convictions for
human trafficking for the purpose of labour exploitation and GRETA draws at‐
tention to the need to increase the number of cases prosecuted in this area.
All professionals who may come into contact with victims of human traf‐
ficking, including law enforcement officials, prosecutors, judges, labour inspec‐
tors, social workers, staff of reception centres for asylum seekers and migrants,
lawyers, health‐care staff and staff working with children, must be continu‐
ously informed and trained about the need to apply a human rights‐based ap‐
proach to action against human trafficking on the basis of the Convention and
the case law of the European Court of Human Rights38.
GRETA invites the Greek authorities to keep it informed on a regular basis
of developments in the implementation of the Convention and looks forward
to continuing the co‐operation in achieving the purposes of the Convention.”39
And the question nowadays is “Are we going to reach the sustainable goal
16 until 2030?” or otherwise the question maintains “Are we going to achieve
to combat human trafficking and demand, which is the ability and willingness
to purchase a good or service, which is a product of human trafficking?” It is
said that “If murder is the father of crimes, the mother is human trafficking”.
And the true concerning trafficking is unfortunately this cynical phrase of a
trafficker, which reveals the vital role of demand: “When they will stop buy‐
ing, I will stop selling”.
For the screening of victims of trafficking and the cooperation with law enforcement agen‐
cies see “The IOM Handbook on Direct Assistance for Victims of Trafficking”, IOM, 2007.
39 https://rm.coe.int/greta‐2017‐27‐fgr‐gre‐en/168075f2b6 pp. 55‐56.
38
Sustainable production and consumption
under the UN Goals
Eirini Giannaki
Researcher at the Hellenic Institute on United Nations Affairs
1. Introduction
We all know how much human impact the minimum time it has on the
planet, in relation to the greenhouse effect and the effects of climate change.
This awareness, in real time, required a 30‐year consultation process within the
UN framework to lead the world community in September 2015 to adopt the
17 Global Objectives for Sustainable Development1 and three months later in
December 2015, in the signing of the Paris Agreement to take action to keep the
global temperature rise at 2 degrees Celsius2. In fact, in order to achieve this,
we need to urgently reduce our ecological footprint, in other words, change
the way we produce and consume resources and goods.
The Global Objective of Sustainable ‐ Responsible Consumption and Pro‐
duction may be another way of saying that the ʺlinear economyʺ model that
has accompanied us all these years, especially from the period of the Industrial
Revolution and then into the logic of ʺI get, I make , I throwʺ need change. Sus‐
tainable production and consumption involves promoting resource and energy
efficiency, promoting sustainable infrastructure and access to basic services
such as green and decent jobs, thus aiming for a more quality life for all. Its
implementation helps to achieve overall development plans, thereby reducing
economic, environmental and social costs in the future, while enhancing eco‐
nomic competition while helping to reduce poverty.
2. But what is sustainable production and consumption?
Sustainable consumption and production3 means the use of natural re‐
sources and energy in a more efficient way, as well as the reduction of green‐
house gas emissions and other environmental impacts. It is essentially the pro‐
duction and use of products and services in such a way as to minimize the
burden on the environment. The ultimate goal is to meet our basic needs for
goods and services while improving our quality of life and leaving sufficient
resources for future generations.
Sustainable consumption is about our lifestyle, our purchasing habits, and
the way we use and sell our products and services. Sustainable production fo‐
“Sustainable Development Goals”, http://www.un.org/sustainabledevelopment/sustainable‐
development‐goals/
2 “The Paris Agreement”, accessed September 29, 2017, http://unfccc.int/paris_agreement/
items/9485.php
3 “Goal 12: Ensure sustainable consumption and production patterns”, http://www.un.org/
sustainabledevelopment/sustainable‐consumption‐production/
1
231
cuses on reducing the environmental impact of production processes and de‐
signing better products. Sustainable production and consumption aims at
achieving energy efficiency and sustainable structures, as well as access to ba‐
sic services and green jobs. Explicitly, responsible consumption and produc‐
tion are aimed at ensuring a better quality of life for all people, involving vari‐
ous actors, such as consumers, researchers, scientists, retailers, the media. etc.
By 2030, 12th goal seeks the following according to the UN4: (i) Sustainable
management and adequate use of natural resources, (ii) Halve food production
halved at international level, (iii) Proper management of chemicals and other
wastes throughout their life cycle, as well as control of their discharge into soil,
water and air in order to address the effects on human health and the envi‐
ronment, (iv) Substantial reduction of waste generation through the implemen‐
tation of prevention, recycling and re‐use, (v) To inform and sensitize all peo‐
ple in terms of sustainable development, and to adopt a lifestyle that develops
in harmony with nature, (vi) Rationalize unprofitable subsidies for fossil fuels
to stop uncontrolled consumption and environmental impacts.
For people to live in a sustainable way, the natural resources of the Earth
must be used at a rate that can be renewed. However, modern consumer soci‐
ety is putting enormous pressure on the planet. Economic growth and the de‐
velopment of modern technologies have allowed us to enjoy new comforts in
our everyday life for many decades, resulting in a constantly increasing de‐
mand for products and services and, consequently, for energy and resources.
Many of the environmental problems we face today, such as global warming,
pollution, exhaustion of natural resources and loss of biodiversity, are due to
the way we produce and consume.
The impact of our consumer habits is felt across the globe: Non‐viable
modes of consumption and production are increasingly affecting the natural
environment, society, the economy and business. We must learn to live in a
more sustainable way. This means we have to get more results with fewer re‐
sources. The quality of our lives, prosperity and economic growth depend on it
our ability to learn to live on the basis of available resources. We must, there‐
fore, change the way we design, produce, use and distribute products. To
achieve this change we need the participation of all our people, households,
businesses, local authorities and national governments as well as the global
community.
3. How does the EU understand sustainable development;
Europeʹs environmental footprint, undoubtedly, is one of the largest on the
planet. If the rest of the world lived like the Europeans, it would need the re‐
sources of more than two planets like Earth to survive all. Sustainable devel‐
opment is one of the key objectives of the European Union5. As we are con‐
“Goal 12 targets”, http://www.un.org/sustainabledevelopment/sustainable‐consumption‐
production/
5 “European sustainable consumption and production policies”, http://ec.europa.eu/envi‐
4
232
fronted with a global shortage of natural resources, the main challenge for
producers and consumers is now ʺmore results with fewer meansʺ. To meet
this challenge, the EU has introduced a whole range of policies and initiatives
aimed at sustainable consumption and production.
Much can be done to make consumption and production in Europe more
sustainable without additional costs and benefits for businesses and house‐
holds. Recognizing the urgent need to move towards more sustainable econo‐
mies and sustainable lifestyles, the European Union and its Member States are
taking appropriate measures. The European Commission has already pre‐
sented an Action Plan on Sustainable Consumption and Production and Sus‐
tainable Industrial Policy6.
This Action Plan aims to improve the overall environmental performance of
products throughout their life cycle, to promote and stimulate demand for bet‐
ter products and production technologies and to help consumers make better
choices. The Action Plan also encourages the Community industry to exploit
the opportunities presented for innovation in order to keep the EUʹs top envi‐
ronmental performance.
The action plan builds on existing approaches such as legislation on the de‐
sign of energy‐using products, labeling systems, environmental management
systems and incentives for the purchase of environmentally‐friendly products
by citizens and public authorities, which it complements by providing for at
the same time new actions where there are gaps, aiming at the integrated co‐
ordination of all approaches. The Action Plan also seeks ways to promote sus‐
tainable production and consumption at international level.
The EUʹs Sustainable Consumption and Production7 measures focus on four
key objectives: better products, smarter consumption, lighter and cleaner pro‐
duction, and support for efforts at a global level. Concluding todayʹs presenta‐
tion we have to say we are increasingly realizing that in this way of life we are
mortgaging the future of ours and our children. The point we are in is not
without a return, but to change the grim picture requires a concerted effort by
everyone: states, local government, and civil society.
The beginning can be done by us, changing our everyday habits. The active
citizen is a responsible citizen and consumer. It consumes today, but it also
thinks tomorrow. That is why it applies the principles of sustainable consump‐
tion on a daily basis.
ronment/eussd/escp_en.htm
6 “Sustainable consumption and production Action Plan”, http://ec.europa.eu/environ‐
ment/eussd/escp_en.htm
7 “EU’s implementation of the sustainable development goals (SDGs)”, http://ec.europa.
eu/environment/sustainable‐development/SDGs/implementation/index_en.htm
Sustainable medical and thermal tourism
Anastasia Rentifi
Researcher at the Hellenic Institute on United Nations Affairs
1. Introduction
Medical tourism, where patients travel overseas for operations, has grown
rapidly the past two decades. The term refers to cross‐border health care moti‐
vated by lower cost, avoidance of long wait times, or services not available in
one’s own country. Such care is increasingly linked with tourist activities to
ease foreign patients into a new cultural environment and to occupy them dur‐
ing the pre‐ and post‐operative periods. The rise of medical tourism empha‐
sizes the privatilisation of health care, the growing dependence on technology
and the accelerated globalization of both health care and tourism1.
Proponents claim that growth of medical tourism will have positive eco‐
nomic and development impacts on destination countries. Skeptics raise con‐
cerns about patient safety, ethics of specific care (notably ‘reproductive’ or
‘transplant tourism’), and growth of private markets in developing countries at
the expense of adequately staffed and resourced public systems2.
Medical and health tourism have emerged as one of the fastest growing ar‐
eas of academic research interest in both tourism and health studies. However,
travel for health reasons is nothing new and has long been recorded as a driver
of visitors to thermal springs and coastal. There has clearly been a qualitative
and quantitative change in how health and medical tourism is reported and
understood3.
It is impossible to promote tourism while maintaining the environment in
good shape. There is no tourist activity that does not bring about changes in
the physical, social, economic and cultural environment of a destination. Re‐
sponsible tourism operates on the principles of social and economic justice
with respect for the environment and cultures and recognizes the central role
of the local community (at the place of hospitality) and the right to act as a pro‐
tagonist in the development of a sustainable and responsible tourism.
With a world population of 7 billion people and limited natural resources,
we, as individuals and societies need to learn to live together sustainably. The
UN declared 2017 as the International Year of Sustainable Tourism Develop‐
ment. The resolution, adopted by the General Assembly of the International
Organization on 4 December 2015, recognizes the importance of international
tourism in promoting a better understanding among the peoples of the world,
leading to greater awareness of the rich heritage of different cultures, thereby
Cortez, N., “Patients without Borders: The Emerging Global Market for Patients and the
Evolution of Modern Health Care,” Indiana Law Journal 83 (2008), 71‐132.
2 Hopkins, L. et al., “Medical Tourism Today: What is the State of Existing Knowledge?”
Journal of Public Health Policy 31(2) (2010), 185‐198.
3 Hall, M., “Health and Medical Tourism: A Kill or Cure for Global Public Health?” Tourism
Review 66(1) (2011), 4‐15.
1
234
contributing to enhancing peace in the world.
The establishment by the UN of 2017 as an International Year of Sustainable
Tourism Development is a unique opportunity to promote the contribution of
the tourism sector to the three pillars of sustainable development ‐ economy,
society and the environment, while at the same time informing the global pub‐
lic about real dimensions of a sector that is often underestimatedʺ.
The paper will first discuss some of the issues surrounding definitions of
health and medical tourism. I undertook a systematic search of the literature to
determine how much was known about this prospering industry, and how it
might affect health justice within and between nations participating in this in‐
dustry. I continue with a description of the role of the sustainable development
and the connection between itself and medical tourism. I conclude with some
comments about the requirements for future study.
2. Medical Tourism
Medical travel is not new, but the global nature of the cross‐border medical
care industry is recent and has developed rapidly. The industry is facilitated
by a growing number of internet‐based brokerages, linking patients to facili‐
ties. In the past, medical tourism occurred when wealthy people living in
countries with poor healthcare services travelled to North America or Europe
whenever they needed care. Now, however, many developing countries are
building up world‐class healthcare facilities at just the time when healthcare
cost pressures in the developed world are rising rapidly.
Many developing countries are keen to establish themselves as medical
tourism hubs, often as part of a wider economic development strategy. The
most immediate motivation is the revenue they can earn, not only for medical
services, but also from the tourism services needed while a patient stays in the
country. Governments also see medical tourism as a way to attract investment
into healthcare services and to encourage medical staff to stay in the country,
with potential long‐term benefits for local residents too. Proponents of medical
tourism argue that host countries can reap considerable benefits if the flow of
foreign patients is managed effectively.
Medical tourism is related to the broader notion of health tourism which, in
some countries, has longstanding historical antecedents of spa towns and
coastal localities, and other therapeutic landscapes. Some commentators have
considered health and medical tourism as a combined phenomenon but with
different emphases4. There is no definitive information about how many pa‐
tients receive health care in the medical tourism model. A major difficulty in
determining the magnitude of medical tourism is the fact that the reported
numbers may include expatriates from other nations, business travelers and
tourists who require medical care while they are in these destinations for other
purposes. The medical tourist industry is dynamic and volatile and a range of
factors including the economic climate, domestic policy changes, political in‐
Carrera, P., Lunt, N., “A European Perspective on Medical Tourism: The Need for a Knowl‐
edge Base,” International Journal of Health Services 40 (2010), 469‐84.
4
235
stability, travel restrictions, advertising practices, geo‐political shifts, and in‐
novative and pioneering forms of treatment may all contribute towards shifts
in patterns of consumption and production of domestic and overseas health
services.
Patients also travel to medical tourism destinations for procedures that are
not available in their own countries. For example, stem cell therapy for heart
failure, unobtainable by many patients in industrialized countries, is available
in the medical tourism marketplace. A faraway country provides privacy and
confidentiality for patients undergoing plastic surgery, sex change procedures
and drug rehabilitation. Furthermore, their medical records cannot be viewed
by the myriad parties who can access these documents in the United States.
The consequences of an adverse outcome, such as a severe stroke or death,
in a foreign country thousands of miles from home would be particularly diffi‐
cult for the family of a patient with limited funds. Finally, if a patient wanted
to initiate litigation for an adverse outcome, the claim would have to be adju‐
dicated in a foreign court.
3. Patient’s Profile
Below is the profile of patients‐tourists:
Temporary visitors abroad: These include those individuals holidaying
abroad who use health services as a result of an accident or a sudden illness.
Health services for tourists are funded variously through the European Health
Insurance Card (for EU citizens) for occasional or emergency treatment within
the EU, private insurance and out‐of‐pocket expenses.
Long‐term residents: There are increasing flows of EU citizens choosing to
retire in countries other than their country of origin, within the EU borders and
indeed beyond5, and there are growing exchanges of working‐age citizens
within Europe. Such residents may receive health services funded variously by
the country of residence, the country of origin, private insurance, or through
private contributions.
Common borders: countries that share common borders may collaborate in
providing cross national public funding for health care services from providers
in other countries.
Outsourced patients: are those patients opting to be sent abroad by health
agencies using cross‐national purchasing agreements. Typically, such agree‐
ments are driven by long waiting lists and a lack of available specialists and
specialist equipment in the home country. These patients often travel relatively
short distances and contracted services (both public and private) are more
likely to be subject to robust safety audits and quality assurance6.
Rosenmöller, M. et al., Patient Mobility in the European Union: Learning from Experience.
(Denmark: European Observatory on Health Systems and Policies, 2006).
6 Lowson, K. et al., Evaluation of Patients Travelling Overseas: Final Report. (York: York
Health Economics Consortium, 2002).
5
236
4. Factors of demand
The reasons that can lead a patient to seek medical services abroad are
many and different depending on the supply and demand for medical tourism
services. Key demand factors determining the market trend are: 1) Demo‐
graphic changes: It is estimated that over the next 50 years the proportion of
people over 60 in developed countries will rise from 1/5 to 1/3. The sections of
tourism related to health, thalassotherapy and fitness ‐ wellness are expected
to benefit. The pressure on available health care resources and their adequacy
in developed countries as a consequence of demographic changes, 2) High
queues in public hospitals in developed countries (US, Western Europe), 3) In‐
eligible treatments in the country of origin and 4) Combination of treatment
with an attractive destination: Glinos et al. identify five drivers behind the in‐
creases in demand for medical services overseas: familiarity, availability, cost,
quality and bioethical legislation (international travel for abortion services, fer‐
tility treatment, and euthanasia services7. The demand for services may also be
volatile8 with travel determined by both wider economic and external factors,
as well as shifting consumer preferences and exchange rates. Providers and na‐
tional governments may seek to challenge existing suppliers, for example Latin
American fertility clinics9.
5. Supply side: Models of service delivery and funding
Key supply factors determining the market trend are: 1) the availability of
technology enables patients through the Internet to be led through research
across options beyond their national borders, 2) airline political co‐operation
has the effect of making cheap travel available outside of borders, 3) the liber‐
alization of markets shapes a situation where citizens and consumers are famil‐
iar with the international nature of services even within borders, 4) the con‐
temporary hospital infrastructure, 5) the specialized medical and nursing staff,
6) the profile of each destination (climatic conditions, infrastructure, quality of
services, historical and cultural heritage), 7) the quality and cost of medical
services provided. The cost of an operation in India, Thailand and South Africa
represents 1/10 of the corresponding costs in the US and Western European
countries, 8) the constantly improving quality of health services in developing
countries. Several of these countries are competing for the quality of services
provided by developed countries at least in terms of the use of modern medi‐
cal technology, 9) the mobility of physicians ‐ ability to exercise their scientific
status throughout the world and 10) the developing international certification
standards for health care infrastructure10.
Glinos, I. A. et al., “A Typology of Cross‐border Patient Mobility,” Health and Place 16
(2010), 1145‐1155.
8 MacReady, N., “Developing Countries Court Medical Tourists,” The Lancet 369 (2007),
1849‐1850.
9 Smith, E. et al., “Reproductive Tourism in Argentina: Clinic Accreditation and its Implica‐
tions for Consumers. Health Professionals and Policy Makers,” Developing World Bioethics 10
(2010), 59‐69.
10 OECD, Health Accounts Experts, Progress Report. Trade in Health Care Goods and Ser‐
7
237
6. Medical tourism and the web
The Internet is today the most prevalent medium in which people seek in‐
formation about health and health care issues. Increase private health service
providers. As governments are fighting with the pressure caused by under‐
funding in health services, private health care institutions will get a larger
market share and gradually gain more international rather than national role.
Insurance products that provide lower‐cost security packages are becoming
more and more intense in developed countries.
A key driver in the medical tourism phenomenon is the technological plat‐
form provided by the internet for consumers to access healthcare information
and advertising from anywhere in the world. Equally, the internet offers pro‐
viders vital new avenues for marketing to reach into non‐domestic markets.
Commercialization is at the heart of the growth in medical tourism and in
some part this is due to the availability of web‐based resources to provide con‐
sumers with information, advertisements and market destinations, and to con‐
nect consumers with an array of healthcare providers and brokers. A review
suggests the following typology of websites11: a) portals (focused on provider
and treatment information), b) media sites, c) commerce‐related sites (provid‐
ing ancillary services and information) and d) professional contributions (from
sources such as professional associations and state regulatory institutions are
relatively rare).
7. Clinical outcomes
Evidence of clinical outcomes for medical tourist treatments is limited and
reports are difficult to obtain and verify. Little is known about the relative
clinical effectiveness and outcomes for particular treatments, institutions, clini‐
cians and organizations. There is scant evidence on long or short‐term follow‐
up of patients returning to their home countries following treatments at the
range of destinations.
That a positive treatment outcome should result is important, not least be‐
cause the patient‘s local health care provider takes on the responsibility and
funding for post‐operative care including treatment for complications and to
remedy side‐effects12. In the event of an adverse outcome, it should be known
whether, and to what extent, the patient has recourse for redress.
According to the World Tourism Organization‘s ‐ Global Code of Ethics for
Tourism (1999), there is an expectation that tourists and visitors should have
the same rights as citizens of destination countries with regard to the confiden‐
tiality of their personal data and information, especially when these are stored
in electronic formats. Laws and regulations will vary in different parts of the
world in relation to medical confidentiality, including the protection of data
vices Under the System of Health Accounts. (Paris: OECD, 2010).
11 Lunt, N., Carrera, P., “Advice for Prospective Medical Tourists: Systematic Review of Con‐
sumer Sites,” Tourism Review 66 (2011), 57‐67.
12 Cheung, I. K., Wilson, A., “Arthroplasty Tourism,” Medical Journal Australia 187 (2007),
666‐667.
238
kept on computer. On the other hand, people may travel to other countries for
treatment for personal reasons related to an expectation of greater confidential‐
ity in that country compared to the home country (e.g. HIV care, treatment for
infertility, gender reassignment surgery).
There may also be issues of confidentiality related to the clients of compa‐
nies who act as facilitators of medical tourism. The staff of medical tourism fa‐
cilitators‘ offices may be party to clinical information on patients, and this pri‐
vate and sensitive information would need to be dealt with very carefully and
there is potential for them to sell the information to other medical service com‐
panies.
8. External quality assessment and accreditation
International medical certification systems differ globally in their structure,
breadth, complexity, methodology, promotions, but also in popularity and
reach. In addition, they distinguish between the cost to the provider, their
adoption and the acquisition of the Certification, as well as the rate of com‐
mitment to clinical standards and medical ethics and ethics. In the next section,
we list the international medical certification bodies:
JCI (Joint Commission International): the United States International Medi‐
cal Accreditation Agency Joint Commission International or JCI was estab‐
lished in 1997 as a subsidiary of Joint Commission Resources, Inc. (JCR) as a
private nonprofit organization. The organizationʹs goal is to engage interna‐
tionally. To this end, it has drawn up international accreditation programs, ad‐
visory services and training programs in connection with improving patient
care and health certification at international level. At the beginning of 2012, JCI
had already certified 375 hospitals in 47 countries worldwide, and especially
for US patients, is a guaranteed seal of quality for health services.
Temos, International Certification for Medical Tourism: the German Temos
GmbH Foundation was founded in 2005 as part of a European Research Pro‐
gram to investigate and define quality criteria and requirements for Interna‐
tional Patient Management not covered by the classical quality and accredita‐
tion systems. Since then, the Agency has been one of the most important in the
field of International Health Service Certification for Hospitals, Clinics, Reha‐
bilitation Centers, Primary Care and Dental Services. Its global originality lies
in the fact that it is the only one that evaluates and certifies medical tourism
services while in 2011 it expanded its activities in Cyprus and Greece with the
establishment of TEMOS AEGEAN to provide important opportunities for
Networking in the International Market of Medical Tourism and Quality As‐
surance of the Health Services of the two countries.
QHA‐Trent Accreditation (Great Britain: the QHA‐Trent Accreditation was
issued by the United Kingdomʹs Trent Accreditation Scheme (TAS) is the first
system to be certified by a healthcare provider in Asia. QHA Group is a UK
private initiative with international commitment and commitment to the goal
of improving quality in health services and reducing patientʹs risk and insecu‐
rity in order to provide the highest service at the lowest prices. Although the
organizationʹs management and know‐how involves clinicians and quality
239
specialists working in the British Health System or the private sector, the or‐
ganization itself is not related to or controlled by the National Health System
of the country (NHS).
9. Disadvantages of the medical tourism
The attractive MT option that offers simultaneously tourism and health care
can nevertheless bring some health disadvantages. Generally, ʺsun, sea and
sand tourismʺ is not recommended after a surgery, but the Mt can make tour‐
ism before the planned intervention, especially when is accompanied by a rela‐
tive. Any medical intervention is risked: the possible post‐operative complica‐
tions can increase the invoice if it is necessary to remain abroad to treat them.
Complications can appear at the time of return to the country of origin, due to,
among others, a traumatism or a secondary infection during the journey.
Therefore, the care abroad can then turn out less profitable than a care made in
the country of origin13.
The accompaniment of local paramedical activities (clinical analysis labora‐
tories, centers of radiology, medical imaging and interpretation) can have a
lower quality than that of local doctors. The problem is that it is only during
the stay that the Mt can judge it. The medical follow‐up cannot be maintained
abroad by the medical team, which practiced the interventions, unless coming
again. It is the case of the false teeth requiring at least five or six fittings to
make sure of a correct result. The medical follow‐up after the intervention has
to continue in the country of origin, at his expenses or in a public institution
that agrees to take care of him. It is not certain that the foreign doctor makes a
commitment to repair the damages of his surgical act. Thus, the MT is inter‐
ested in taking out an additional insurances, even though that will increase the
final invoice, to make sure of the good progress during his hospital and touris‐
tic stay: any legal action against the private hospital will have to be made ac‐
cording to the legal codes of the foreign country.
10. Medical Centers and Hospitals in Greece
Greece is one of the most popular tourist destinations world‐wide. The
countryʹs unique characteristics, history, culture, natural beauty, thousands of
islands, rare biodiversity, mild climate, Mediterranean gastronomy, its infra‐
structure and potential for attracting many new forms of tourism enable it to
meet the requirements of Medical Tourism.
Medical Travel is acquiring a dynamic momentum across the globe. Based
on recent statistics, more than 10‐15% patients from European Union states
seek health‐care abroad. Greece has the potential and suitable infrastructure to
attract patients/visitors from anywhere in the world, including Europe, and it
can meet the requirements of many forms of Health Tourism compatible with
its unique natural environment. The development of Medical Tourism in
Greece will bring significant advantages; already a great number of entrepre‐
Cohen, D. J., “Transplant Tourism: A Growing Phenomenon,” Nat ClinPractNeph 5 (2009),
128‐129.
13
240
neurs, mainly in the health sector, make significant investments in modern
health‐care centers and more.
The development of Medical Tourism is an excellent opportunity for Greece
to attract a large number of patients/visitors. Beyond its fame as the cradle of
civilization, democracy and science ‐ to include medical science – Greece also
boasts state‐of‐the‐art hospitals and health‐care centers in many of its prov‐
inces, fully complying with international health standards and staffed with in‐
ternationally accredited physicians.
There are several contemporary hospital units found in popular Greek des‐
tinations including Crete, Peloponnese, Thessaloniki, Corfu, Alexandroupolis,
Kalamata and Athens. They are pioneers in the development of domestic
Medical Tourism, already suitably equipped to meet the needs of patient / visi‐
tors. Greece has the potential and infrastructure to rank among the most popu‐
lar Medical Tourism destinations and become an international ʺbrand nameʺ in
the sector. Fully aware of the importance of combining hospitality with top
quality services, we invite you to choose Greece for combining top quality
health care with your vacations.
11. Thermal tourism
Thermal tourism which has undoubtedly been one of the ancestors of all
modern forms of tourism, is addressed not only to the young tourists but also
to their attendants as well as to healthy people who wish to combine their
holidays with prevention, conservation or improvement services of their health
through programs of total revitalization and relaxation at a physical, mental
and emotional level. In a varied and healthy natural environment, aesthetically
beautiful and safe, the visitor takes care of his personal health while also
spending his free time in pursuing other healthy habits and enjoyable activi‐
ties14.
The concepts of healing tourism and healing are used indiscriminately. To‐
day, the role of thermal waters is redefined in addition to medicine and cosme‐
tology for the manufacture of cosmetic and dermatological products, for skin
hydration, treatment of greasy and acne, dermatitis, eczema, psoriasis, burns,
etc.
In spite of the common perception, thermal healing refers to the average
consumer and not only to high‐cost customers. Luxurious health centers have
been deployed throughout Europe with all the appropriate equipment, special‐
ized doctors, clinics, treatment centers, controlled diet, huge green spaces with
gardens, lakes and rivers, sports centers, etc., combining gentle medical ser‐
vices with recreation, offering a comprehensive package of health services, re‐
laxation, holidays at a much lower cost.
Spa ‐ healing centers are special tourist facilities and equipment, by integrat‐
ing alternative therapies with traditional modalities. Typically are located in
Caballero‐Danell, S., Chipo, M., “Medical Tourism and its Entrepreneurial Opportunities:
A Conceptual Framework for Entry into the Industry Tourism and Hospitality Management,”
Master Thesis (2006), 91.
14
241
the area of ecological, cultural and historical features. The visitor, in an aes‐
thetically pleasing and healthy environment, carries out all physical and men‐
tal functions, using medicinal natural resources, under medical supervision,
for preventive or therapeutic reasons, physical rehabilitation or wellness by
applying forms of external or internal hydrotherapy or clay therapy or other
scientifically recognized methods (Law 3498/2006).
12. Sustainable development
The term sustainable or sustainable development varies according to socie‐
ties and environments. The terms sustainability and sustainability have been
devised to mark that economic growth that will not irreversibly destroy the
natural resources and natural conditions of the planet. As every human action
is merely an intervention in material or non‐material elements and data, it
seems that sustainability is the measure of the effective intervention of human
societies on nature, man and ideas. Such an understanding of sustainability
and sustainability requires a broad social dialogue capable of gaining an
equally broad social consensus between citizens and institutions, citizens and
entrepreneurs. Only in this way entrepreneurship about ʺhealing‐thermal tour‐
ismʺ will develop without marginalizing people and social groups and without
degrading the primary ʺnatural isʺ.
The United Nations Rio+20 summit in Brazil in 2012 committed govern‐
ments to create a set of sustainable development goals (SDGs) that would be
integrated into the follow‐up to the Millennium Development Goals (MDGs)
after their 2015 deadline. Discussions on how to formulate these continue this
week at UN headquarters in New York. We argue that the protection of Earth’s
life‐support system and poverty reduction must be the twin priorities for
SDGs. It is not enough simply to extend MDGs, as some are suggesting, be‐
cause humans are transforming the planet in ways that could undermine de‐
velopment gains15.
With the human population set to rise to 9 billion by 2050, definitions of
sustainable development must be revised to include the security of people and
the planet. Defining a unified set of SDGs is challenging, especially when there
can be conflict between individual goals, such as energy provision and climate‐
change prevention. But we show here that it is possible. By combining the
MDGs with global environmental targets drawn from science and from exist‐
ing international agreements, we propose six SDGs with provisional targets for
2030.
Goal 1: Thriving lives and livelihoods. End poverty and improve well‐being
through access to education, employment and information, better health and
housing, and reduced inequality while moving towards sustainable consump‐
tion and production. This extends many targets of the Millennium Develop‐
ment Goals (MDGs) on poverty, health and urban environments and applies
them to developed nations. It should include targets on clean air that build on
World Health Organization guidelines for pollutants such as black carbon6;
15
Griggs, D., “Sustainable Development Goals for People and Planet,” Nature 495 (2013).
242
reductions in emissions of stratospheric ozone‐depleting substances in line
with projections from the Montreal Protocol; critical loads for man‐made
chemical compounds and toxic materials; and sustainable practices for extrac‐
tion, use and recycling of scarce minerals and metals and other natural re‐
sources.
Goal 5: Healthy and productive ecosystems. Sustain biodiversity and eco‐
system services through better management, valuation, measurement, conser‐
vation and restoration. This combines the MDG environmental targets with
2030 projections of the Aichi Targets adopted by the Convention on Biological
Diversity. Extinctions should not exceed ten times the natural background rate.
At least 70% of species in any ecosystem and 70% of forests should be retained.
Aquatic and marine ecosystems should be managed to safeguard areas crucial
for biodiversity, ecosystem services and fisheries.
Goal 6: Governance for sustainable societies. Transform governance and in‐
stitutions at all levels to address the other five sustainable development goals.
This would build on MDG partnerships and incorporate environmental and
social targets into global trade, investment and finance4. Subsidies on fossil fu‐
els and policies that support unsustainable agricultural and fisheries practices
should be eliminated by 2020; product prices should incorporate social and
environmental impacts. National monitoring, reporting and verification sys‐
tems must be established for sustainable development targets; and open access
to information and decision‐making processes should be secured at all levels.
13. Education for sustainable development
With a world population of 7 billion people and limited natural resources,
we, as individuals and societies need to learn to live together sustainably. We
need to take action responsibly based on the understanding that what we do
today can have implications on the lives of people and the planet in future.
Education for Sustainable Development (ESD) empowers people to change the
way they think and work towards a sustainable future.
UNESCO aims to improve access to quality education on sustainable devel‐
opment at all levels and in all social contexts, to transform society by reori‐
enting education and help people develop knowledge, skills, values and be‐
haviors needed for sustainable development. It is about including sustainable
development issues, such as climate change and biodiversity into teaching and
learning. Individuals are encouraged to be responsible actors who resolve chal‐
lenges, respect cultural diversity and contribute to creating a more sustainable
world.
Sustainable tourism is defined by paragraph 130 of The Future We Want as
an important factor in the three dimensions of sustainable development
through its close relationships with other sectors and its ability to create decent
jobs and create trade opportunities. Therefore, Member States recognize the
need to support sustainable tourism activities and the related capacity building
that promote environmental awareness, preservation and protection of the en‐
vironment, respect for wildlife, flora, biodiversity, ecosystems and cultural di‐
versity and improve the well‐being and livelihoods of local communities is ap‐
243
proached as an attempt to integrate and constantly balance all the elements
that constitute its developmental system16.
The World Tourism Organization defines sustainable tourism development
as “tourism that takes into account current and future economic, social and en‐
vironmental impacts in order to meet the needs of visitors, industry, the envi‐
ronment and communities.” Sustainable development and tourism is based on
three main pillars, which must take into account tourist satisfaction, industry,
environment and community.
• Environmental sustainability: Optimizing the use of environmental resources
and helping to conserve natural resources and biodiversity. Also, environ‐
mental sustainability should promote a better understanding of the impor‐
tance of the diversity of ecosystems and improve monitoring of the environ‐
mental impact caused by production activities.
• Social sustainability: Respect the socio‐cultural authenticity of host commu‐
nities, ensuring the preservation of cultural assets and traditional community
values. Additionally, social sustainability must take into account the dimen‐
sions that improve the quality of life of the local community, such as access
to education, health, employment, and dwelling.
• Economic sustainability: Promoting and ensuring longterm economic activi‐
ties in which socio‐economic benefits are equally distributed among all
agents, generating stable employment opportunities and contributing to pov‐
erty reduction.
Moreover, is essential to define three main features that will improve the
development of the region and also promote the development of health and
wellness tourism as a composed product. Natural characteristics: quality and
characteristics of thermal waters,(temperature, odor and flavor). Thermal
structures: facilities, treatments / programs, management, functional character‐
istics, good relation price‐quality, medical support, services and supports for
people with disabilities. Historical‐ Cultural characteristics: the historical rich‐
ness, cultural and patrimonial, with strong connections with rural environ‐
ment.
14. Summary
The key features of the new 21st Century style of medical tourism are sum‐
marized below: 1) the large numbers of people travelling for treatment, 2) the
shift towards patients from richer more developed nations travelling to less
developed countries to access health services, largely driven by the low‐cost
treatments and helped by cheap flights and internet sources of information, 3)
new enabling infrastructure – affordable, accessible travel and readily available
information over the internet and 4) industry development: both the private
business sector and national governments in both developed and developing
nations have been instrumental in promoting medical tourism as a potentially
lucrative source of foreign revenue.
Kalokardou, R., Krantonellis, K., Alternative Forms of Tourism and Critical Capacities in
Tourist Areas of Western Greece. (Heleco, 2005).
16
244
Greece has significant prospects of becoming the capital of Thermal Medi‐
cine and Health Resort in Greece in general. Quality maximization and risk
minimization are two key ingredients for creating better and safer health care
services, whether they are providing services for domestic consumption or for
medical travelers. This can only be accomplished through the setting‐up of ap‐
propriate forms of organizational framework within the hospital or clinic de‐
signed to assess quality, identify risk, and deal with all relevant issues, and at
the same time promote a culture of remaining vigilant. At the present time,
medical tourism services remain largely unregulated and a huge issue that
needs to be faced up to is whether or not the quality and safety standards on
offer through medical tourism are to be trusted.
Local economies will realize distinct benefits from the activities of medical
tourism. Indicatively, inflow of more foreign exchange if we achieve long‐stay
tourism, new jobs by stimulating economic activity due to the development of
thermal springs, but also by building an initial infrastructure such as health in‐
frastructure and sports facilities (hospitals, stadiums, etc.). The product should
be promoted by all means, whether it is a visit to archaeological sites, Mediter‐
ranean food, cultural events, etc., as Greece has to compete with traditional
medical tourist economies.
Furthermore, environmental protection, energy consumption, emission re‐
duction, recycling of waste, reduction of chemical usages and awareness and
education of employees and the guests are some core policies that accommoda‐
tion industries should apply in their development procedure and should be an
integral part of management practice. In addition, to sustain these policies for
environment protection, higher management of the accommodation establish‐
ments should have full support and encouragement to the above mentioned
policies17.
The role of advertising, should include general information about hydro‐
therapy and its value as a natural method of prevention and treatment, is very
important. The entire program should be strong with the presence of special‐
ized doctors providing every advice and support. Strict schedules should be
established determining the appropriate timing of treatments, food, sleeping,
resting, exercise and walking as part of the treatment.
In addition, many thermal springs are located in coastal locations (40%),
others in lowlands, mountainous with green and almost all of them in most
natural beauty. That means that therapeutic tourism can be combined with
other forms of alternative tourism throughout the year. Local economies will
realize attractive benefits from the activities of medical tourism. Until now un‐
tapped or even unknown areas can maximize significant opportunities for
growth and success.
Saxena, A., New Trends in Tourism and Hotel Industry. Available: http://site.ebrary.com/
lib/cop/docDetail.action?docID=10416183&page=198.
17
Gender mainstreaming in the Greek
educational system and recommendations
for gender equality
Fondana Marmani
Researcher at the Hellenic Institute on United Nations Affairs
1. Introduction
For more than half a century, since the Universal Declaration of Human
Rights in 1948 and the Treaty of Rome in 1957, international and European or‐
ganizations have dealt with the issue of gender equality. Equal opportunities
between men and women in the educational process have been an important
parameter of gender equality policies and have strengthened dialogue between
states with the aim of improving the quality and efficiency of both education
systems and teaching and learning products. However, despite the significant
progress that has taken place, inequality of opportunities in education, which
raises multiple and complex problems, still remains an important issue.
Despite the fact that the reproduction of gender stereotypes is not limited to
the school context, as both family and the workplace can play an important
role in shaping them, education is still the most appropriate field for imple‐
menting positive interventions to this direction. In Greece, although the insti‐
tutional and legal framework ensures equal opportunities for both sexes, there
is a need for policies and measures to promote gender equality in education:
interventions in school textbooks, pedagogical material and methods, sensiti‐
zation of students and teachers – both men and women. Such measures, com‐
bined with special emphasis on the professional orientation of young men and
women, are intended to help remove prejudices and create prerequisites that
will allow for meaningful equality of men and women in the field of education
and labor.
2. Promoting gender equality at an international level
At an international level, the first concrete reference to the elimination of
gender discrimination is made in the Universal Declaration of Human Rights,
which was adopted and voted by the United Nations General Assembly (UN)
in 1948. These articles formed the basis for the adoption of the subsequent
Treaties, Conventions and other legal documents, such as the International
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW).
On December 18, 1979, the UN General Assembly adopted the ʺConvention
on the Elimination of All Forms of Discrimination against Womenʺ (CEDAW)
(United Nations, 1979). This Convention is considered to be the most impor‐
tant document for the development of gender equality policies at a global level
and its main purpose is the elimination of gender inequalities as well as the
246
adoption of necessary measures ‐including legal ones in all walks of life and in
particular in the political, social, economic and cultural areas‐ by the govern‐
ments of the countries that have ratified it to ensure women’s full equality, de‐
velopment and advancement.
In its 30 articles, there are definitions of discrimination against women, as
well as measures to be taken by the Member States, such as: a) legislation to
eliminate discrimination against women (Articles 2 & 3), b) equality promotion
mechanisms (Article 4), c) changing gender‐based socio‐cultural behavior pat‐
terns to eliminate prejudices and habits based on the inferiority or superiority
of the gender concept or on the idea of gender stereotypes, as well as recogni‐
tion of the joint responsibility of men and women with regard to the upbring‐
ing of children and understanding maternity as a social function (Article 5), d)
measures to combat prostitution and the sexual exploitation of women (Article
6), e) the right to participate in politics and public life (Article 7), the ability to
represent their country on an international scale and at international organiza‐
tions (Article 8), equal rights to nationality and citizenship (Article 9), f) equal
rights in critical areas: (a) education (vocational guidance, program attendance,
etc.) (Article 10), (b) employment in other sectors of economic and social life
(right to work and equal pay, social security (Article 11 and 13),; (c) healthcare
(Article 12),; (d) rural development (Article 14) and g) equal rights to family re‐
lationships and marriage (Article 16).
The UN has effectively set up a mechanism (the CEDAW Commission) un‐
der which Member States that have ratified the Convention are required to
produce national reports every four (4) years to assess the progress of the im‐
plemented policies on gender equality as well as the related commitments.
In addition, in 1985 the UN held the 3rd World Conference on Women in
Nairobi, which adopted the ʺForward‐Looking Strategies for the Advancement
of Women ʺ. In 1995, the Fourth UN World Conference on Women under the
ʺEquality ‐ Development ‐ Peaceʺ emblem was held in Beijing, where the Bei‐
jing Declaration and the Beijing Platform for Action were adopted (United Na‐
tions, 1995).
The Declaration and the Platform for Action endorsed at the end of the Con‐
ference, set out the strategic objectives and actions to be implemented in order
to remove the obstacles to the promotion of gender equality. Twelve (12) criti‐
cal sectors have been identified as an obstacle to the promotion of women and
therefore require taking specific actions: 1) women and poverty, 2) education
and training for women, 3) women and health, 4) violence against women, 5)
women and armed conflicts, 6) women and the economy, 7) women, power
and decision‐making, 8) institutional mechanisms for the promotion of
women, 9) human rights of women, 10) women and the media, 11) women and
the environment and 12) the girl‐child.
The Beijing Platform for Action is the first official international document to
adopt the strategy and the term ʺgender mainstreamingʺ and has been defined
as the promotion of an ʺactive and explicit policy of gender mainstreaming in
all policies and programs so that an analysis of the impact on women and men
is made before decisions are taken by governments and other bodiesʺ.
247
Following the Fourth World Conference on Women, the Madrid European
Council (15th and 16th December 1995) called for an annual review of the im‐
plementation of the Platform for Action in the Member States. A Special UN
Summit in 2000 on ʺWomen 2000: Gender Equality, Development and Peace in
the 21stCenturyʺ (Beijing + 5) (United Nations, 2010a) ensured the follow‐up to
the Fourth World Conference on Women and a frequent evaluation of the im‐
plementation of the Beijing Program by 2005 was agreed on. On this basis,
three reports were published: Beijing +10 ‐ Progress within the European Un‐
ion (2005), Beijing +15: The Platform for Action and the European Union (2010)
and Beijing +20 (2015), where the progress achieved by the Fourth World Con‐
ference on Women in Beijing (1995 to 2015) was assessed.
The implementation report on the Platform confirmed that it cast a positive
impact on gender equality policies. However, there is still much to be done in
the field of equality between men and women as the progress of gender main‐
streaming is slow (Council of Europe, 2008). Gender equality has, thus, been
the core component of all policies that shape the agenda, and is no longer con‐
sidered an autonomous and regional issue (UN, 2002). Within this context, the
UN Commission on the Status of Women 2008 has had been set up to record
good practices and assess the progress of gender policies in individual coun‐
tries based on the Beijing Platform for Action.
There was a total of eight Millennium Development Goals (MDGs) that re‐
sponded to the key global development challenges and needed to be achieved
by 2015. These objectives were determined by the actions and objectives set out
in the Millennium Declaration (United Nations, 2000b) which had been
adopted by 189 nations and signed by 147 Heads of State and Government
during the Millennium Summit of the United Nations in September 2000.
The 8 MDGs were subjected to time constraints and were measured on the
basis of 48 indicators, specifically developed to monitor their progress. The
first three objectives involved: 1) the eradication of poverty and hunger, 2) the
provision of primary education to all (to ensure that all children around the
world, boys and girls, will be offered the opportunity to complete a full‐time
Primary Education program by 2015), 3) the promotion of gender equality and
the empowerment of women. The third objective highlights the elimination of
gender inequality in Primary and Secondary education by 2005 and at all levels
of education not later than 2015.
Despite the progress made in achieving the Millennium Development
Goals, which were of particular importance to women and girls, and although
the Millennium Development Goal 3 identifies gender equality and womenʹs
empowerment as a universal priority, overall progress on women and girls in
all the Millennium Development Goals remains slow and uneven, both within
and between countries. Indeed, the lack of progress on gender equality has
hindered progress towards all the Millennium Development Goals and re‐
mains a concern for regions and areas affected by poverty and for marginal‐
ized, vulnerable and disadvantaged women and girls as well and for those suf‐
fering from multiple forms of discrimination and inequality of different kinds.
In general, Greece, as a member of the International Organizations, has ac‐
248
cepted, adopted and ratified all the International Conventions that aim to im‐
prove the status of women in all areas of the countryʹs economic, political, so‐
cial and cultural life. In general, Greece, as a member of the International Or‐
ganizations and the European Union, whose social policy pursues gender
equality, has accepted, adopted and ratified all the International Conventions
that aim to improve the status of women in all areas of the countryʹs economic,
political, social and cultural life.
3. Sustainable development goals by the United Nations
At the end of September 2015 at the Summit of the United Nations (UN) in
New York, the document containing the 17 overall goals that the Member
States will be called upon to implement by 2030 was voted. Among these 17
goals is goal number 51 on gender equality, which is expected to put an end to
Obtaining a quality education is the foundation to improving people’s lives and sustainable
development. Major progress has been made towards increasing access to education at all levels
and increasing enrolment rates in schools particularly for women and girls. Basic literacy skills
have improved tremendously, yet bolder efforts are needed to make even greater strides for
achieving universal education goals. For example, the world has achieved equality in primary
education between girls and boys, but few countries have achieved that target at all levels of
education. Facts and figures: (1) enrolment in primary education in developing countries has
reached 91 per cent but 57 million children remain out of school, (2) more than half of children
that have not enrolled in school live in sub‐Saharan Africa, (3) an estimated 50 per cent of out‐of‐
school children of primary school age live in conflict‐affected areas, (4) 103 million youth
worldwide lack basic literacy skills, and more than 60 per cent of them are women. Goals: (1) by
2030, it will be ensured that all girls and boys complete free, equitable and quality primary and
secondary education leading to relevant and Goal‐4 effective learning outcomes, (2) by 2030, it
will be ensured that all girls and boys have access to quality early childhood development, care
and preprimary education so that they are ready for primary education, (3) by 2030, equal access
for all women and men to affordable and quality technical, vocational and tertiary education, in‐
cluding university, will be ensured, (4) by 2030, the number of youth and adults who have rele‐
vant skills, including technical and vocational skills, for employment, decent jobs and entrepre‐
neurship will have substantially increased, (5) by 2030, gender disparities in education will be
eliminated and equal access to all levels of education and vocational training for the vulnerable,
including persons with disabilities, indigenous peoples and children in vulnerable situations
will be ensured, (6) by 2030, it will be ensured that all youth and a substantial proportion of
adults, both men and women, achieve literacy and numeracy, (7) by 2030, it will be ensured that
all learners acquire the knowledge and skills needed to promote sustainable development, in‐
cluding, among others, through education for sustainable development and sustainable life‐
styles, human rights, gender equality, promotion of a culture of peace and non‐violence, global
citizenship and appreciation of cultural diversity and of culture’s contribution to sustainable de‐
velopment, (8) education facilities that are child, disability and gender sensitive will be built and
upgraded while safe, nonviolent, inclusive and effective learning environments for all will be
provided, (9) by 2020, the number of scholarships for enrolment in higher education, including
vocational training, information and communications technology, technical, engineering and
scientific programmes will substantially increase globally and will be made available to develop‐
ing countries, in particular less developed ones, small islands and African countries and (10) by
2030, the supply of qualified teachers, through international cooperation for teacher training in
developing countries, especially in less developed ones and small islands will be substantially
increased.
1
249
all forms of discrimination against women and girls throughout the world and
it can be suggested that part of it is narrowed down in goal number 42 which
refers to the acquisition of quality education, considering that the latter consti‐
tutes the foundation for improving peopleʹs lives and sustainable develop‐
ment.
More specifically, the goal number4 in case pertains to ensuring equal ac‐
cess for all women and men to affordable and high‐quality technical and voca‐
tional training as well as access to higher education, including universities by
While the world has achieved progress towards gender equality and women’s empower‐
ment under the Millennium Development Goals (including equal access to primary education
between girls and boys), women and girls continue to suffer discrimination and violence in
every part of the world. Gender equality is not only a fundamental human right, but a necessary
foundation for a peaceful, prosperous and sustainable world. Providing women and girls with
equal access to education, health care, decent work, and representation in political and economic
decision‐making processes will fuel sustainable economies and benefit societies and humanity at
large. The European Union (EU) and the United Nations (UN) are embarking on a new, global,
multi‐year initiative focused on eliminating all forms of violence against women and girls
(VAWG) – the Spotlight Initiative. The Initiative is so named as it brings focused attention to this
issue, moving it into the spotlight and placing it at the centre of efforts to achieve gender equal‐
ity and women’s empowerment, in line with the 2030 Agenda for Sustainable Development. An
initial investment in the order of EUR 500 million will be made, with the EU as the main con‐
tributor. Other donors and partners will be invited to join the Initiative to broaden its reach and
scope. The modality for the delivery will be a UN multi‐stakeholder trust fund, administered by
the Multi‐Partner Trust Fund Office, with the support of core agencies UNDP, UNFPA and UN
Women, and overseen by the Executive Office of the UN Secretary‐General. Facts and figures:
(1) about two thirds of countries in the developing regions have achieved gender parity in pri‐
mary education, (2) in Southern Asia, only 74 girls were enrolled in primary school for every 100
boys in 1990. By 2012, the enrolment ratios were the same for girls as for boys, (3) in sub‐Saharan
Africa, Oceania and Western Asia, girls still face barriers to entering both primary and secon‐
dary school, (4) women in Northern Africa hold less than one in five paid jobs in the non‐
agricultural sector. The proportion of women in paid employment outside the agriculture sector
has increased from 35 per cent in 1990 to 41 per cent in 2015, (5) in 46 countries, women now
hold more than 30 per cent of seats in national parliament in at least one chamber. Goals: (1) end
all forms of discrimination against all women and girls everywhere, (2) eliminate all forms of
violence against all women and girls in the public and private spheres, including trafficking and
sexual and other types of exploitation, (3) eliminate all harmful practices, such as child, early
and forced marriage and female genital mutilation, (4) recognize and value unpaid care and
domestic work through the provision of public services, infrastructure and social protection
policies and the promotion of shared responsibility within the household and the family as na‐
tionally appropriate, (5) ensure women’s full and effective participation and equal opportunities
for leadership at all levels of decision making in political, economic and public life, (6) ensure
universal access to sexual and reproductive health and reproductive rights as agreed in accor‐
dance with the Programme of Action of the International Conference on Population and Devel‐
opment and the Beijing Platform for Action and the outcome documents of their review confer‐
ences, (7) undertake reforms to give women equal rights to economic resources, as well as access
to ownership and control over land and other forms of property, financial services, inheritance
and natural resources, in accordance with national laws, (8) enhance the use of enabling technol‐
ogy, in particular information and communications technology, to promote the empowerment of
women and (9) adopt and strengthen sound policies and enforceable legislation for the promo‐
tion of gender equality and the empowerment of all women and girls at all levels.
2
250
2030, among others.
In Greece, in the past decades new data with regard to the relationship of
young women with education have emerged. These data include: a) the bal‐
anced participation of boys and girls in all levels of education, b) the best
school performance of girls, c) their more successful promotion within higher
education contexts, d) the fact that they constitute more than 50% of the stu‐
dent population, e) the fact that their successful presence in higher education
allows them to claim high status and profitable posts and f) the elimination of
anachronistic social perceptions concerning womenʹs education due to the
abovementioned facts. However, gender‐based social discrimination is still re‐
flected in the field of education, in all its forms and levels.
4. Gender Mainstreaming in Education in Greece
In earlier studies, focusing on girlsʹ access to various education levels and
on their low school performance as compared to that of boys, particularly in
science, but also in their educational and professional choices which are closely
related to their poor performance, the lower participation rate of girls in all
levels of education, which has decreased with their transition from lower to
higher educational levels, is highlighted3.
However, a different picture is emerging from a new wave of studies espe‐
cially as regards girls’ access to all levels of education both on a quantitative
level and on girls’ overall school performance. It is widely acknowledged that
both sexes’ equal access to Primary and Secondary Education is a fact that can‐
not be disputed. Women in several European countries as well as in Greece
represent more than 50% of the student population, a significant attribute of
women’s and European societies’ recent history. In fact, in a number of cases,
girls’ performance at school is better than that of boys and girls are more suc‐
cessfully promoted to Higher Education. What follows is that such academic
successes set the ground for claiming high‐status jobs.
With regard to the above, research shows than over the past thirty years the
population’s education level in Greece has considerably improved for both
genders despite the fact that women followed men with some delay. In par‐
ticular, the participation rates of boys and girls in Pre‐School and Primary
Education are similar in the last decades and range at 50% for each gender4.
The difference, which was primarily felt in Secondary Education in the 1970s
and 1980s, was then limited and does no longer exist. With reference to Terti‐
ary Education, the actual admission number has increased in the past three
decades. Today, girls account for the 53% of the student population in Tertiary
Education and for the 49% in Higher Education.
It is true that the increase in girlsʹ access to all levels of education, regardless
Frosi, L. et al., The Gender Factor and the School Reality in Primary and Secondary Educa‐
tion (Review Study). Research Center for Gender Equality (KETHI), (Athens: 2001).
4 Deligianni‐Kouimtzi, V., Ziogou, S., Gender and School Practice. (Thessaloniki: Vanias Pub‐
lications, 1997).
3
251
of the reasons that contributed to it, is a very positive development if com‐
pared to the results yielded by respective data in the past and although their
performance is satisfactory, come first in the Pan‐Hellenic exams and obtain
their degrees within prescribed time frames, etc. yet, women’s status in the la‐
bor market does not indicate the same positive change and improvement.
Women are still in occupations that have traditionally been classified as fe‐
male, which, for the most part, do not yield high profits and whose social
status, prestige and participation in decision‐making processes are restricted
while they are being affected by unemployment, at the same time.
It’s worth mentioning the admittedly positive growth in the rate of the fe‐
male gender’s access to Tertiary Education and the numerical superiority of
female teachers in Secondary Education, as compared to previous years. Girls
are also dominate the theoretical areas of knowledge and principally maintain
their attendance in Primary Education schools within the General Education
context. The penetration of girls in science as well as in male‐dominated theo‐
retical schools, such as the Law school, appears to be hesitant.
As far as teachers are concerned, the majority of them do not seem to be
aware of gender discrimination at school5 with the exception of few activities
and only in the case these activities are specifically assigned to them. They are
in favor of gender equality when this issue is directly addressed to them and
they assert that they are sensitized to gender‐related issues6. However, when
asked questions related to the individual factors that make up the grid of ine‐
quality, a truth that they are unable to perceive is unearthed which pertains to
the fact that they are pervaded with stereotypical ideas as to their gender and
social roles, a condition that encourages their contribution to the reproduction
of such stereotypes.
In particular, research reveals that teachers have different expectations for
boys and girls. They attribute stereotypical personality traits to the two sexes7.
They consider aggression, vivacity, spontaneity and innocence that exist side‐
by‐side with courage and competitiveness to be attributes that boys exemplify
while girls are characterized by guile and suspicion in their relationships with
people, as well as obedience, care, organizational skills, tenderness and sensi‐
tivity. They hold a negative attitude towards technical issues and occupations
and prefer dealing with issues that are associated with traditional female roles.
In terms of school performance, contradictions are evident, as according to
Kantarzi, E., The Image of a Woman. Intertemporal Research on the Primary School Read‐
ers. (Thessaloniki: Kiriakidi Brothers, 1991), Deligianni‐Kouimtzi, V. et al., Gender and the Greek
Educational Reality: Promoting Gender Equality Interventions in the Greek Educational System.
(Athens: Research Center for Gender Equality (KETHI), 2003).
6 Deligianni‐Kouimtzi, V., Ziogou, S., Gender and School Practice. (Thessaloniki: Vanias Pub‐
lications, 1997).
7 Savvidou, T., “Teacher’s Perceptions of Gender Differentiation,” Modern Education, 86
(1996), 35‐46, Kantartzi, E., “Gender Equality and Education: Boys and Girls Games,” Modern
Education, 38 (1987), 83‐84, Frosi, L., “Girls Study, Boys Perform: Teachers’ Views on the Teen‐
agers of the Two Sexes,” in: School, Transition and Gender Identities Processes, Seminar pro‐
ceedings, Thessaloniki, 2000.
5
252
Frosi’s research (2000), teachers argue that, in general, girls’ school perform‐
ance is better than that of boys’, but to a number of them, as shown in Stavri‐
dou et al. (1999), boys do better in practical courses while in Kantarzisʹ (1996)
research on teachers it appears that this distinction as regards gender pre‐
dominance in courses is not acceptable. The same applies to a high percentage
of teachers who took part in the study of Stavridou et al. (1999). However,
these contradictions could be investigated in the light of a different sample in
each of the studies in question. One of the findings pertains to the different
causes to which teachers attribute boys’ and girls’ good performance. This can
be the result of girls’ increased effort and boys’ special mental abilities.
Furthermore, teachers keep drawing a distinction between ʺmaleʺ and ʺfe‐
maleʺ courses, thus further distinguishing theoretical from science courses,
while adopting the distinction between ʺmaleʺ and ʺfemaleʺ occupations and
maintaining stereotypical perceptions of boys’ and girls’ characteristics. Also,
as research suggests, teachers ascribe women the leading role of a wife, mother
and housewife, a finding that is overturned in Deligianni et al.’s (2000) re‐
search, in which, in the first place at least, they oppose the traditional distribu‐
tion of roles which requires boys’ connection to the public sphere of life and
girls’ connection to the private one.
In fact, male scientists adopt far more traditional and stereotypical percep‐
tions about women’s position in the Greek society as compared to those of
their female counterparts in theoretical sciences, a fact that is found to be in
agreement with findings in foreign research, linking teachers’ specialization to
the extent to which traditional or not traditional perceptions are adopted by
them.
In addition, an examination of the study programs offered in Schools of
Humanities preparing teachers for Secondary Education, indicates an ex‐
tremely limited number of courses on raising future teachers’ awareness of
gender equality, in the departments and faculties they are offered. Three
courses are offered at the Faculty of Pedagogy of the University of Athens, two
courses are offered at the University of Thessaloniki and two at the University
of Ioannina.
At the Department of Philosophy of the University of Ioannina two courses
are offered while three courses are offered at the Department of Philosophy
and Social Studies of the School of Philosophy as well as at the Department of
Sociology of the School of Social Sciences of the University of Crete. Finally,
one to three courses are taught at the Departments of History and Archeology
of these three Universities (Aristotle, National and Kapodistrian University of
Athens, University of Crete). Based on the total number of courses offered at
each department, it can be concluded that gender‐related and social inequali‐
ties’ awareness‐raising modules could be increased and extended. As the gen‐
der issue is not examined independently but is treated as a submodule of a
broader course, the introduction of more courses that focus on sexes and
women’s position in socio‐educational processes is necessary.
It needs to be emphasized that only a number of these courses offered are
part of the core courses and the consequence of this academic practice is the
253
degradation of future teachers’ training in issues related to implementing gen‐
der equality in school practice, which is also pointed out by the teachers them‐
selves. This lack of teachers’ basic education has unquestionably added to the
limited effectiveness of any gender‐related training program, as it fails to en‐
rich education with new, sensitized workforce.
However, it should be pointed out that an upward trend can be observed in
the issues of gender and equal opportunities in university education in recent
years. Today, those who are scientifically involved in these matters are becom‐
ing increasingly aware that any regulatory change in education with the aim of
achieving gender equality needs to take teachers’ basic education and training
into consideration.
5. Results
The following results are based on empirical and theoretical studies
carried out by the Research Centre for Gender Equality in collaboration with
respectable researchers (2000, 2001, 2003, 2007 etc.) in Greece during the past
decades:
• As regards the composition of the student population, there is a significant
increase in the female share of the percentage who now take numerical
precedence over all levels of General Secondary Education, Initial Voca‐
tional Training and Higher Education. Nevertheless, a close examination of
the study options reveals a traditional gender division, leading to the con‐
clusion that girls’ and young women’s increased access to education, espe‐
cially to Higher Education, has not been enough to bring about a break from
the past of womenʹs education.
• As regards the formation of teen sex identities, it appears that school repro‐
duces the dominant ideologies on gender relations that lead to the forma‐
tion of hegemonic male and female identities, built on the basis of preserv‐
ing the role of males as breadwinners for boys and motherhood and family
creation as the exclusive mission of girls.
• Additionally, while girls’ attitude towards school is more positive than that
of boys’ and their academic performance is better in all areas of school life,
their successful presence is not reflected in the way their classmates and
teachers construct representations of the girl‐schoolgirl, representations that
remain extremely stereotypical and traditional. Furthermore, the formal di‐
vision of disciplines and school subjects in male and female ones is still
prevalent, despite boys’ attempts to enter areas of knowledge that have
typically been considered female, in their attempt to achieve better access to
the labor market.
• The same applies to professional choices, which are characterized by great
contradictions, especially in relation to womenʹs employment. Therefore,
while girls claim better study options and envision high‐status occupations,
they keep considering maternity and family as their primary priority, ignor‐
ing the conflict involved in linking the professional and family spheres.
It is also worth mentioning that the presence of women in the academic
254
world is extremely limited, which substantiates the claim that scientific knowl‐
edge retains its male‐centered character and impenetrable nature that prevent
female scientists from massively entering and controlling the knowledge defi‐
nition and production area.
In particular, with respect to male and female teachers and their place in the
educational hierarchy, this appears to be in contrast with women’s high par‐
ticipation rate in the workplace in case (for instance, 71% of the teachers in
Primary and Secondary Education are female, however their representation in
educational and trade union decision‐making centres is extremely low).
In conclusion, it could be stated that: (1) while the number of female stu‐
dents steadily increases and has even exceeded the number of male students in
certain areas and grades, the knowledge offered is still male‐centered and fo‐
cused on the interests of the male gender, (2) while the performance and over‐
all academic success of girls rise above those of boys, the agents in the educa‐
tional process create traditional representations for the female student and
raise expectations for her that reproduce patriarchal social structures, (3) while
boys and girls are now trained together and have come closer more than ever,
their knowledge as to the needs, desires, expectations, identities of the other
side is limited, (4) while school’s official aim is to educate both sexes on their
transition to the modern labor market, its internal and covert forces shape dif‐
ferent sex destinations and encourage discrimination against half of the stu‐
dent population, (5) while the curriculum sets the promotion of democratic
awareness in male and female students and the creation of equal citizens as of‐
ficial objectives, it appears to ignore important principles related to gender
equality that could enable it to successfully fulfill its purpose and (6) while
teachers accept social equality at a theoretical level and are opposed to dis‐
crimination and segregation, their views on gender relations are extremely
traditional and look at, especially male teachers, gender division of labor and
domestic roles as being self‐evident.
In a nutshell, school sometimes guides boys and girls directly or indirectly
into developing and internalizing personality traits, making study choices,
having aspirations of professional advancement, life visions and goals in ac‐
cordance with social perceptions and assumptions that are typical of their gen‐
der as well as in conjunction with the formal school curriculum and teachers’
designated place in the labour pyramid.
6. Recommendations
• Raising awareness of parents and educators, both male and female ones, so
that they can distinguish inequalities and promote equality within the edu‐
cation system. For instance, the design and implementation of teacher edu‐
cation/awareness‐raising programs are deemed necessary considering that
university departments ‐ with the exception of few‐ do not adequately pre‐
pare teachers/educators to adopt educational practices that promote gender
equality in education.
A best practice to be adopted is a training program under the auspices of
255
the National Center for Public Administration and Local Government (EK‐
DDA). The program in case is addressed at teachers and attempts the en‐
hancement of teaching through gender activities and the introduction of the
gender equality perspective in all disciplines while the corresponding princi‐
ples are promoted throughout the curriculum on the basis of existing teaching
manuals that take the form of projects.
The training program is aimed at enabling participants to:
ƒ develop expertise in gender equality issues, and in particular in gender
mainstreaming within the school community.
ƒ raise awareness, become sensitized and strengthen their knowledge and
skills in terms of issues related to the promotion of gender equality, gender
mainstreaming in pedagogical practices and the implementation of educa‐
tional interventions with regard to gender and discrimination.
ƒ comprehend specific issues and areas where gender inequalities and dis‐
crimination are (re)produced in the course of the educational process and
within the school community.
Another suggestion could be the introduction of modules, in combination
with knowledge which focuses on familiarizing students with family life issues
(economy, hygiene, sexual education issues, etc.), across the curriculum, pri‐
marily across the Middle school (Gymnasium) curriculum. For instance, the
concept of care provision in all its forms which constitutes a key thematic area
and the principal aim of the proposal in case and refers tothe attempt to in‐
clude boys into a process of accepting and ʺacquiringʺ the ideology as well as
the practical aspects involved in ʺcaringʺ could be included in the curriculum.
This proposal has been widely applied within the Dutch education system.
The enrichment of Primary Education curricula with Gender Mainstreaming
(womenʹs history, updating on the status of women in society today, the neces‐
sity for redistributing social roles in society, work and decision‐making centers
etc.). At this point, the importance of enhancing teaching curricula with lessons
that develop communication and companionship between members of the op‐
posite sex, the refutation of myths and ideological constructs around the hu‐
man body and gender relations are worth mentioning.
Another suggestion is the enrichment of School Vocational Guidance
courses with Gender Mainstreaming, which contributes to the goal of children
making professional, unaffected choices based on their inclinations, interests
and abilities. To successfully achieve this goal the conscientious encourage‐
ment of girls to turn to traditional ʺmaleʺ occupations and of boys to occupy
with care professions are required.
At the same time, the production of non‐sexist material and its use in all ar‐
eas in which child socialization occurs, particularly in Primary and Secondary
Education and education in general, is imperative, provided that we wish the
upcoming generations to live in a society which is less defined in terms of gen‐
der discrimination and inequality8. Within the field of education, an area char‐
acterized by a serious delay and strong resistance to overcoming gender dis‐
8
Theodorou E., Koutlis E., Gender Inequality in Education. (Athens, 2001).
256
crimination and where linguistic sexism is dominant is that of discourse and
language (Gasouka et al., 2014). The term ʺlinguistic sexismʺ refers to linguistic
interactions taking place in a male‐dominated society, in which language accu‐
rately reflects the power relationships between the two sexes while its function
serves the perpetuation and legitimization of men’s power at the expense of
women. It is our belief that the visibility of both sexes in discourse does not en‐
tail a ʺfeminist obsessionʺ, but rather a pressing political and democratic de‐
mand, a key prerequisite for achieving gender equality.
7. Conclusion
In conclusion, it can be argued that the provision of quality education,
which ensures students’ equal rights, irrespective of their gender, race, relig‐
ion, culture, sexual orientation, able‐bodiedness, etc., focuses on intercultural‐
ism and is based on gender equality and opportunities can shape a positive
environment for adult life not only for todayʹs generation but also for future
ones.
Policing in the Greek society’s diversity
Evangelos Stergioulis
Police Major General (Ret.), Greek Police, Tutor, Open University of Cyprus
1. Introduction
The extensive geopolitical changes that took place in the 1990s across
Europe along with the dramatic developments and consequences resulting
from regional war conflicts in the broader area, have deeply affected every
European society in many respects. These sociopolitical changes along with the
rapid development of technology and the increased free movement of people,
goods and capitals over the last two decades, have formulated a totally new
political, economic and social environment across Europe. As a result, the syn‐
thesis of European societies has radically changed and diversity has been the
main characteristic in the social structures. In other words, heterogeneity is the
main social feature that prevails everywhere affecting and challenging the tra‐
ditional structures of European societies.
Diversity, as a new societal element, has exercised a catalytic influence on
the modern policing both strategically and operationally. The Police had to re‐
view its traditional perception of policing and adjust it to the new social needs
and demands ensuing from diversity. To this end, the Police had to build up a
new strategy aiming to establish a close contact with the community based on
direct collaboration with the local authorities and the citizens themselves via
new forms of policing such as community policing, neighborhood policing and
voluntary policing. Over the last years, diversity has become a major compo‐
nent of police mission and the principle of equality and equal treatment a sub‐
stantial requirement in every aspect of police work.
2. Definition of diversity
The first efforts of the international community to define diversity date back
to the mid of the last century and still remain nowadays a significant basis on
which further studies continue to elaborate the meaning of diversity. Indeed,
the very first concept of diversity’s meaning can be found in the United Na‐
tions (UN) Declaration of Human Rights (1948)1 where it is stipulated that eve‐
ryone enjoys the rights and freedoms regardless of race, colour, sex, language,
religion and social origin. Within the same framework, it is also clearly ex‐
pressed the principle of equality and protection of the law to everyone without
any kind of discrimination2.
Universal Declaration of Human Rights, UN General Assembly, 10 December 1948, 217 A
(III), Article 2: “Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status”.
2 Ibid, Article 7: “All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal protection against any discrimination in vio‐
1
258
This very first approach on defining and protecting diversity was soon fol‐
lowed by the European Convention on Human Rights (1950), a legal frame‐
work setting out quite a similar concept of diversity with the one foreseen in
the UN Convention by also providing particular emphasis on the prohibition
of discriminations3. Soon, the efforts of the international community went fur‐
ther by establishing the Convention (1965) on the elimination of all forms of ra‐
cial discrimination4, which, in fact, supplemented and reinforced the legal
framework of the two previous conventions. Finally, at the beginning of the
current century, the European Union Directive (2000) was issued on the equal
treatment of persons irrespective of racial or ethnic origin by also clarifying for
the first time the meaning of direct and indirect discrimination5.
Having cited the above international legal instruments related to diversity,
it is clearly shown that in spite of a nonexistent common legal definition on
what is diversity, there are common and concrete human characteristics such
as race, colour, language, culture, sexual orientation and others which are fully
accepted and protected by the law and all together configure the concept of di‐
versity.
3. Diversity in Greece
Being in the crossroad of three continents, Greece has been deeply affected
by the above mentioned geopolitical changes, whilst, over the last years, the
country continue to bear a disproportionate burden of the migration and refu‐
gee crisis arising from the Middle East and the North African areas. Homoge‐
neity used to be the prevailing rule of the Greek society until the 1990s but
since then the Greek population has been progressively transformed in a di‐
verse society coupled with a great deal of social and political changes in this
lation of this Declaration and against any incitement to such discrimination”.
3 European Convention for the Protection of Human Rights and Fundamental Freedoms,
Rome, 4.XI.1950, Article 14, Prohibition of discrimination: “The enjoyment of the rights and
freedoms set forth in this Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.”
4 International Convention on the Elimination of All Forms of Racial Discrimination, General
Assembly resolution 2106 (XX) of 21 December 1965, Article 1.1: “In this Convention, the term
ʺracial discriminationʺ shall mean any distinction, exclusion, restriction or preference based on
race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fun‐
damental freedoms in the political, economic, social, cultural or any other field of public life.”
5 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin, Official Journal L 180, 19/07/2000, Article
2: Concept of discrimination: “(a) direct discrimination shall be taken to occur where one person
is treated less favourably than another is, has been or would be treated in a comparable situation
on grounds of racial or ethnic origin; (b) indirect discrimination shall be taken to occur where an
apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin
at a particular disadvantage compared with other persons, unless that provision, criterion or
practice is objectively justified by a legitimate aim and the means of achieving that aim are ap‐
propriate and necessary.”
259
respect. In accordance with the last census in 2011, the Greek society is config‐
ured as follows:
Diversity in the Greek Society
1991: percentage of foreigners living in Greece: 167.276 (1,6%)
2011: percentage of foreigners living in Greece: 912.000 (8,3%)
In total, sixteen (16) different nationalities, the main of which are:
52,7% Albania
8,3% Bulgaria
5,1% Romania
3,7% Pakistan
3,0% Georgia
Source: Greek Statistics Authority, Census 2011
In further detail, the above mentioned sixteen different nationalities cur‐
rently living in Greece are displayed in the following charts by nationality,
population as well as by living in urban and rural areas of the country6:
Undoubtedly, some of these numbers and nationalities would be aug‐
mented in the next census due to the fact that the 2011 census took place before
Hellenic Statistical Authority, “Demographic and Social Characteristics of the
Resident Population of Greece according to the 2011 Population,” 2014, 9-10.
6
260
the migration and refugees crisis. Nevertheless, the today’s structure of the
Greek society’s composition has never been the same in the contemporary his‐
tory of the country. Consequently, Greece, an EU member since 1981, has
striven to adjust its legal weaponry and the function of its public institutions to
the new social structuring, thus, to the new social demands ensuing from a di‐
verse society especially in the large urban centres. One of these public institu‐
tions that have been largely influenced by diversity is the Greek Police, the one
and only national police force of the country since 1984.
4. Policing in diversity
The Greek Police was founded in 1984 after an amalgamation of the City Po‐
lice and the Gendarmerie, the two national police forces that have existed and
operated in parallel since the foundation of the Greek State. In the course of
time, the Greek Police went through several reforms which aimed to modern‐
ize its structure and operation as an institution of the countryʹs democratic sys‐
tem. However, even today, the Greek Police are facing serious organizational,
administrative and operational problems, which have their roots in the distant
past and, unfortunately, which have been acute over that last years due to the
economic crisis that has plagued the country.
Policing has been always the essential element of the multifold function of
the police institution aiming at safeguarding the rule of law by preventing and
suppressing crime. In the course of time, policing has evolved under the influ‐
ence of various sociopolitical factors, but mainly taking into account the needs
and concerns of the societies in relation to crime development. Nowadays, po‐
licing is strongly governed by a societal dimension with main emphasis on as‐
pects directly related to human, social and individual rights7. Therefore, the
implementation of modern policing implies the involvement of the community
through close collaborations with the local authorities and the citizens them‐
selves. In short, this is the new dimension of today’s policing comparing to the
traditional way of policing which mainly focused on the suppression of crime.
Policing in Greece has kept its traditional form for quite many years8. The
beginning of this century found the Greek Police to strive in order to meet the
new challenges and demands due to the changing composition of the modern
society, while, at the same time, the Greek Police was focusing on the prepara‐
tion of the security measures with regard to the 2004 Olympic Games. In real‐
ity, the first efforts to increase awareness in the Greek police community on di‐
versity appear just after the conclusion of the Olympic Games by the issue of
the Code of Police Ethics9.
The provisions of the Code focused on the appropriate police behaviour in
Stergioulis, E., The Sociology of Police. (Athens: Papazisis Publishers, 2008), p. 35.
Stergioulis, E., The Greek Police after the Political Changeover. (Athens: Nomiki Vivliothiki,
2001), p. 127.
9 Hellenic Police Headquarters, Code of Police Conduct, Presidential Decree 254/2004,
03.12.2004.
7
8
261
the exercise of police duties by avoiding any prejudice due to colour, gender,
ethnic origin, ideology and religion, sexual orientation, age, disability, marital
status, economic and social position or any other distinctive element. A special
focus that was foreseen and properly elaborated in the this Code, was the pro‐
tection and care of children, women, the elderly, disabled people, refugees,
members of minorities, vulnerable social groups and victims of physical, psy‐
chological, sexual violence or exploitation.
In 2013, a first report of the Greek Ombudsman was published on the
alarming spread of racist violence in the country, with a number of police offi‐
cers to have been allegedly involved in several cases10. As a result, the Greek
Police Headquarters issued the Guide of Police Behaviour on Controls, Arrests
and Detentions of persons belonging to different religious and social vulner‐
able groups11. The Guide was addressed to all ranks of police officers and es‐
pecially to those who carry out operational duties by providing specific direc‐
tions on how they should deal with relevant cases avoiding discriminations
and respecting all forms of diversity.
In all, by setting up a Code of Police Behaviour and a Guide of Police Be‐
haviour on Controls, Arrests and Detentions of persons belonging to different
religious and social vulnerable groups, the Greek Police Headquarters aimed
to enhance awareness on critical issues in respect of diversity among police
staff and build up a police culture on respecting and protecting diversity in the
Greek society.
In parallel with the above initiatives in the fight against racist violence and
discriminations, the Greek Police proceeded with the creation of a special in‐
vestigative police service under a new legal framework12. In the past, every in‐
cident of discrimination was investigated by the competent regional police au‐
thority under the provisions of the criminal penal code.
Under the provisions of the new law, every penal case related to diversity is
directly under the investigating competences of the new anti‐racist police ser‐
vices. In particular, the new law provides for that the newly established anti‐
racist police services are authorized to investigate and prosecute crimes involv‐
ing discrimination or even acts and actions that could lead to discrimination,
hatred or violence against persons or social groups based on race, colour, relig‐
ion, origin, sexual orientation, gender identity or disability.
As far as the extension of racist and discrimination violence is concerned in
the Greek society, the cases registered by the Greek Police Headquarters in
2015‐2016 appear this social phenomenon to be restricted although there was a
considerable increase of incidents in 2016, as presented in the following chart:
Greek Ombudsman, Report on the phenomenon of racist violence in Greece. September
2013, pp. 6‐16.
11 Hellenic Police Headquarters, Guide of Police Behaviour on Controls, Arrests and Deten‐
tion. Issued in line with Directive 2000/43 / EC, Council Decision of 29 June 2000 and Directive
2000/78 / EC, Council of 27 November 2000, as incorporated into Greek Law 3304/2005. (Athens,
2013).
12 Presidential Decree 132/2012, establishing two (2) central police services (Athens & Thessa‐
loniki) and sixty‐eight (68) police offices throughout Greece.
10
262
HELLENIC POLICE STATISTICS*
CASES
2015
2016
Origin‐ Colour‐ Race
41
48
Religion
4
Sexual orientation
OFFENDERS
2015
2016
Citizens
27
51
24
Citizens & Police Officers
2
0
11
14
Citizens & Unknown Offendes
5
0
Sex
4
1
Police Officers
17
0
Disability
2
5
Organised Groups
2
7
TOTAL
62
92
Unknown Offenders
31
26
TOTAL OF CASES
84
84
* Source: State Security Directorate/Department of Social Issues and Racism Confrontation (2017)
These statistics of the Greek Police, however, remain, to a large extent, con‐
troversial comparing with the statistics provided by the Incident Reporting
Network for Racist Violence (RVRN). The RVRN was established in 2011 un‐
der the initiative of the National Commission for Human Rights and the Office
of the United Nations High Commissioner for Refugees in Greece, in which
more than 35 non‐governmental organizations and institutions participate
providing legal, medical, social or other supportive services to victims of racist
violence13. According to the RVRN recent annual reports, the situation of racist
violence incidents over the last two years is radically different as presented in
the below chart.
STATISTICS OF RACIST VIOLENCE RECORDING NETWORK*
2015
273 cases of racist violence with300victims
Of which:
75 cases against immigrants and refugees
185 cases against LGBTQ
(16 cases with police officers involved)
_______________________________________
2016
95 cases of racist violence with 130 victims
of which:
31 cases against immigrants and refugees
57 against LGBTQ
(6 cases with police officers involved)
* Source: RVRN Annual Reports 2015 & 2016
Racist Recording Violence Network, Annual Report 2016, http://rvrn.org/wp‐content/ up‐
loads/2017/04/Report_2016eng.pdf .
13
263
Undoubtedly, the statistics presented by the RVRN in comparison with the
statistics of the Greek Police are highlighting not only the apparent differences,
but mainly the fact that there is a considerable invisible side of the problem
since a significant number of racist violence and discrimination acts, are not of‐
ficially reported to the Police for obvious reasons. Another major and alarming
finding is the particularly high number of cases in which police officers are in‐
volved.
The involvement of police officers in various offences related to the concept
of diversity was also indicated and denounced by the Greek Ombudsman in a
special report on racism violence and discriminations in the country published
in 2013. According to the findings of this report, there have been recorded 252
cases of various penal actions related to colour, religion and sexual orientation,
of which in 47 cases law enforcement officers have been involved. These cases
concerned criminal actions against foreigners and other individuals who be‐
longed to different racial, religious and social groups.
Racist violence cases with the involvement of police officers have caused se‐
rious concerns within the leadership of the Greek Police and under the pres‐
sure of national competent organizations and international organizations such
as the European Commission on Racism and Intolerance of the Council of
Europe, a special law was passed in 2011, which established a new independ‐
ent service responsible for the investigation of law enforcement racist vio‐
lence14. However, that service has never taken up its tasks mainly due the un‐
willingness of law enforcement officials to be appointed in the new service.
Very recently, in 2016, a new law was passed by which the Greek Ombudsman
is entrusted with the authority to act as an independent service for the investi‐
gation of cases of police arbitrary conduct15.
In particular, under the new legal framework, the Greek Ombudsman is re‐
sponsible for collecting, recording, evaluating, investigating or requesting dis‐
ciplinary measures from competent authorities about complaints against per‐
sonnel of the Greek Police, the Coast Guard, the Fire Brigade, as well as the
staff of the detention facilities, who have been reported for violations and
abuse action during the execution of their duties such as tortures and other
violations of human dignity, deliberate offences against life, physical integrity,
health, personal or sexual freedom, illicit use of a firearms, illegal behaviour
for which there is evidence that it has been racially motivated or for discrimi‐
nations related to race, ethnic origin, birth, religion, disability, sexual orienta‐
tion, gender identity or sex.
However, the competence of the Ombudsman as a national investigation
mechanism of law enforcement arbitrary cases does not replace the compe‐
tences of other existing national institutions and authorities to receive and ex‐
amine arbitrary complaints. In conclusion, this new legal instrument which
came into effect in June 2017 has been welcomed by the Council of Europe as it
met one of its major recommendations in its latest report on racism in Greece,
14
15
Law 3938/2011, 31 March 2011.
Law 4443/2016, 9 December 2016.
264
as a good step forward in protecting diversity, but both the overall function
and the output of the new structure remain to be seen in the long term16.
5. Recommendations
In spite of the progress made in the improvement of policing in diversity
both at legislative and at operational level, racist violence and discrimination
incidents with the involvement of police officers still take place in Greece. In a
recent letter sent to the competent Greek ministries by the Commissioner for
Human Rights of the Council of Europe, it is mentioned that he continues to
receive alarming information concerning instances of alleged ill‐treatment, in‐
cluding torture, by Greek police officers against migrants, including minors
and persons of Roma origin alleged that they have been victims of severe beat‐
ings by police officers17.
In view of the above, it is highly recommended that the Greek Police should
proceed with adopting a national law enforcement strategy on protecting di‐
versity and safeguarding the principle of equality before the law. Such a strat‐
egy may include specific and feasible targets focusing on social vulnerable
groups in those areas where racism violence has frequently occurred over the
last years. Consequently, a set of measures and actions combined with aware‐
ness and preventive policing in consultation with the community authorities
shall be integrated in the diversity strategy and progressively implemented.
As already mentioned, policing should focus more on prevention aspects of
racist violence and discriminations acts in close cooperation with the compe‐
tent local authorities. To this end, contemporary forms of policing such as
community policing should be systematically implemented in those areas
where mostly racism violence has taken place in collaboration with the compe‐
tent community authorities, so as to enhance common understanding of the
problem and improve awareness amongst citizens. The philosophy of commu‐
nity policing is based on building up mutual trust and confidence between the
public and the Police. By placing patrolling officers on a daily basis in the
neighborhood and by encouraging interpersonal contacts between police offi‐
cers and citizens, a spirit of collaboration is created and awareness is enhanced
on issues of common interest such as protecting diversity and avoiding dis‐
criminations that may often be the causes of social unrests.
In the community policing, the police officers carry out their duties within
the society as active members and directly serve the citizens by sharing views
and concerns and working out together the most appropriate solutions to the
problems. In fact, the results of surveys on community policing show that close
co‐operation between the Community and the Police do increase the level of
Council of Europe, European Commission against Racism and Intolerance, “Report on
Greece” (fifth monitoring cycle), 24 February 2015, https://www.coe.int/t/dghl/monitoring/ecri/
country‐by‐country/greece/GRC‐CbC‐V‐2015‐001‐ENG.pdf.
17 Council of Europe, Letter of Commissioner for Human Rights (Ref: CommHR/NM/sf 020‐
2017), Strasbourg, 18 April 2017, https://wcd.coe.int/com.instranet.InstraServlet?command=
com.instranet.
16
265
citizens’ trust to police work whilst at the same time reduces the fear of crime18.
In fact, community policing has been implemented by the Greek Police
rather late. After two failed attempts to implement community policing in
Greece, in 2003 and in 2010, community policing has been implemented on a
permanent basis during the last three years and only in a limited number of
police departments across the country. In particular, in Athens and Thessalo‐
niki, the two bigger cities of the country where most of racist violence have
taken place, community policing is currently implemented in nine police de‐
partments in the area of Attica and in four police departments in Thessalo‐
niki19.
The police training is a substantial precondition in protecting and investi‐
gating diversity related offences20. Police officers of all ranks and mainly those
who work in the frontline need to comprehend the insight of the diversity con‐
cept in the society they serve and consequently which are the needs and re‐
quirements of the social vulnerable groups and ethnic minorities. It is impor‐
tant that through the appropriate training police officers should comprehend
that heterogeneity has been prevailing the today’s society structures, a fact that
has changed the standards of policing used in the traditional society.
Police officers should realize that every aspect of diversity is a human char‐
acteristic and it is fully protected by the constitutional law. They should be in a
position to manage diversity issues by recognizing and analyzing cases related
to various prejudices, discriminations and social stereotypes concerning indi‐
viduals or social groups and be able to adopt the most suitable approaches in
dealing with these successfully21.To this end, the Greek Police should create a
special human rights curriculum to integrate into the police academy curricula
as a compulsory and in‐class course. In this context, the Greek Police should
establish a close cooperation and partnerships with the academic community
as well as with national and international institutions such as the National
Human Rights Commission, the European Union Agency for Fundamental
Rights, the United Nations Office of the High Commissioner for Human
Rights, which have produced a remarkable work in this field and be able to of‐
fer their valuable experience and knowledge in protecting diversity.
Last but not least, the Greek Police shall review its recruitment system so as
to allow applicants from minority groups to join the police ranks, which, in the
course of time, will become the police staff more representative of the Greek
society’s diversity. Such a reform it shall progressively contribute to shaping a
Kappeler, V., Gaines, L., Community Policing: A Contemporary Perspective. 7th edition.
(New York & London: Routledge, 2015), p. 10.
19 Greek Police Headquarters, “Statistics ‐ Review of the total activity of the Greek Police for
the year 2016”, http://www.astynomia.gr/index.php?option=ozo_content&lang=%27..%27& per‐
form=view&id=70674&Itemid=1866&lang=.
20 Office of the United Nations, High Commissioner for Human Rights, Human Rights Stan‐
dards and Practice for the Police, Unites Nations, (New York ‐ Geneva, 2004).
21 European Union Agency for Fundamental Rights, Fundamental Rights‐based Police Train‐
ing. A Manual for Police Trainers. (Luxembourg: Publications Office of the European Union,
2013).
18
266
better perception of different cultures existing in the Greek society and conse‐
quently to reducing diversity related illegal practices. A brilliant example of
such a reform is the case of the London Metropolitan Police which has suc‐
ceeded in 2015 to reach a percentage of 12,4% of representation of black and
other minority ethnic background police officers in the total workforce22.
6. Conclusions
The Police are an essential institution of democracy safeguarding the law
and the order, preventing and suppressing crime, but also protecting the rights
and the freedoms of citizens without discriminations. Diversity is a key ele‐
ment of the today’s western societies and at the same time it constitutes a value
of democracy. By protecting and accepting diversity, social cohesion is
strengthened and public confidence in the Police is widely increased23.
The Police should always operate within the spirit of the democratic values,
thus protecting and supporting the principles of equality and equal treatment
of every citizen24. The police work is complex and theory should be tested in
practice. Above all, police practices must be always governed by equality, the
most significant principle in all aspects of police work. When equal treatment
is applied without prejudices, direct or indirect discriminations, it progres‐
sively leads to establishing social acceptance and support of police work.
The Greek Police has sustained a number of reforms especially after the
junta period (1967‐1974). Like every European Police, the Greek Police is also
surrounded by a historical, social and political environment which has exten‐
sively affected its structure and function over the years. In this historical and
political context, the Greek Police has never ceased to be blamed for a number
of critical mistakes during the civil war, the dictatorship as well as in the recent
past for cases of police brutality, unjustified violence and fatal shootings,
which have been denounced by the broader society and have catalytically in‐
fluenced the police image.
Apart from these facts, it is beyond any doubt that the Greek Police has re‐
corded an important work in the fight against crime and terrorism widely rec‐
ognized and appreciated, however, the successful policing in diversity of the
today’s Greek society is both an additional and critical challenge, the results of
which remain to be seen in the near future.
House of Commons, Home Affairs Committee, Police Diversity, First Report of Session
2016‐2017, published on 21 May 2016, p. 3, https://publications.parliament.uk/pa/cm201617/
cmselect/cmhaff/27/27.pdf.
23 Stergioulis, E. “Police and Diversity”, The Police Journal: Theory, Practice and Principles,
Sage Journals, 21 July 2017, http://journals.sagepub.com/doi/abs/10.1177/0032258X17721136?
journalCode=pjxa .
24 Council of Europe, The European Code of Police Ethics, Recommendation Rec. (2001) 10
adopted by the Committee of Ministers of the Council of Europe on 19 September 2001 and ex‐
planatory memorandum, (Council of Europe Publishing , Strasbourg, March 2002).
22
The Reform of the Security Council
Eleftherios Georgiadis
LLM KU Leuven
1. Introduction to the United Nations Security Council
After the establishment of the League of Nations in 1920, international or‐
ganizations1 slowly emerged as subjects of international law, thus marking the
end of the era of state dominance in international law. Although sovereign
states did –and still do‐ constitutes the most common example of a member of
an international organization, the latter is a distinct legal entity in that it has a
“distinct will” and does not merely expresses the collective position of its
members2. This is achieved by the organs of an international organization,
which serve as the means to exercise its will. In that sense, it is inconceivable
for an international organization not to possess any organs at all3.
Typically, international organizations possess a plenary, an executive and
an administrative body (e.g. secretariat). Nevertheless, depending on the na‐
ture and the purposes of an international organization, other organs are possi‐
ble, for example judicial bodies (e.g. a court) or bodies of a more specialized
nature (such as the Committee of the Regions, the European Economic and So‐
cial Council and the European Central Bank that are institutional organs of the
European Union)4.
With regard to the UN, six principal organs can be identified: the General
Assembly (plenary organ), the Security Council (executive organ), the Eco‐
nomic and Social Council, the Secretariat (administrative organ), the Interna‐
tional Court of Justice (judicial body) and the Trusteeship Council (now de‐
funct after the independence of Palau, the last remaining trust territory). Since
the organs of an international organization are of utmost importance for its
function, this Section will present the nature, aims and competences of the Se‐
curity Council before addressing the question of its reform, which constitutes
the core of this paper.
An international organization is a secondary subject of international law established by a
constitutive instrument, such as a treaty, with at least three members that can be sovereign
states, other international organizations or both, possessing at least one organ that expresses its
distinct will from its members.
2For the purpose of this analysis, we take into account only international organizations with
a legal personality. While possessing a legal personality is not a sine qua non characteristic of an
international organization, without this element the distinct will of an international organization
cannot be effectively exercised, thus rendering it a mere “instrument” of its members. This, in
turn, impedes the attainment of the purposes of an international organization. See also Klabbers,
J., Research Handbook on the Law of International Organizations. (Cheltenham: Edward Elgar,
2012).
3 Schermers, G. H., Niels B. M., International Institutional Law. (Leiden, Boston: Martinus Ni‐
jhoff Publishers, 2011).
4 Klabbers, J., An Introduction to International Organizations Law. (Cambridge: Cambridge
University Press, 2015).
1
268
1.1. Legal nature and composition
The Security Council is one of the most important UN organs alongside the
General Assembly and the Secretariat. It is considered to be the executive or‐
gan of the organization mainly due to its primary responsibility for the main‐
tenance of international peace and security through the adoption of legally
binding acts5.
The Security Council has been severely criticized by UN member states and
academia alike in that its composition continues to reflect the outcome of
World War II. Indeed, five countries, the winners of World War II6 plus the
People’s Republic of China, are represented in the Council on a permanent ba‐
sis, while ten other non‐permanent members7 are elected by the General As‐
sembly on a biannual basis for a term of two years8. Immediate re‐election of a
non‐permanent member having just exhausted its mandate is prohibited under
the UN Charter9.
Out of the 10 non‐permanent members, five must belong to the African
states and the Asian‐Pacific region, one to the Eastern European states, two to
the Latin American states and, finally, two to the so‐called “Western European
and Others” group. This regional classification of almost all UN member
states10 is important both for the function of the Security Council and for the
question of its reform and shall be thoroughly addressed in the latter half of
this paper.
The most distinctive feature of the Security Council, though, is the veto
power accorded to its five permanent members. Indeed, the concurring votes
of all permanent members of the Security Council are necessary in order for a
decision to be adopted11. This veto right does not apply for procedural mat‐
ters12. Nevertheless, if there is any disagreement in the Council regarding the
procedural or non‐procedural nature of a specific measure, then a voting pro‐
cedure is held for which the veto right of the permanent members does apply,
effectively arming them with a double veto13. This privilege of the five perma‐
nent members of the Security Council (P5) regarding their veto powers has
been often described as a derogation from the principle of sovereign equality
A more detailed explanation is provided in Section 2.2.
Them being France, the Russian Federation, the United Kingdom and the United States of
America.
7 Up until the amendment of article 23 of the UN Charter in 1963 (effective since 1965), the
number of non‐permanent seats at the Security Council was six.
8 Article 23(1) UN Charter.
9 Article 23(2) UN Charter.
10 While not belonging to any regional group (Africa, Asia‐Pacific, Eastern Europe, Latin
America, Western European and Others group), the United States of America is an observer at
the meetings of the Western European and others group, while Kiribati has opted not to partici‐
pate in any regional groups.
11 Article 27(3) UN Charter.
12 Article 27(2) UN Charter.
13 Conforti, B., The Law and Practice of the United Nations. (Boston, Leiden: Martinus Nijhoff
Publishers, 2018).
5
6
269
of all UN member states.
1.2. Competences
The Security Council is entrusted with the maintenance of international
peace and security.14 As clarified in the Certain Expenses Advisory Opinion,
this responsibility of the Security Council is primary, yet not exclusive, since
the General Assembly may also be concerned, discuss and even recommend
measures:
“For the peaceful adjustment of any situation, regardless of origin, which it deems
likely to impair the general welfare or friendly relations among nations, including
situations resulting from a violation of the provisions of the present Charter setting
forth the purposes and principles of the United Nations.ʺ15
The Uniting for Peace Resolution, providing that:
“If the Security Council, because of lack of unanimity of the permanent members,
fails to exercise its primary responsibility to act as required to maintain international
peace and security..., the General Assembly shall consider the matter immediately with
the view to making recommendations to Members...in order to restore international
peace and security.”16
is a perfect illustration of this case law, which is anyway supported by the
wording of article 11 of the UN Charter.
However, unlike recommendations which can also be addressed by the
General Assembly, only the Security Council may adopt coercive measures,
pursuant to Chapter 7 of the UN Charter, in the form of decisions for the main‐
tenance of international peace and security17. These decisions are legally bind‐
ing with an erga omnes effect, meaning that even non‐members of the UN are
bound by them. Because of the fact that the Security Council is the only UN
organ that can both adopt legally binding acts and impose the enforcement of
those acts on members and non‐members of the UN alike, it is considered to be
the executive organ of the UN.
What is more, a combination of articles 48 and 103 of the UN Charter re‐
veals that legal obligations stemming from Security Council decisions take
precedence over any other conflicting rule of international law18. Nevertheless,
they are still circumscribed by the purposes19 and principles20 of the United Na‐
Article 24(1) UN Charter.
Available at: http://www.icj‐cij.org/files/case‐related/49/049‐19620720‐ADV‐01‐00‐EN.pdf.
16 Available at: http://www.un‐documents.net/a5r377.htm.
17 As opposed to coercive measures (e.g. restrictive measures or military action), peacekeep‐
ing operations are usually employed under Chapter 6 of the UN Charter, with the exception of
the Korean and the Gulf War in which cases the legal basis for the employment of peacekeeping
operations was Chapter 7 of the Charter instead.
18 See also Libyan Arab Jamahiriya v. United States of America (ICJ, 27 February 1998). Avai‐
lable at:http://www.icj‐cij.org/files/case‐related/89/089‐19980227‐JUD‐01‐00‐EN.pdf.
19 Article 1 of the UN Charter.
20 Article 2 of the UN Charter.
14
15
270
tions. This was affirmed in the Al Jedda v. United Kingdom case,21 where Secu‐
rity Council decision no. 1546/2004 was interpreted in harmony with the pro‐
hibition of indefinite internment without trial enshrined in article 5 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR).
The reasoning was that the respect for and promotion of human rights is
one of the purposes of the United Nations under the Charter (article 1(3)
thereof) and that, consequently, a Security Council decision authorizing all
member states participating in the multinational force to take any measures to
counter security threats and terrorist acts in Iraq could not include measures
violating human rights, such as indefinite internment without trial. Further‐
more, article 25 was invoked, which obliges member states:
“to accept and carry out the decisions of the Security Council in accordance with
the Charter”.
The rest of the competences of the Security Council include the adoption of
a positive recommendation as a prerequisite for the election of the Secretary
General of the United Nations,22 the adoption of a positive recommendation for
the acceptance of new members23 as well as for the suspension of the rights or
the expulsion of a member state.24 Last but not least, the Security Council is re‐
sponsible for the adoption of measures in case of violation of the Treaty on the
Non‐Proliferation of Nuclear Weapons as well as the Convention on the Prohi‐
bition of the Development, Production, Stockpiling and Use of Chemical
Weapons25.
2. The necessity of reform
It is without doubt that the competences of the Security Council as de‐
scribed above are of utmost importance for the international community as a
whole. This is why any shortcomings in the internal functioning as well as in
the capacity of the Council to discharge of its duties trigger immediate debate.
Taking into account the privileges of the permanent members26 in a chang‐
ing geopolitical reality and the often weak response of the Council to recent in‐
ternational conflicts,27 it is easily understood why the question of the reform of
Al Jedda v. The United Kingdom App no 27021/08 (ECtHR, 7 July 2011). Available at:
https://www.law.umich.edu/facultyhome/drwcasebook/Documents/Documents/14.6_Al‐Jedda
%202011%20ECHR.pdf.
22 Article 97 of the UN Charter.
23 Article 4(2) of the UN Charter.
24 Articles 5 and 6 of the UN Charter. While articles 5 and 6 of the Charter have never been
directly invoked, articles 4‐6 have been used mutatis mutandis in the case of the Federal Repub‐
lic of Yugoslavia (Serbia‐Montenegro) in 1992‐1993. The Federal Republic of Yugoslavia was
deemed not to have been a successor state of the Socialist Federal Republic of Yugoslavia and,
therefore, had to reapply for membership.
25 See also article 26 of the UN Charter.
26 See Section 1.1 above.
27 See Section 2.1 below.
21
271
the Security Council is currently high on the UN agenda. In order to better un‐
derstand the issue, though, an overview of its emergence and its development
is necessary. Through this short historical narrative, the fundamental notions
transcending the issue will also come to the surface.
2.1. Short historical overview
During the Cold War, the Security Council was an area of political conflict
between the United States of America (USA) and the Union of Soviet Socialist
Republics (USSR), which consecutively used their veto power to block unfa‐
vorable decisions, thus greatly reducing its efficiency. With the dissolution of
the USSR and its succession by the Russian Federation, the question of reform‐
ing the Security Council came to the surface for fear that future rivalries
among the permanent members of the Security Council would perpetuate the
Cold War climate in the Council.
As early as December 1993, the Open‐ended Working Group on Security
Council Reform (OEWG) was established with the aim to propose amend‐
ments to the organization as well as the rules of procedure of the Security
Council.28This initiative continues to reflect the growing need for a reformed
Security Council, although after more than twenty four years it still has not
produced any concrete results.
What is more, the failure of the Security Council to prevent the genocide in
Rwanda (1994), the military intervention of the NATO forces in Kosovo (1999)
and Iraq (2003) without a prior decision by the Security Council, as well as the
more recent failure of the Security Council to respond to the humanitarian dis‐
aster in Syria have popularized the idea of remodeling the Security Council
both among the majority of the UN member states and within academic circles.
Last but not least, it must be noted that the current composition of the Secu‐
rity Council as analyzed in Section 1.1 does not correspond to modern geopo‐
litical reality. Indeed, the pluralistic nature of modern geopolitics and the rise
of new rapidly‐growing economies are in stark contrast with the privileges of
the five permanent members of the Council.
All the above mentioned points have been taken into consideration by the
newly‐established Accountability, Coherence and Transparency (ACT) initia‐
tive, a cross‐regional group of small and mid‐sized countries that has been
working towards structural internal reforms and democratic legitimacy en‐
hancement for the Security Council. The ACT group has provided some very
interesting and substantive proposals for the remodeling of the Security Coun‐
cil, which will be discussed in Section 5.
Finally, the Elders, a non‐governmental organization (NGO) founded in
2007 by Nelson Mandela and consisted of former officials of national govern‐
ments or international organizations, activists and renowned academics for the
respect for and the promotion of human rights, have issued a detailed state‐
Lehmann, V., “Reforming the Working Methods of the UN Security Council”, Friedrich
Ebert Stiftung, 2013.
28
272
ment in February 2015 for the reform of the Security Council. This statement
further adds to the proposals of the ACT group and will be also discussed in
Section 5.
2.2. Core axes
In principle, the question of the reform of the Security Council has revolved
around two fundamental notions: a) the equal representation of all UN mem‐
ber states or at least of all regional groups in the Security Council, and b) the
effective function of the Security Council29.
For the most part, the different proposals of the UN member states for a re‐
modeling of the Security Council, which will be thoroughly presented in the
following Section, have limited themselves to these notions. Nevertheless, re‐
forms that target the accountability and the transparency of the Security Coun‐
cil have proven to be far more accurate and useful than the traditional bloc po‐
sitions of the UN member states.
3. Conflicting proposals
Apart from the UN as an international organization, the reform of the Secu‐
rity Council is an issue of interest for the UN member states as well, which
have not stayed unengaged; various bloc formations have been created reflect‐
ing their different, often conflicting, positions on the issue. However, it is im‐
portant to note that the common denominator of those positions is that they
primarily serve the national interests of the countries of each bloc formation.
This is easily explained by the fact that the geopolitical power of the UN mem‐
ber states seated in the Security Council each time is significantly elevated.
This Section will now analyze both the profile of each bloc formation as well
as their proposals.
3.1. The different bloc formations
Three main alliances have so far dominated the discussions among the UN
member states for the reform of the Security Council: the G4 group, the Unit‐
ing for Consensus group as well as the Elzuwini Consensus consisted by Afri‐
can nations working in close cooperation with the African Union (AU)30.
The most well‐known amongst them, the G4 group, is made up by Brazil,
Germany, India and Japan, which have traditionally supported each other’s
bids for permanent seats in the Security Council. As expected, these countries
have already figured among the elected non‐permanent members of the Coun‐
Gould, M., Rablen, M., “Reform of the United Nations Security Council: Equity and Effi‐
ciency.” Public Choice 173 (1‐2) (2017), 145‐168.
30 Nadin, P., ʺUnited Nations Security Council Reformʺ. Our World. Available at: https://our
world.unu.edu/en/united‐nations‐security‐council‐reform.
29
273
cil numerous times31.
On the other hand, the Uniting for Consensus group is primarily consisted
by countries that act as “regional rivals” of each G4 member32. However,
unlike the G4 countries, they favor the enhancement of the role of regional
groups rather than the introduction of more permanent seats in the Security
Council.
The last bloc formation is the position of the African states and the AU, the
Elzuwini Consensus. It took its name after a valley in central Swaziland where
the relevant international agreement was reached in 2005. The Consensus was
formally adopted at an extraordinary session of the Executive Council of the
AU in March 2005, in Addis Ababa33. Its main purpose is to strengthen the in‐
fluence of the African countries, while also calling for a “more representative
and democratic Security Council”.
3.2. The different proposals
Admittedly, the profile of the three block formations, as adumbrated above,
is largely reflected into their proposals for reform of the Security Council. This
is in harmony with our previous observation that the UN member states view
the issue of the reform as an opportunity to strengthen their position in the or‐
ganization.
Accordingly, the G4 group envisages the enlargement of the Security Coun‐
cil to a total of twenty five members by adding six permanent seats and four
non‐permanent ones. Aside from the members of the G4 group (Brazil, Ger‐
many, India, and Japan), two African countries are invited to claim the remain‐
ing permanent seats. This is probably an appeal of the G4 group to the devel‐
oping countries in the African continent with the aim to gain support for their
proposal34.
Furthermore, the G4 countries are also ready to accept the removal of the
veto power for the six new permanent seats in the Council. This is undoubt‐
edly an attempt to popularize their proposals among small and mid‐sized
countries, but it also reveals their desire to claim permanent status in the Secu‐
rity Council at any cost.
The terms of every UN member in the Security Council can be found using the following
specialized search engine: the Wayback Machine, Available at: https://web.archive.org/web/
20100706231352/http://www.un.org/sc/members.asp.
32 Italy, which took the initiative for the establishment of the group in the first place, is seen
as a competitor of Germany for a permanent seat in the Security Council, Mexico and Argentina
are political and economic rivals of Brazil in the region of Latin America, which also describes
the position of South Korea vis‐à‐vis Japan, and, finally, Pakistan has been a historical adversary
of India. Other members of the Uniting for Consensus group (often dubbed the “Coffee club”)
include Canada, Colombia, Costa Rica, Malta, San Marino and Spain.
33 Maloka, E., Bhekinkosi, M. “Walking a Tightrope: SA, Africa and the UN — Helen Suzman
Foundation,” Hsf.Org.Za. 2018, Available at: http://hsf.org.za/resource‐centre/focus/ issues‐31‐
40/issue‐40‐fourth‐quarter‐2005/walking‐a‐tightrope‐sa‐africa‐and‐the‐un.
34 Nadin, P., “United Nations Security Council Reform”. Our World. Available at: https://our
world.unu.edu/en/united‐nations‐security‐council‐reform.
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By far the most interesting propositions have been put forth by the Uniting
for Consensus group, which uses the classification of the UN member states
into regional groups as a tool to revamp the Security Council. At this point, it
is useful to elaborate on the notion of regional grouping in the UN.
Regional groups have continuously served as informal fora within the UN
framework for policy coordination and common front formation (the so‐called
“blocs”) for negotiations and voting among countries with geographical, cul‐
tural and, usually, economic ties. More importantly, though, it is the regional
groups that control the elections for the various UN‐related positions, such as
the non‐permanent seats in the Security Council, the members of the Economic
and Social Council as well as the members of the Human Rights Committee.
The position of the President of the United Nations General Assembly rotates
amongst the regional groups and the election of the Secretary General takes
into account the candidate’s region of origin. Consequently, while certainly not
overpowered, regional grouping is a key concept for the functioning of the
UN.
There are five regional groups as mentioned above: Africa, Asia‐Pacific,
Eastern Europe, Latin America and the peculiar “Western European and Oth‐
ers (WEOG)” group, which includes geographical Western Europe along with
Finland, Greece, Turkey, Israel, Canada, Australia and New Zealand. The
United States also participate as an observer in the WEOG group35. Out of the
non‐permanent members of the Security Council, five must belong to the Afri‐
can states and the Asian‐Pacific region, one to the Eastern European states, two
to the Latin American states and, finally, two to the so‐called “Western Euro‐
pean and Others” group36.
The Uniting for Consensus (UfC) group takes regional grouping a step fur‐
ther. It proposes the introduction of a new category of seats to the Security
Council, ten new permanent seats, each of which will be reserved for a specific
regional group. The members of each regional group will then select the coun‐
tries that will be offered the seat(s) reserved for their group after a voting pro‐
cedure. These countries will be selected for a two‐year mandate and will also
be eligible for re‐election. The total number of the seats in the Council will,
thusly, rise to twenty five. This proposal was officially put forth during the UN
General Assembly session in 2005.
A variation of this proposal favors a system of rotation within the five re‐
gional groups for the allocation of their respective seats. Consequently, no vot‐
ing procedure will take place, but the new non‐permanent seats reserved for
each regional group will be filled by the countries that will be next on a list es‐
pecially drawn up for this purpose by the members of each regional group37.
An even more radical proposition would be to reserve some or all of the
The detailed regional grouping of the UN member states is available at the official site of
the UN: https://www.un.org/depts/DGACM/RegionalGroups.shtml.
36 See Section 1.1 and Butler, R., “Reform of the United Nations Security Council,” Penn State
Journal of Law and International Affairs 1(1) (2012).
37 Gould, M., Rablen, M., “Reform of the United Nations Security Council: Equity and Effi‐
ciency,” Public Choice 173 (1‐2) (2017), 145‐168.
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non‐permanent seats for free trade areas, customs unions or geopolitical enti‐
ties in general (ultra‐regionalism). In fact, a permanent seat with veto rights in
the Security Council has since recently been a desire of the European Union38.
Besides the official UfC position, a few members of the UfC group alterna‐
tively suggest39 the introduction of new non‐permanent seats, alongside the ex‐
isting ten ones, with a longer mandate of three to five (preferably four) years,
which will not be eligible for re‐election, or with a mandate of two years with
the possibility of up to two immediate re‐elections40.
Finally, the proposal of the Elzuwini Consensus, formally adopted by the
AU as already mentioned,41 includes as a priority the addition to the Security
Council of two permanent seats with veto rights as well as two non‐permanent
seats, which will be filled by African countries. Moreover, the UN member
states from Africa discuss the inclusion of four additional permanent seats for
the rest of the regional groups42 with veto rights. This means that should their
proposal be accepted, the number of countries with veto rights in the Council
will be eleven, which will render the adoption of recommendations and deci‐
sions much harder.
Therefore, in an attempt to attenuate their proposal, the African states seek
to weaken the effects of a veto cast by requiring two countries to use their veto
rights in order for a recommendation or decision to be rejected. The weakening
of the veto right is the only substantial reform identified in the proposals of the
three bloc formations and, as it will be elaborated in Section 5, it plays a central
role in finding alternative solutions to the reform of the Security Council.
4. Critical evaluation
As mentioned in Section 2.2, the basic principles around which the question
of the reform of the Security Council revolves are the equal representation of
the UN member states in the Council and its efficiency. Consequently, the pro‐
posals of the three bloc formations presented in Section 3.2 will be appraised
under the light of these principles. In addition, the lack of substantive sugges‐
tions in the proposals of the UN member states, which would be able to recon‐
cile a more representative and democratically legitimate Security Council with
a more efficient one, will be underlined towards the end of this Section.
In terms of structural reforms, what the various proposals of the UN mem‐
ber states have in common is that they view the reform of the Security Council
through the increase of its seats, permanent and non‐permanent altogether.
See European Parliament resolution of 11 May 2011 on the EU as a global actor: its role in
multilateral organizations (2010/2298 (INI)). Available at: http://www.europarl.europa.eu/sides/
getDoc.do?type=TA&language=EN&reference=P7‐TA‐2011‐229.
39 Namely Colombia and Italy.
40 Ronzitti, N., “The Reform of the UN Security Council,” Documenti IAI 1013, Istituto Affari
Internazionali. (2010) Available at: http://www.iai.it/sites/default/files/iai1013.pdf.
41 See Section 3.1.
42 More specifically, two seats for the Asia‐Pacific region, one seat for Latin America and one
seat for the WEOG.
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Nevertheless, it is misconceived that equal representation of all UN member
states in the Council necessarily flows from such an increase.
Indeed, recent research has proven that, depending on the specificities of
each proposal, a “populous” Security Council either tries to focus on equal
representation to the detriment of its efficiency, or vice versa. Some proposals
even fail in both, while only the weakening of the veto power seems to per‐
form positively in both axes.
To be more specific, the addition of new permanent members to the Secu‐
rity Council, even without veto rights, will only strengthen the position of spe‐
cific UN members, the so‐called “regional powers”43. The more permanent
seats in the Security Council, the more influential the world’s regional powers
will be in the United Nations, while small and mid‐sized countries will be re‐
stricted to a secondary role.
The same outcome will be observed if the official propositions of the UfC
group are implemented. The new category of non‐permanent seats that this
bloc formation proposes will be continuously filled by the regional powers of
each regional group, which will be able to renew their mandate due to their
political, economic and military influence on the rest of the countries of their
respective group, acquiring the bizarre status of a quasi‐permanent member.
On the other hand, a system of rotation for the non‐permanent seats re‐
served for each regional group may prove to be unfair this time for the re‐
gional powers. Indeed, regional powers are more populous, have an advanced
economy and military, and are usually directly or indirectly involved in issues
with cross‐border effects including regional disputes. Consequently, despite
the fact that they should never be transformed into quasi‐permanent members,
they “deserve” more frequent election in the Security Council.
Finally, the presence of geopolitical entities in the Security Council, such as
the European Union, with voting rights is a significant disadvantage for all
those UN members situated in regions that have not achieved such a level of
harmonization and/or unification in the economic and political sphere as
Europe or North America.
With regard to efficiency, the smooth functioning of the Security Council is
endangered if an excessive enlargement takes place. However, if this enlarge‐
ment of the Security Council also leads to the multiplication of the veto rights,
then it is without doubt that the Security Council will be paralyzed.
The above analysis demonstrates that equal representation in the Security
Council is in reverse proportion to its efficiency. While these two axes seem ir‐
reconcilable at first glance, it is our firm belief that if any proposal for reform of
the Security Council does not confine itself to these notions, but also addresses
the issues of accountability and transparency, then a best possible result will be
attained. This will be the task of the following Section.
In other words, the most politically and economically influential countries in each region.
For example, Brazil is a regional power in Latin America, India in Asia and Australia in the Pa‐
cific.
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5. Legal nature and composition
The critical evaluation of the various proposals for reform of the Security
Council has so far identified that a mere tampering with the number of its
seats, permanent and non‐permanent altogether, does not provide any viable
solution. Therefore, the aim of this Section is to underline those structural re‐
forms that are necessary to successfully revamp the Security Council in accor‐
dance with the principles set out in Section 2.2 (equal representation and effi‐
ciency).
Furthermore, emphasis will be given to alternative action and solutions
which could complement those structural reforms. This second category of
measures is mostly found in the working papers of the ACT initiative as well
as in the recent statement by the Elders, in 2015.
5.1. Structural reforms
It has been previously mentioned that the weakening of the veto is a key
element in the remodeling of the Security Council. This is all the more true if
an increase of its permanent members armed with veto rights takes place; an
enlarged Security Council will become the victim of multiple vetoes cast by
permanent members that want to secure their national interests and is doomed
to become even more slow‐moving than today.
Therefore, to our view, a combination of the proposals of the UfC group and
the Elzuwini Consensus is desirable. That means that the Security Council
could be enlarged to include new non‐permanent seats reserved for each re‐
gional group, as well as three permanent seats with veto rights especially for
UN states from the African and the Latin American region, as well as from
geographical Middle East, which do not feature among the P5. At the same
time, however, two negative votes by the permanent members must become a
precondition for a decision or recommendation to be rejected.
Moreover, the very restructuring of the regional groups is necessary. Mod‐
ern geopolitical reality renders the Eastern European region nugatory, while a
unified regional group for the Muslim world is still non‐existent. In addition,
the peculiar “WEOG” group is more complicated than necessary and has been
criticized for being “overpowered” and over‐represented in the Council44.
Consequently, a single regional group for Europe and another one for the
Americas45 are preferable. Another group for the Muslim countries of the Mid‐
dle East and the North Africa (MENA) region is indispensable. Finally, Austra‐
lia and New Zealand could be classified in the Asia‐Pacific region, while the
current African group will be comprised by the countries of the sub‐Saharan
Africa. While attempting to balance equal representation in the Security Coun‐
cil with efficiency, the aforementioned suggestions cannot be viable solutions
France, the United Kingdom and the United States of America, three permanent Security
Council members, all belong to the WEOG as mentioned in Section 1.1.
45 With the full participation of the United States.
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by themselves. Instead, they must be combined with the more substantial
propositions of the ACT initiative and “the Elders”.
5.2. Emphasis on alternative proposals
By alternative proposals, we mean measures that, while not altering the le‐
gal framework under which the Security Council will function (e.g. composi‐
tion, voting and veto rights), they attempt to enhance its accountability as well
as the transparency of its decision‐making procedure. As already mentioned,
these proposals are for the most part to be found in the works of the ACT ini‐
tiative46 and the NGO “the Elders”,47 which were introduced in Section 2.1.
Firstly, more public and open meetings as well as regular briefings with the
UN members that do not hold seats in the Security Council are envisaged.
What is more, enhanced consultations with the delegations of the countries
particularly interested in or affected by an issue on the agenda of the Council
are also proposed. Formal sessions and informal interactive briefings at the
end of the presidencies for an evaluation of the progress made are indicative of
this attempt to render the Security Council more accountable and transparent,
and to reverse the current situation where 40% of the meetings take place in
“closed” consultations.
Secondly, the adoption of meetings under the so‐called “Arria formula”,
that is informal meetings organized by the members of the Security Council
with representatives of other regional organizations, the civil society or the
leadership of population groups affected by an issue discussed during the ses‐
sions of the Council, is probably the most important measure towards a more
transparent Security Council.
In addition, a new procedure for electing both the chairpersons of the sub‐
sidiary organs of the Security Council, as well as the very Secretary General, is
also on the list of these suggestions. With special regard to the election of the
UN Secretary General, the Elders recommend multiple candidacies for ap‐
pointment after a timely, thorough and transparent search for the best quali‐
fied persons irrespective of their regional origin or gender.48 Moreover, they
suggest that the Secretary General be elected for a single, non‐renewable man‐
date of seven years. Last but not least, the Elders reject any legal obligation or
A recent working paper on the profile and the positions of the ACT group can be found at:
http://centerforunreform.org/sites/default/files/FACT%20SHEET%20ACT%20June%202015.pdf.
47 Statement by the Elders, 7 February 2015. Available at: https://theelders.org/sites/default/
files/2015‐04‐22_elders‐statement‐strengthening‐the‐un.pdf.
48 It is the latest tendency to search for candidates from regional groups that have never fea‐
tured in the position of the Secretary General. Furthermore, a strong movement for the ap‐
pointment of the first female Secretary General is present within the UN. For example, before the
appointment of the current Secretary General Antonio Guterres, there was strong support for the
election of a female candidate from Eastern Europe. While there is a necessity for the first female
Secretary General, the Elders stress the importance that emphasis should not be given on the
gender of a candidate when there is a highly qualified male competitor that is objectively suit‐
able for the position. The same applies mutatis mutandis to the issue of the regional origin of the
Secretary General.
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loose pressure on the Secretary General to assign posts to officials depending
on their national or regional origin in an attempt to forestall clientelism.
Finally, the weakening of the veto also features among the suggestions of
the ACT group and the Elders, but in a different, non‐structural form. It acts as
a plead to the permanent members of the Security Council so that they pledge
not to use their veto power in cases that concern serious and continuous viola‐
tions of the fundamental rights of whole population groups, such as genocides,
civil wars, or regional crises. The permanent members should be obliged to
present a better counterproposal in order to be excused from blocking the
adoption of a measure aiming to combat the aforementioned situations49.
While not belonging to any of the two axes (equal representation‐efficiency)
for the reform of the Security Council, accountability and transparency in the
Security Council should become a third guiding pillar, which will complete
any structural reforms and will finally recover the balance between equity and
efficient functioning. It is the position of this paper that measures touching
upon the issues of accountability and transparency are the most useful and
important ones.
6. Conclusions
Unfortunately, the conflicting national interests of the UN member states
and the three block formations that participate in the debate of the reform of
the Security Council severely hinder any potential progress. In addition, any
remodeling of the rules of procedure and the general functioning of the Secu‐
rity Council needs to be approved by the member states seated in it. This
means that the permanent members of the Security Council will not hesitate to
use their “double veto” rights50 should they feel threatened by any new model
envisaged for the UN’s executive organ. Indeed, the proposals of the ACT
group and the Elders, as well as the French initiative are a glimpse of hope.
Nevertheless, they still belong to the sphere of soft law. Consequently, the re‐
form of the Security Council is still a very difficult project with few chances for
success at least for the time being.
To this event, see the Political statement on the suspension of the veto in case of mass
atrocities Presented by France and Mexico. Available at: https://onu.delegfrance.org/IMG/
pdf/2015_08_07_veto_political_declaration_en.pdf.
50 See Section 1.1 above.
49