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Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions

Published online by Cambridge University Press:  27 February 2017

August Reinisch
August Reinisch*
Affiliation:
University of Vienna, Bologna Center, SAIS/Johns Hopkins University
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American Journal of International Law , Volume 95 , Issue 4 , October 2001 , pp. 851 - 872
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Copyright © American Society of International Law 2001

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References

1 Supplement to an Agenda For Peace, UN Doc. A/50/60–S/1995/1, para. 66 (1995).

2 There is a vast literature on these issues. See, e.g., Margaret, P. Doxey, International Sanctions in Contemporary Perspective (2d ed. 1996)Google Scholar; Daniel, W. Drezner, The Sanctions Paradox: Economic Statecraft and International Relations (1999)Google Scholar; Gary, Clyde Hufbauer, Jeffrey, J. Schott, & Kimberly, Ann Elliott, Economic Sanctions Reconsidered (2d ed. 1990)Google Scholar.

3 Supplement to an Agenda for Peace, supra note 1, para. 70.

4 See Millennium Report of the Secretary-General of the United Nations, “We the Peoples”: The Role of the United Nations in the 21st Century at 50, UN Sales No. 00.1.16 (2000).

5 Nico, Schrijver, The Use of Economic Sanctions by the UN Security Council: An International Law Perspective, in International Economic Law and Armed Conflict 123, 156 (Harry, H. G. Posted., 1994)Google Scholar.

6 The so-called Interlaken Process, named after two seminars held in Interlaken, Switzerland, on March 17–19, 1998, and March 29–31, 1999, and various other seminars, conferences, and research projects have focused on targeted economic, in particular financial, sanctions. Use of smart sanctions was endorsed by the Secretary-General. Millennium Report of the Secretary-General of the United Nations, supra note 4, at 49; see George, A. Lopez & David, Cortright, Financial Sanctions: The Key to a ‘Smart’ Sanctions Strategy, 72 Die Friedens-Warte 327 (1997)Google Scholar.

7 See, e.g., Anthony, H. Cordesman, The Iraq Crisis: Background Data (1998)Google Scholar; David, Cortright & George, A. Lopez, Are Sanctions Just? The Problematic Case of Iraq, J. Int’l Aff., Spring 1999, at 735 Google Scholar; Alan, Dowty, Sanctioning Iraq: The Limits of the New World Order, Wash. Q., Summer 1994, at 179 Google Scholar; Eric, Hoskins, The Humanitarian Impacts of Economic Sanctions and War in Iraq, In Political Gain and Civilian Pain 91 (Thomas, G. Weiss et al. eds., 1997)Google Scholar.

8 Alberto, Ascherio, et al., Effect of the Gulf War on Infant and Child Mortality in Iraq, 327 New Eng. J. Med. 931 (1992)Google Scholar; Elias, Davidsson, The Economic Sanctions Against the People of Iraq: Consequences and Legal Findings Google Scholar, at <http://www.juscogens.org>, <http://www.lancs.ac.uk/ug/greenrd/project/elias.htm> (visited May 30, 2001).

9 Food and Agriculture Organization, Evaluation of Food and Nutrition Situation in Iraq (1995); Report to the Secretary-General on Humanitarian Needs in Kuwait and Iraq in the Immediate Post-Crisis Environment, UN Doc. S/2236 (1991); WHO/UNICEF Team Report: A Visit to Iraq (World Health Organization & United Nations Children’s Fund eds., 1991).

10 Sub-Commission on the Promotion and Protection of Human Rights, The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights, UN Doc. E/CN.4/Sub.2/2000/33, para. 6 [hereinafter Working Paper].

11 Committee on Economic, Social and Cultural Rights, General Comment 8: The Relationship Between Economic Sanctions and Respect for Economic, Social and Cultural Rights, UN Doc. E/C. 12/1997/8; UN Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4.

12 Supplement to an Agenda for Peace, supra note 1, para. 70.

13 Id., para. 75.

14 Hans, Kochler, Ethische Aspekte der Sanktionen im Völkerrecht: Die Praxis der Sanhtionspolitik und die Menschenrechte, in Neue Wege der Demokratie 109, 119 (Hans, Köchler ed., 1998)Google Scholar; Joy, K. Fausey, Comment, Does the United Nations’ Use of Collective Sanctions to Protect Human Rights Violate Its Own Human Rights Standards ? 10 Conn. J. Int’l L. 193 (1994)Google Scholar; see also 26th International Conference of the Red Cross & Red Crescent, The Humanitarian Consequences of Economic Sanctions (Sept. 15, 1995) (stating that the imposition of sanctions can result in a “contradiction” by causing threats to peace or violations of human rights while intending the opposite), at <http://www.icrc.org> [hereinafter Red Cross Statement].

15 Since 1989 the General Assembly has passed resolutions entitled “Unilateral Coercive Economic Measures.” GA Res. 44/215 (Dec. 22, 1989), 46/210 (Dec. 20, 1991), 48/168 (Dec. 21, 1993), 50/96 (Dec. 20, 1995), 52/181 (Dec. 18, 1997), 54/200 (Jan. 20, 2000).

Since 1996 the General Assembly has also passed resolutions entitled “Human Rights and Unilateral Coercive Measures, ” rejecting, inter alia, “unilateral coercive measures with all their extraterritorial effects as tools for political or economic pressure against any country, in particular against developing countries, because of their negative effects on the realization of all the human rights of vast sectors of their populations, in particular children, women and the elderly.” GA Res. 51/103 (Dec. 12, 1996), 52/120 (Dec. 12, 1997), 53/141 (Dec. 9, 1998), 54/172 (Dec. 17, 1999).

16 The General Assembly has passed resolutions entitled “Necessity of Ending the Economic, Commercial and Financial Embargo Imposed by the United States of America Against Cuba” since 1992. GA Res. 47/19 (Nov. 24, 1992), 48/16 (Nov. 3, 1993), 49/9 (Oct. 26, 1994), 50/10 (Nov. 2, 1995), 51/17 (Nov. 12, 1996), 52/10 (Nov. 5, 1997), 53/4 (Oct. 22, 1998), 54/21 (Nov. 18, 1999). These resolutions express concern, inter alia, “about the adverse effects of such measures on the Cuban people.”

17 In August 2000, the Sub-Commission on the Promotion and Protection of Human Rights appealed to the Human Rights Commission

to recommend... to the Security Council that, as a first step, it alleviate sanctions regimes so as to eliminate their impact on the civilian population by permitting the import of civilian goods, in particular to ensure access to food and medical and pharmaceutical supplies and other products vital to the health of the population in all cases.

Sub-Comm’n Res. 2000/1, Human Rights and Humanitarian Consequences of Sanctions, Including Embargoes, UN Doc. E/CN.4/Sub.2/RES/2000/l, op. para. 1.

18 Working Paper, supra note 10, para. 71.

19 Exploring the Evolution of Purposes, Methods and Legitimacy: Accountability of Intergovernmental Organizations, 94 ASIL Proc. 204 (2000); The Accountability of International Organizations to Non–State Actors, 92 ASIL Proc. 359 (1998). The International Law Association (ILA) recently established a Committee on Accountability of International Organisations, which was officially convened for the first time at the 68th ILA Conference in Taipei in 1998. 68 ILA, Conference Report 584 (1998); see also 69 ILA, Conference Report 875 (2000).

20 See Dorothee, Starck, Die Rechtmäßigkeit Von UNO-Wirtschaftssanktionen in Anbetracht ihrer Auswirkungen auf die Zivilbevölkerung (2000)Google Scholar, a recent German dissertation that appeared after this paper was written, and thus could scarcely be taken into account.

21 Hans-Peter, Gasser, Collective Economic Sanctions and International Humanitarian Law: An Enforcement Measure Under the United Nations Charter and the Right of Civilians to Immunity: An Unavoidable Clash of Policy Goals ? 56 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht [ZAÖRV] 871, 880 (1996)Google Scholar; Rene, Provost, Starvation as a Weapon: Legal Implications of the United Nations Food Blockade Against Iraq and Kuwait, 30 Colum. J. Transnat’l L. 577, 616 (1992)Google Scholar; Michael Reisman, W. & Douglas, L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 Eur. J. Int’l L.. 86, (1998)Google Scholar; Anna, Segall, Economic Sanctions: Legal and Policy Constraints, 81 Int’l Rev. Red Cross 763, 764 (1999)Google Scholar; Felicia, Swindells, Note, UN Sanctums in Haiti: A Contradiction Under Articles 41 and 55 of the UN Charter, 20 Fordham Int’l L. J. 1878, 1960 (1997)Google Scholar.

22 While the Red Cross institutions have repeatedly called for the formal adherence of the United Nations to the Geneva law, the official UN view has always been that

the United Nations is not substantively in a position to become a party to the 1949 Conventions, which contain many obligations that can only be discharged by the exercise of juridical and administrative powers which the Organization does not possess, such as the authority to exercise criminal jurisdiction over members of the Forces, or administrative competence relating to territorial sovereignly. Thus the United Nations is unable to fulfil obligations which for their execution require the exercise of powers not granted to the Organization, and therefore cannot accede to the Conventions.

Legal Opinion of the Secretariat of the United Nations, Question of the Possible Accession of Intergovernmental Organizations to the Geneva Conventions for the Protection of War Victims, 1972 UN Jurid. Y.B. 153, para. 3.

In 1999, however, the Secretary-General unilaterally promulgated “fundamental principles and rules of international humanitarian law applicable to United Nations forces conducting operations under United Nations command and control.” Bulletin on the Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13 (1999), reprinted in 81 Int’l Rev. Red Cross 812 (1999), 38 ILM 1656 (1999). See generally Daphna, Shraga, UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations–Related Damage, 94 AJIL 406 (2000)Google Scholar.

23 See Paul, Conlon, United Nations Sanctions Management: A Case Study of the Iraq Sanctions Committee, 1990–1994 (2000)Google Scholar; Paul, Conlon, Lessons from Iraq: The Functions of the Iraq Sanctions Committee as a Source of Sanctions Implementation Authority and Practice, 35 Va. J. Int’l L. 633 (1994/95)Google Scholar; Hans-Peter, Kaul, Die Sanktionsausschüsse des Sicherheitsrats, 44 Vereinte Nationen 96 (1996)Google Scholar; Martti, Koskenniemi, Le Comité des sanctions (créé par la résolution 661 (1990) du Conseil de sécurité), 1991 Annuaire Francais de Droit International 121 Google Scholar; Michael, P. Scharf & Joshua, L. Dorosin, Interpreting UN Sanctions: The Rulings and Role of the Yugoslavia Sanctions Committee, 19 Brooklyn J. Int’l L.. 771, (1993)Google Scholar.

24 See the literature cited infra in note 112.

25 See generally Bowett, D. W., United Nations Forces: A Legal Study of United Nations Practice (1964)Google Scholar; Moshe, Hirsch, The Responsibility of International Organizations Toward Third Parties 31–38 (1995)Google Scholar; Finn, Seyersted, United Nations Forces in the Law of Peace and War (1966)Google Scholar. See also the early discussion in Report of Committee on Study of Legal Problems of the United Nations, Should the Law of War Apply to United Nations Enforcement Action? 46 ASIL Proc 216 (1952); and the resolution, Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in Which United Nations Forces May Be Engaged, [1971 ] 2 Institut de Droit International, Annuaire 465.

26 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221 [hereinafter ECHR]. See generally Andrew, Clapham, Human Rights and the European Community: A Critical Overview (1991)Google Scholar; European Union: The Human Rights Challenge (Antonio, Cassese, Andrew, Clapham, & Joseph, Weilereds„ 1991)Google Scholar; The EU and Human Rights (Philip, Alston ed., 1999)Google Scholar; Alkema, E.A., The EC and the European Convention of Human Rights—Immunity and Impunity for the Community? 16 Common Mkt. L. Rev. 501 (1979)Google Scholar.

27 See, e.g., Walter, B. J. van Overbeek, The Right to Remain Silent in Competition Investigations: The Funcke Decision of the Court of Human Rights Makes Revision of the ECJ’s Case Law Necessary, 15 Eur. Competition L. Rev. 127 (1994)Google Scholar.

28 See, for example, the Community landmark cases of Nold v. Commission, Case 4/73, 1974 ECR 491, and Hauer v. Land Rheinland-Pfalz, Case 44/79, 1979 ECR 3727, where applicants claimed that their fundamental rights had been violated by Community legislation.

29 See also the “codification” of this judicial approach in Article 6(2) (ex–Art. F(2)) of the Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 224) 1, as amended by Treaty of Amsterdam, Oct. 2, 1997, 1997 O.J. (C 340) 1: “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”

30 C.f. Restatement (Third) of the Foreign Relations Law of the United States §223 (1987) (stating: “Subject to the international agreement creating it, an international organization has... (b) the rights and duties created by international law or agreement.”) [hereinafter Restatement]; see also Bowett, D. W., The Law of International Institutions 366 (4th ed. 1982)Google Scholar; Pierre-Marie, Dupuy, Droit International Public 143 (4th ed. 1998)Google Scholar; Henry, G. Schermers & Niels, M. Blokker, International Institutional Law 824 (3d rev. ed. 1995)Google Scholar. See, however, the more cautious approach of Albert, Bleckmann, Zur Verbindlichkeit des allgemeinen Völkerrechts für internationale Organisationen, 37 ZaöRV 107 (1977)Google Scholar.

31 See Gabriel, H. Oosthuizen, Playing the Devil’s Advocate: The United Nations Security Council Is Unbound by Law, 12 Leiden J. Int’l L.. 549, (1999)Google Scholar.

32 Hans, Kelsen, The Law of the United Nations 735 (1951)Google Scholar; see also Clyde, Eagleton, International Government 297 (3d ed. 1957)Google Scholar (stating that the “United Nations is not so much a legal order as a political system”).

33 Cf. 1 Österreichisches Handbuch des Völkerrechts 326 (Hanspeter, Neuhold, Waldemar, Hummer, & Christoph, Schreuer eds., 3d ed. 1997)Google Scholar (qualifying this discretion as a “blank cheque” to the Security Council).

34 Kelsen, supra note 32, at 294.

35 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, 1948 ICJ Rep. 57, 64 (May 28).

36 Prosecutor v. Tadić, Appeal on Jurisdiction, Case IT–94–1–AR72, para. 28 (Oct. 2, 1995), reprinted in 35 ILM 32, 42(1996).

37 Eagleton, supra note 32, at 525; see also Dapo, Akande, The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations’? 46 Int’L & Comp. L.Q. 309, 337 (1997)Google Scholar; Helmut, Freudenschuß, Article 39 of the UN Charter Revisited: Threats to the Peace and the Recent Practice of the UN Security Council, 46 Aus. J. Pub. Int’l L. 1 (1993)Google Scholar; Vera, Gowlland-Debbas, Security Council Enforcement Action and Issues of State Responsibility, 43 Int’l & Comp. L.Q. 55, 61 (1994)Google Scholar; Hanspeter, Neuhold, Peace, Threat to, in 3 Encyclopedia of Public International Law 935 (Rudolf, Bernhardt ed., 1997)Google Scholar [hereinafter Encyclopedia].

38 Oosthuizen, supra note 31; Anna, M. Vradenburgh, The Chapter VII Powers of the United Nations Charter: Do They “Trump” Human Rights Law? 14 Loy. L.A. Int’l & Comp. L. Rev. 175 (1991)Google Scholar.

39 An amendment proposed by the delegation of Ecuador at the San Francisco Conference stating that “[i]n the fulfilment of the duties inherent in its responsibility to maintain international peace and security, the Security Council shall. . . respect and enforce and apply the principles or rules of existing law” was not accepted. Doc. 2, G/7(p), 3 U.N.C.I.O. Docs. 393, 431 (1945); see also Kelsen, supra note 32, at 294–95.

40 Another proposal to amend Article 1 (1) so as to read “to maintain international peace and security in conformity with the principles of justice and international law” was not accepted at the San Francisco Conference. Rüdiger Wolfram, Article 1, in The Charter of the United Nations: A Commentary 52 (Bruno Simma ed., 1994).

41 Kelsen, supra note 32, at 294–95; Oosthuizen, supra note 31; see also Malcolm, N. Shaw, International Law 879 n.280 (4th ed. 1997)Google Scholar; Akande, supra note 37, at 318.

42 This view was largely endorsed by the ICJ in its 1971 advisory opinion on Namibia in approvingly citing the opinion of the UN Secretary-General that “Members of the United Nations have conferred upon the Security Council powers commensurate with its responsibility for the maintenance of peace and security. The only limitations are the fundamental principles and purposes found in Chapter I of the Charter.” Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) .Advisory Opinion, 1971 ICJ Rep. 16, 52 (June 21) [hereinafter Namibia Advisory Opinion].

43 Accordingly, Judge Weeramantry saw in Article 24(2) of the UN Charter a boundary circumscribing the Security Council’s authority to discharge its peace and security duties. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK; Libya v. U.S.) [hereinafter Lockerbie case], Provisional Measures, 1992 ICJ Rep. 3, 61, & 114, 171 (Apr. 14) (Weeramantry, J., dissenting). He further argued that “[t]he history of the United Nations Charter . . . corroborates the view that a clear limitation on the plenitude of the Security Council’s powers is that those powers must be exercised in accordance with the well-established principles of international law.” Id. at 65, 175.

44 Article 1 (3) of the Charter states the following purpose of the United Nations: “To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”

45 This view reflects common wisdom as far as the European Community, an organization with further–reaching operative powers since its inception, is concerned. See, e.g., Nanette, A. Neuwahl, The Treaty on European Union: A Step Forward in the Protection of Human Rights? in The European Union and Human Rights 1 (Nanette, A. Neuwahl & Allan, Rosas eds., 1995)Google Scholar. It would appear all the more true with regard to the United Nations.

46 Akande, supra note 37, at 323; Working Paper, supra note 10, para. 28.

47 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, 1954 ICJ Rep. 47 (July 13). There, the International Court of Justice not only affirmed the United Nations’ competence to establish an administrative tribunal for staff disputes, but also hinted at a duty to do so, stating that it would “hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals . . . that [the United Nations] should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.” Id. at 57.

48 Prosecutor v. Tadić, supra note 36, at 42.

49 See Rudolf, Bindschedler, International Organizations, General Aspects, 2 Encyclopedia, supra note 37, at 1289, 1299 (2d ed. 1995)Google Scholar; Manuel, Rama Montaldo, International Legal Personality and Implied Powers of International Organizations, 1970 Brit. Y.B. Int’l L. 111 Google Scholar; Manfred, Zuleeg, International Organizations, Implied Powers, Encyclopedia, supra, at 1312 Google Scholar. See, however, Seyersted’s objective legal personality theory, which finds a basis for the legal personality of international organizations not in the “subjective” will of the member states derived from treaties but, rather, in the “objective” circumstance of their existence or in custom. Finn, Seyersted, Objective International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend upon the Conventions Establishing Them ? 34 Nordisk Tidsskrift for International Ret 1 (1964)Google Scholar.

50 “No one can transfer more rights than one possesses.” Dig. 50.54 (Ulpian, Ad Edictum 46); see also Maarten, Bos, Amethodology of International Law 5 (1984)Google Scholar (regarding the principle Nemo plus potestatistransferre potest quam ipse habet as a general concept of law).

51 See Mohammed, Bedjaoui, The New World Order and the Security Council: Testing the Legality of Its Acts 7 (1994)Google Scholar (finding it “less acceptable than ever that sovereign States should have created an international organization equipped with broad powers of control and sanction vis–à–vis themselves but itself exempted from the duty to respect both the Charter which gave it birth and international law”).

52 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Rep. 174, 179 (Apr. 11).

53 See the dissenting opinion of Judge Fitzmaurice in the Namibia Advisory Opinion, 1971 ICJ Rep. 16, 294 (June 21), speaking of territorial sovereignty: “This is a principle of international law that is as well–established as any there can be,—and the Security Council is as much subject to it (for the United Nations is itself a subject of international law) as any of its individual member States are.” See also the broader statement of the Court in Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt, Advisory Opinion, 1980 ICJ Rep. 73, 89–90 (Dec. 20), that “international organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law.”

34 Exchange of Letters Constituting an Agreement Between the United Nations and Belgium Relating to the Settlement of Claims Filed Against the United Nations in the Congo by Belgian Nationals (Feb. 20, 1965), 1965 UN Jurid.Y.B. 39.

55 Jean, J. A. Salmon, De Quelques Problemes poses aux tribunaux beiges par les actions de citoyens beiges contre l’O.N.U. en raison defaits survenus sur le tetritoire de la République démocratique du Congo, 81 Journal des Tribunaux 713 (1966)Google Scholar; Paul De, Visscher, De l’Immunité de juridiction de l’Organisation des Nations Unies et du caractère discrétionnaire de la compétence de protection diplomatique, 25 Revue Critique de Jurisprudence Belge 449 (1971)Google Scholar (note on decision of September 15, 1969, by the Brussels Court of Appeals).

56 See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 53, 1155 UNTS 331:

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

57 See the discussion beginning in the text at note 22 supra.

58 Compare the view of the International Law Commission that

Peremptory norms of international law apply to international organizations as well as to States . . . . International organizations are created by treaties concluded between States . . . ; despite a personality which is in some respects different from that of States parties to such treaties, they are none the less the creation of those States. And it can hardly be maintained that States can avoid compliance with peremptory norms by creating an organization.

Commentary on the Draft Convention on the Law of Treaties Between States and International Organizations and Between International Organizations, [1982] 2 Y.B. Int’l L. Comm’n, pt. 2, at 56, UN Doc. A/CN.4/SER.A/ 1982/Add.1 (Part 2); see also Bedjaoui, supra note 51, at 35; Karl, Doehring, Unlawful Resolutions of the Security Council and Their Legal Consequences, 1997 Max Planck Y.B. UN L. 91 Google Scholar.

59 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.) [hereinafter Genocide case], Provisional Measures, 1993 ICJ Rep. 325 (Sept. 13).

60 Bosnia had challenged the legality of the arms embargo imposed by Security Council Resolution 713 (Sept. 25, 1991). It argued that the application to Bosnia of the embargo, which formally concerned the territory of the former Yugoslavia, would amount to assistance in the commission of genocide against the Bosnian people. With the exception of Judge ad hoc Eli Lauterpacht, the Court did not address this issue and it is now probably relieved from doing so as a result of the lifting of the arms embargo after the Dayton Peace Accords through Security Council Resolution 1021 (Nov. 22, 1995), which may have rendered the matter moot. In 1993, however, Lauterpacht considered that the arms embargo had become contrary to a norm of jus cogens insofar as it required support for a “genocidal activity” and that in this respect “it ceased to be valid and binding in its operation against Bosnia-Herzegovina; and that Members of the United Nations then became free to disregard it.” Genocide case, 1993 ICJ Rep. at 441, paras. 102, 103 (Lauterpacht, J. ad hoc, sep. op.).

61 See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 113, para. 218 (June 27) (stating that “the Geneva Conventions are in some respects a development, and in other respects no more than the expression, of [fundamental general principles of humanitarian law]”); see also Theodor, Meron, Human Rights and Humanitarian Law as Customary Law (1989)Google Scholar; Christopher, Greenwood, Customary Law Status of the 1977 Geneva Protocols, in Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven 93 (Astrid, J. M. Delissen & Gerard, J. Tanja eds., 1991)Google Scholar; Provost, supra note 21, at 616.

62 See Louis, Henkin, Human Rights, 2 Encyclopedia, supra note 37, at 886, 887 Google Scholar. But see Bruno, Simma & Philip, Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, 1988–89 Austl. Y.B. Int’l L. 82, 90 Google Scholar (suggesting general principles of law as a more adequate source of unwritten general international law binding on subjects of international law).

63 See Report of the International Law Commission on the Work of Its Thirty-second Session, [1980] 2 Y.B. Int’l L. Comrn’n, pt. 2, at 46, UN Doc. A/CN.4/SER.A/1980/Add.1 (Part 2) (stating that “some of these rules [of humanitarian law] are, in the opinion of the Commission, rules which impose obligations of jus cogens”); see also Theodor, Meron, On a Hierarchy of International Human Rights, 80 AJIL 1 (1986)Google Scholar.

64 Convention [I] for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31;Convention [II] for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention [III] Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Convention [IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287 [hereinafter the four Geneva Conventions].

65 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3 [hereinafter Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 UNTS 609 [hereinafter Protocol II].

66 Gasser, supra note 21, at 884.

67 See infra text at note 76.

68 See Red Cross Statement, supra note 14 (stating that” [a]ny sanction regime established in the context of armed conflict is governed by international humanitarian law”).

69 As for its content relevant to sanctions, see infra text at note 83.

70 The four Geneva Conventions, supra note 64, Art. 2, plus Protocol I, supra note 65.

71 The four Geneva Conventions, supra note 64, common Art. 3, plus Protocol II, supra note 65.

72 See Reisman & Stevick, supra note 21, at 95.

73 See Theodor, Meron, Human Rights in Internal Strife: Their International Protection 14 (1987)Google Scholar.

74 Declaration on Minimum Humanitarian Standards, Dec. 2, 1990, reprinted in 85 AJIL 377 (1991) [hereinafter Turku Declaration].

75 Although the Turku Declaration is mainly aimed at covering situations falling below the threshold of armed conflict, it is broadly phrased to affirm “minimum humanitarian standards which are applicable in all situations . . . and which cannot be derogated from under any circumstances.” Id., Art. 1 (emphasis added).

76 Protocol I, supra note 65, Art. 54 provides: “Starvation of civilians as a method of warfare is prohibited.” Protocol II, supra note 65, Art. 14 provides:

Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works.

See also Turku Declaration, supra note 74, Art. 3(2) (f) (prohibiting “deliberate deprivation of access to necessary food, drinking water and medicine”); Provost, supra note 21 (discussing the question in detail).

77 Geneva Convention IV, supra note 64, Art. 23(1) provides:

Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.

78 Id., Art. 55 (1) provides: “To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.”

79 Id., Art. 23; see supra note 77.

80 Geneva Convention IV, supra note 64, Art. 55; see supra note 78.

81 Protocol I, supra note 65, Art. 69 provides:

In addition to the duties specified in Article 55 of the Fourth Convention concerning food and medical supplies, the Occupying Power shall, to the fullest extent of the means available to it and without any adverse distinction, also ensure the provision of clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship.

82 Geneva Convention IV, supra note 64, Art. 33(1) provides: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” See also Hague Convention [IV] Respecting the Laws and Customs of War on Land with annex: Regulations Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631. Art. 50 of the Regulations provides: “No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”

83 On the right to life, see Universal Declaration of Human Rights, GA Res. 217, Dec. 10, 1948, Art. 3, UN Doc. A/810, at 71 (1948) [hereinafter UDHR]: “Everyone has the right to life, liberty and security of person”; International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 6 (1), 999 UNTS171 [hereinafter ICCPR]: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”; Convention on the Rights of the Child, Nov. 20, 1989, Art. 6(1), 1577 UNTS 3: “States Parties recognize that every child has the inherent right to life.”

On the right to an adequate standard of living, see UDHR, supra, Art. 25(1): “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, Art. 11(1), 993 UNTS 3 [hereinafter ICESCR]:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

Convention on the Rights of the Child, supra, Art. 27(1): “States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.”

On freedom from hunger, see ICESCR, supra, Art. 11(2):

The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co–operation, the measures, including specific programmes, which are needed:

  • (a)

    (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

  • (b)

    (b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution Of world food supplies in relation to need.

On the right to health, see id., Art. 12(1): “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

84 See supra note 83.

85 See Human Rights Committee, General Comment 6 (Art. 6), para. 5, UN GAOR, 37th Sess., Supp. No. 40, at 93, UN Doc. A/37/40 (1982) (specifically mentioning measures to reduce infant mortality and malnutrition).

86 Segall, supra note 21, at 768.

87 See supra note 83.

88 See Restatement, supra note 30, §702 cmt. a; see also Matthew C. R. Craven, The International Covenant on Economic, Social and Cultural Rights 22–29 (1995).

89 See supra text at note 46.

90 See Myres, S. Mcdougal, Harold, D. Lasswell, & Lung-Chu, Chen, Human Rights and World Public Order 325 (1980)Google Scholar; Louis, Henkin, Richard, C. Pugh, Oscar, Schachter, & Hans Smit, International Law 985, 987 (2d ed. 1987)Google Scholar.

91 Segall, supra note 21, at 768. See, on a more general level, A. Eide, Right to Adequate Food as a Human Right, para. 170 (1989), who considers a duty of noninterference to flow from the obligation to respect the right to food. See also UN Committee on Economic, Social and Cultural Rights, General Comment 12: The Right to Adequate Food, UN Doc. E/C.12/1999/5, para. 19 (qualifying “denial of access to food to particular individuals or groups” as a violation of the right to food).

92 UN Security Council resolutions regularly exclude from the sanctions regime “supplies intended strictly for medical purposes and, in humanitarian circumstances, foodstuffs.” See, e.g., SC Res. 661 (Aug. 6, 1990) (concerning Iraq); SC Res. 757 (May 30, 1992) (concerning the Federal Republic of Yugoslavia); see also Paul, Conlon, The Humanitarian Mitigation of UN Sanctions, 1996 Ger. Y.B. Int’l L. 249 Google Scholar.

93 SC Res. 986 (Apr. 14, 1995).

94 See supra notes 7, 8, 9. But see Conlon, supra note 92, at 251 (asserting that “UN sanctions regimes currently in force do indeed satisfy [the] requirements [of traditional humanitarian law]”).

95 See infra text at note 109.

96 For details, see Starck, supra note 20, at 121–25 .

97 Andrea, Bianchi, Immunity Versus Human Rights: The Pinochet Case , 10 Eur. J. Int’l L. 237 (1999)Google Scholar; Ruth, Wedgwood, International Criminal Law and Augusto Pinochet, 40 Va. J. Int’l L. 829 (2000)Google Scholar.

98 See Entschädigung für NS-Zwangsarbeit (Klaus, Barwig, Günther, Saathoff, & Nicole, Weyde eds., 1998)Google Scholar; Michael, J. Bazyler, Nuremberg in America: Litigating the Holocaust in United States Courts, 34 U. Richmond L. Rev.. 1, (2000)Google Scholar; Stephen, A. Denburg, Reclaiming Their Past: A Survey of Jewish Efforts to Restitute European Property, 18 B.C. Third World L.J.. 233, (1998)Google Scholar; Burkhard, Heß, Entschädigung fürNS-Zwangsarbeit vor US-amerikanischen und deutschen Zivilgerichten, 44 Die Aktiengesellschaft 145 (1999)Google Scholar; August, Reinisch, NS-Verbrechen und “political questions “: Können deutsche Unternehmen von ehemaligen Zwangsarbeitem vor US-Gerichten verklagt werden ? 20 IPRax 32 (2000)Google Scholar; Christian, Tomuschat, Rechtsansprüche ehemaliger Zwangsarbeiter gegen die Bundesrepublik Deutschland? 19 IPRax 237 (1999)Google Scholar.

99 The Alien Tort Claims Act provides for a civil action in U.S. courts by an alien “for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. §1350 (1994).

100 Doe v. Karadžić, Kadić v. Karadžić, 70 F.3d 232 (2d Cir. 1995). After a default order, compensatory and punitive damages were awarded in both cases in August and October 2000. See Award of Damages Against Bosnian Serb Leader Radovan Karadžić, Sean, D. Murphy, Contemporary Practice of the United States, 95 AJIL 143, 144 (2001)Google Scholar.

101 See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Forti v. Suarez-Mason, 672 F.Supp. 1531, modified, 694 F.Supp. 707 (N.D. Cal. 1987); Letelier v. Republic of Chile, 488 F.Supp. 665 (D.D.C. 1980).

102 Genocide case, Provisional Measures, 1993 ICJ Rep. 3 (Apr. 8); Provisional Measures, 1993 ICJ Rep. 325 (Sept. 13); Preliminary Objections, 1996 ICJ Rep. 595 (July 11); see Peter, H. F. Bekker, Case Report: Application of the Convention on the Prevention and Punishment of the Crime of Genocide, in 92 AJIL 508 (1998)Google Scholar; Matthew, C. R. Craven, The Genocide Case, the Law of Treaties and State Succession, 1997 Brit. Y.B.Int’l L. 127 Google Scholar; see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat, v. Yugo.), ICJ Press Communiqué 99/38 (July 2, 1999).

103 ICIY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (June 8, 2000), 39 ILM 1257 (2000).

104 See M. Cherif Bassiouni, The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, UN Doc. E/CN.4/2000/62; see also Theo van Boven, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, UN Doc. E/CN.4/Sub.2/1993/8.

105 See Antonio, Cassese, On the Current Trend Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law, 9 Eur. J. Int’l L. 2 (1998)Google Scholar; Theodor, Meron, Is International Law Moving Towards Criminalization? 9 Eur. J. Int’l L. 18 (1998)Google Scholar.

106 Working Paper, supra note 10, para. 106.

107 See the discussion on activation of Article 50 of the UN Charter, Brun-Otto Bryde & August Reinisch, Article 50, in The Charter of the United Nations: A Commentary, supra note 40 (2d ed. forthcoming); Jeremy, Carver & Jenine, Hulsmann, The Role of Article 50 of the UN Charter in the Search for International Peace and Security, 49 Int’l. & Comp. L.Q. 528 (2000)Google Scholar.

108 See in particular the German literature discussing at length a possible duty of either the German state or the European Community to compensate traders negatively affected by the Iraq embargo. See, e.g., Hans-Konrad Ress, Das Handelsembargo: Völker-,Europa–und Außenwirtschaftsrechtliche Rahmenbedincungen, Praxis und Entschädigung (2000) (with further references).

109 “The Court therefore considers that, in the circumstances of this case, the alleged damage can be attributed not to the adoption of Regulation No 2340/90 but only to United Nations Security Council Resolution No 661 (1990) which imposed the embargo on trade with Iraq.” Case T–184/95, Dorsch Consult Ingenieurgesellschaft mbH v. Council, 1998 ECR 11–776, para. 74 (CFI), reprinted in 117 ILR 363, aff’d, Case C–237/98 P (ECJ, June 15, 2000).

110 See infra notes 119, 149.

111 See under Recommendations to Non–Governmental Organizations and Victims of Sanctions: “Victims of sanctions having adverse consequences should bring their complaints to relevant national, international and regional bodies.” Working Paper, supra note 10, Recommendation B.2.

112 See, for example, from the vast literature, Bedjaoui, supra note 51; Akande, supra note 37; José E. Alvarez, Judging the Security Council, 90 AJIL 1 (1996); Doehring, supra note 58; Thomas, M. Franck, The “Powers of Appreciation”: Who Is the Ultimate Guardian of UN Legality? 86 AJIL 519 (1992)Google Scholar; Vera, Gowlland-Debbas, The Relationship Between the International Court of Justice and the Security Councilin the Light of the Lockerbie Case, 88 AJIL 643 (1994)Google Scholar; Alain, Pellet, Peut-on et doit-on controler les actions du Conseil de sécurité? in Le Chapitre VII de la Charte Des Nations Unies; Colloque De Rennes, 50e Anniversaire des Nations Unies 221 (Société Française pour le Droit International ed., 1995)Google Scholar; Michael Reisman, W., The Constitutional Crisis in the United Nations, 87 AJIL 83 (1993)Google Scholar; Bardo, Fassbender, Quisjudicabit? The Security Council, Its Powers and Its Legal Control, 11 Eur. J. Int’l L. 219 (2000)Google Scholar (review essay).

113 In the Namibia case, the ICJ noted that “[u]ndoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned.” Namibia Advisory Opinion, 1971 ICJ Rep. 16, 45 (June 21).

114 In Certain Expenses the ICJ stated that under the UN Charter no procedure existed for determining the validity of an organ’s act and indicated that “each organ must, in the first place at least, determine its own jurisdiction.” Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, 1962 ICJ Rep. 151, 168 (July 20).

115 For discussion of this subject, see supra text following note 22.

116 Lockerbie case, Provisional Measures, 1992 ICJ Rep. 3 (Apr. 14); Lockerbie case, Preliminary Objections, 1998 ICJ Rep. 9 (Feb. 27).

117 Genocide case, Provisional Measures, 1993 ICJ Rep. 325 (Sept. 13).

118 See Namibia Advisory Opinion, 1971 ICJ Rep. 16 (June 21); Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, 1954 ICJ Rep. 47 (July 13); Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, 1948 ICJ Rep. 57 (May 28).

119 Treaty Establishing the European Community, Nov. 10, 1997, 1997 O.J. (C340) 3, Art. 230 (ex-Art. 173) [hereinafter EC Treaty] provides: “The Court of Justice shall review the legality of acts adopted [by organs of the EC] intended to produce legal effects vis–à–vis third parties.”

120 ICJ Statute Art. 34.

121 The legal impossibility of suing an international organization before the ICJ also accounts for the fact that in its recent application directed against the NATO bombing campaign, the Federal Republic of Yugoslavia instituted proceedings against ten member states of NATO individually. Legality of Use of Force (Yugo. v. Belg.) (Yugo. v. Can.) (Yugo. v. Fr.) (Yugo. v. FRG) (Yugo. v. Italy) (Yugo. v. Neth.) (Yugo. v. Port.) (Yugo. v. Spain) (Yugo. v. UK) (Yugo. v. U.S.), Provisional Measures (ICJJune 2, 1999), at <http://www.icj–cij.org>.

122 GA Res. 49/75K (Dec. 15, 1994); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 (July 8).

123 UN Charter Art. 105.

124 The Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, Art. II, §2, 21 UST 1418, 1 UNTS 16 [hereinafter General Convention], states:

The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.

125 This could result from an attempt to construe the language of Article 105 of the UN Charter. See August Reinisch, International Organizations Before National Courts 205–14 (2000).

126 In the recent case Askir v. Boutros-Ghali, 933 F.Supp. 368 (S.D.N.Y. 1996), plaintiff tried to recover damages for unauthorized and unlawful possession of his property in Somalia and thereby implicitly challenged the legality of the United Nations peacekeeping activities. The court, however, dismissed the case for lack of jurisdiction because the defendant organization enjoyed immunity from suit.

127 See the U.S. litigation concerning the Rhodesia embargo in Diggs v. Shultz, 470 F.2d 461 (D.C Cir. 1972), cert, denied, 411 U.S. 931 (1973), finding the relevant Security Council resolutions, although binding on the United States under international law, unenforceable there as a result of a subsequent U.S. statute. See also Christoph, Schreuer, Decisions of International Institutions Before Domestic Courts 293 (1981)Google Scholar; Alvarez, supra note 112, at 12.

128 See, for example, the antitrust lawsuit instituted before American courts that was dismissed, inter alia, because OPEC’s alleged price–fixing activity was considered to constitute an act of state. Int’l Ass’n of Machinists v. OPEC, 477 F.Supp. 553 (CD. Cal. 1979), 649 F.2d 1354 (9th Cir. 1981).

129 See, for example, the refusal of the English High Court to make a winding-up order against the International Tin Council since it considered such questions “not justiciable by domestic courts. They must be solved by diplomacy, not domestic litigation.” Re Int’l Tin Council, 77 ILR 18, 31 (Ch. 1987).

130 For a broad overview of cases, see Reinisch, supra note 125, at 35–127.

131 See Panayotis, Glavinis, Les Litiges Relatifs Aux Contrats Passes Entre Organisations Internationales Et Personnes Privées (1990)Google Scholar.

132 The General Convention, supra note 124, as well as the Special Convention, Convention on the Privileges and Immunities of the Specialized Agencies, Nov. 21, 1947, 33 UNTS 261, leave it to the discretion of the organization concerned to choose the kind of alternative dispute settlement procedure to be used. Article VIII, section 29 of the General Convention provides that the organizations shall make provision for “appropriate modes of settlement of disputes” arising out of “contracts or other disputes of a private law character to which the United Nations is a party.” A corresponding provision can be found in section 31 (a) of the Special Convention. In practice, it is mainly arbitration that is chosen. See Reinisch, supra note 125, at 266.

133 ICCPR, supra note 83, Arts. 28–45.

134 The Committee on Economic, Social and Cultural Rights was not set up through the Covenant; rather, it was established by ECOSOC Res. 1985/17 (May 28, 1985).

135 ICCPR, supra note 83, Art. 41; Optional Protocol to the International Covenant on Civil and Political Rights, 999 UNTS 302; ECHR, supra note 26, Arts. 25, 46.

136 See supra text following note 49.

137 See H. v. d. P. v. Netherlands, UN Human Rights Committee, Communication 217/1986 (1987), 9 Hum. Rts. L.J. 254 (1988).

138 See Confédération française démocratique du Travail v. European Communities, Alternatively Their Member States (a) Jointly and (b) Severally, App. No. 8030/77, 13 Eur. Comm’n H.R. Dec. & Rep. 231 (1978).

139 On the European Communities, see M(elchers) &Co. v. Federal Republic of Germany, App. No. 13258/87, 64 Eur. Comm’n H.R. Dec. & Rep. 138 (1990); and on the European Patent Organization, see Heinz v. Contracting Parties Who Are also Parties to the European Patent Convention, App. No. 12090/92, 76–A Eur. Comm’n H.R. Dec. & Rep. 125 (1994).

140 See Matthews v. United Kingdom, App. No. 24833/94, 1999–I Eur. Ct. H.R. 251, where the European Court of Human Rights found a human rights violation on the part of the UK stemming from an EC act. See Henry, G. Schermers, Matthews v. United Kingdom, Judgment of 18February 1999, 36 Common Mkt. L. Rev. 673 (1999)Google Scholar.

141 UN Committee on Economic, Social and Cultural Rights, General Comment 8, supra note 11.

142 Id, para. 1. The Committee later added that “parties should refrain at all times from imposing embargoes or similar measures restricting the supply of another State with adequate medicines and medical equipment, ” and that

[w]hile only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society—individuals, including health professionals, families, local communities, intergovernmental and non–governmental organizations, civil society organizations, as well as the private business sector—have responsibilities regarding the realization of the right to health. State parties should therefore provide an environment which facilitates the discharge of these responsibilities.

UN Committee on Economic, Social and Cultural Rights, General Comment 14, supra note 11, paras. 41, 42.

143 See the preceding discussion beginning with the text at note 136.

144 Working Paper, supra note 10, para. 107.

145 See, e.g., Salas, M. & Jackson, J. H., Procedural Overview of the WTO EC-Banana Dilute, 3 J. Int’l Econ. L. 145 (2000)Google Scholar.

146 European Communities—Regime for the Importation, Sale and Distribution of Bananas—Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, WTO Doc. WT/DS27/ARB (Apr. 9, 1999). Since the United States did not act with full deference to the decisions by WTO organs, the Community successfully challenged the partly unilateral imposition of the retaliatory measures. See United States—Import Measures on Certain Products from the European Communities, WTO Doc. WT/DS165/R (July 17, 2000).

147 See Office of the United States Trade Representative, Press Release 99–35, USTR Announces Final Product List in Bananas Dispute (Apr. 9, 1999).

148 E C Treaty Art. 288(2) (ex–Art. 215(2)) provides: “In the case of non–contractual liability, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.”

149 It should be mentioned that some of the cases brought before the ECJ have already been dismissed on other grounds, while others are still pending. Geert, A. Zonnekeyn, EC Liability for Non-Implementation of Adopted WTO Panel and Appellate Body Reports: The Example of the ‘Innocent Exporters’ in the Banana Case, in The European Union and the International Legal Order: Discord or Harmony? 251 (Vincent, Kronenberger ed., 2001)Google Scholar.

150 EC Treaty Art. 230 (ex-Art. 173); see supra note 119.

151 See Trevor, C. Hartley, The Foundations of European Community Law (4th ed. 1998)Google Scholar; The Action for Damages in Community Law (Heukels, T. & McDonnell, A. eds., 1997)Google Scholar.

152 A related argument can be found in the debate on the direct applicability of GATT/WTO law within the EC legal order in which one of the major “policy” arguments against such applicability is that the political freedom of maneuver should not be restricted by individuals holding the EC accountable for WTO infringements. See Piet, Eeckhout, The Domestic Legal Status of the WTO Agreement: Interconnecting Legal Systems, 34 Common Mkt. L. Rev. 11 (1997)Google Scholar. Since the landmark decision in Joined Cases 21–24/72, Int’l Fruit Co. v. Produktschap voor Groenten en Fruit, 1972 ECR1219, the ECJ has remained faithful to its denial of direct applicability of GATT/WTO law. See most recently, Case C–149/96, Portugal v. Council (Nov. 23, 1999). See Patricia, Egli & Juliane, Kokott, Case Report: Portuguese Republic v. Council of the European Union (Judgment), in 94 AJIL 740 (2000)Google Scholar. Similar arguments can be made that militate against awarding compensation for WTO violations because the resulting financial disincentives would also effectively deprive the Community of its political option of acting freely within the WTO legal order, including having the option to derogate from such obligations.

153 See Bulletin Quotidien Europe, NO. 7458, May 4/5, 1999, at 10. The fact that apparently nothing resulted from this initiative has probably contributed to the willingness of some firms to pursue their cause before the ECJ.

154 See supra note 92.

155 See supra notes 7, 8, 9, and text at note 94.

156 See supra note 6.

157 See, e.g., SC Res. 1267 (Oct. 15, 1999) (Afghanistan).

158 See, e.g., SC Res. 1127 (Aug. 28, 1997) (Angola), 1132 (Oct. 8, 1997) (Sierra Leone).

159 See SC Res. 827 (May 25, 1993), 955 (Nov. 8, 1994) (establishing the Yugoslavia and Rwanda International Criminal Tribunals).

160 Working Paper, supra note 10, para. 48.

161 This parallel is also hinted at in Supplement to an Agenda for Peace, supra note 1, para. 75.

162 See Carver & Hulsmann, supra note 107.

163 In 1992 and 1995, the UN Secretary-General prominently raised the issue of the urgent need to respond to the expectations raised by Article 50 and suggested the establishment of a mechanism that, inter alia, would assess, at the request of the Security Council, and before sanctions are imposed, their potential impact on the target country and on third countries so as to measure their effects with a view to minimizing collateral damage, to explore ways of assisting member states that are suffering collateral damage, and to evaluate claims submitted by such states under Article 50. Supplement to an Agenda for Peace, supra note 1, para. 75.

164 Note by the President of the Security Council, UN Doc. S/2000/319.

165 Supplement to an Agenda for Peace, supra note 1, para. 73.