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Remnants of War as a Legal Problem in the Light of the Libyan Case

Published online by Cambridge University Press:  27 February 2017

Karl Josef Partsch
Karl Josef Partsch*
Affiliation:
Federal Republic of Germany at the Diplomatic Conference on Humanitarian Law, Geneva, 1974-1977
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Extract

More than 30 years after the end of hostilities in the Second World War, 13 governments have confirmed the presence on their territories of large amounts of the material remnants of war, mostly land mines. They can be found in all the countries affected by the North African campaign of the Axis powers in 1940-1943, namely, Egypt, Libya, and Tunisia, as well as in Malta, Norway, Poland and even Australia. Armed conflicts that have taken place at a later time, for example, those in Vietnam, the Suez Canal Zone, the Sinai and other regions in the Near East, have created similar dangers, and there is no reason to believe that present and future conflicts will be any different.

Type
Research Article
Information
American Journal of International Law , Volume 78 , Issue 2 , April 1984 , pp. 386 - 401
Copyright
Copyright © American Society of International Law 1984

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References

1 Report of the Executive Director of the United Nations Environmental Programme (UNEP), UN Doc. A/32/137, Annex, para. 10 (1977).

2 Remnants of War 10 and 82 (UNITAR and Libyan Institute for International Relations eds., UN Sales Pub. No. UNITAR/CR/26 (1983)) [hereinafter cited as UNITAR Study]; see also Bretton, Problèm.es juridiques posés par les restes matériels de la seconde guerre mondiale en Libye, 1982 Annuaire Français Droit Int’l (in preparation).

3 UNITAR Study, supra note 2, at 10.

4 24 UST 485, TIAS No. 7568, reprinted in 67 AJIL 389 (1973), Art. 2, para. 2: “The United States will remove, permanently deactivate or destroy all the mines in the territorial waters, ports, harbors and waterways of North Vietnam as soon as this Agreement goes into effect.”

5 Bretton, supra note 2, at note 23 (concerning Malta).

6 Statistics inevitably present uncertainties. The number indicated refers to antitank mines. If one counts all kinds of explosives, including hand grenades possibly used for the protection of mine fields, the numbers are higher. Official Libyan statistics indicate that between 1943 and 1977 about 14.5 million mines were cleared. UNITAR Study, supra note 2, at 28.

7 Id. at 32–37.

8 The report, supra note 2, published in English (124 pp.) and French (122 pp.), originally prepared by the journalist Ali Mostofi, “does not necessarily represent the opinions of the joint organizers of the Symposium” (preface at 11). It contains only “some reflections inspired by the International Symposium” (subtitle) without including the texts of the papers presented, which are available to researchers on request. On legal issues, see, inter alia: Blishchenko, UN Doc. UNITAR/EUR/81/WR/l; Miggiani, id., WR/5 and 9; Partsch, id., WR/6; Sandoz, id., WR/7; Tabibi, id., WR/8; Basso, id., WR/10; and Ganado, id., WR/11. No decisions or recommendations were taken. The Chairman, Dr. Victor H. Umbricht of Basel, delivered a “Summary of the discussions,” UNITAR Study, supra note 2, at 81–90, “greeted with applause by the participants” (id. at 81). It is preceded by the conclusions of the editors (id. at 77–81). Their opinions, as reflected in the report, are not as judicious and impartial as those of the Chairman.

9 UNITAR Study, supra note 2, at 82–84.

10 Cf. Recommendations 24, 36, 37, 74, 85 and 102 of the Action Plan, reprinted in 11 ILM 1421 (1972).

11 GA Res. 2995, 2996 and 2997 (XXVII) (1972).

12 UN Doc. A/10217 and Corr.1, Ann. I (1975).

13 GA Res. 3435 (XXX) (Dec. 9, 1975).

14 It was recognized that the development of certain developing countries had been impeded by the material remnants of wars (id., para. 1). The “colonialist powers which have neglected to remove” such remnants were not only condemned but also held “responsible for any material and moral damage” (para. 2). “States which took part in those wars” were called upon “to make available forthwith to the affected States all information on the area in which such mines were placed, including maps indicating the position of these areas and of the types of mines” (para. 3). Those states were also called upon “to compensate forthwith the countries in which such mines were placed for any material and moral damage suffered by them as a result thereof and to take speedy measures to provide technical assistance for the removal of such mines” (para. 4). Finally, UNEP should investigate the problem further (para. 5).

15 See supra note 1.

16 See references in notes 22–27 infra and accompanying text.

17 GA Res. A/37/215 (1982).

18 The great majority of mine fields and suspected mine fields are located in the regions of Tripolitania and Cyrenaica (until 1951 under British administration), and only very few in Fezzan (until 1951 under French administration).

19 Külür, UN Doc. UNITAR/EUR/81/WR/4, at 19.

20 Signed Oct. 18, 1907, 36 Stat. 2332, TS No. 541, reprinted in 2 AJIL Supp. 138 (1908).

21 UNITAR Study, supra note 2, at 62.

22 UN Doc. A/CONF.95/DC/CRP.2/Rev.1 (1980), reprinted in 21 Int’l Rev. Red Cross 41 (1981), 19 ILM 1529 (1980).

23 See Arts. 3–5.

24 Art. 8(l)(a)–(b).

25 Emphasis added.

26 UN Doc. A/CONF.95/CW/7, paras. 22 et seq. (1980), Amendment by the Libyan Arab Jamahiriya.

27 Cf. the technical Annex to the Protocol, supra note 22, at 53.

28 Seidl-Hohenveldern, , Reparations, in 4 Encyclopedia of Public International Law 178 (Bernhardt ed. 1982)Google Scholar.

29 The Juridical Clauses of the Peace Treaties, 73 Recueil Des Cours 259, 325–26 (1948 II).

30 For details, see Seidl-Hohenveldern, supra note 28, at 178–84.

31 Arts. 51, 52, 131 and 148, respectively, of the Four Conventions, 75 UNTS 31, 85, 135 and 287.

32 Baxter, Some Existing Problems of Humanitarian Law, in Proceedings of the International Symposium on Humanitarian Law (Brussels, 12–14 December 1974), Comm. IV, at 5.

33 Sandoz, supra note 8, at 22; M. Bothe, K. Partsch & W. Solf, New Rules for Victims of Armed Conflicts 547 (1982).

34 Miggiani, supra note 8, WR/5, at 8.

35 Id.

36 Formulation in 3 Acts and Documents of the Second Peace Conference, The Hague 145 (1907), quoted in Sandoz, supra note 8, at 8.

37 Miggiani, supra note 8, WR/9, at 7; UNITAR Study, supra note 2, at 63.

38 UN Doc. UNEP/GC.6/18, para. 6 (1978).

39 UNITAR Study, supra note 2, at 67.

40 The UNITAR Study, id. at 67, does not use this terminology but speaks of “objective responsibility.”

41 As does the UNITAR Study, id.

42 See Reports of the ILC to the General Assembly: [1980] 2 Y.B. Int’l L. Comm’n, pt. 2 at 158, UN Doc. A/CN.4/SER.A/1980/Add.1; [1981] 2 Y.B. Int’l L. Comm’n, pt. 2 at 217, UN Doc. A/CN.4/SER.A/1981/Add.1; [1982] 2 Y.B. Int’l L. Comm’n, pt. 2 at 146, UN Doc. A/CN.4/SER.A/1982/Add.1; Fourth Report of Robert Q. Quentin-Baxter, UN Doc. A/CN.4/ 373 (1983). It is generally acknowledged that the wording of the title is barbarous.

43 UN Doc. A/CN.4/373, supra note 42, para. 66.

44 Quoted in Report of the International Law Commission on the Work of its Thirty-second Session, 35 UN GAOR Supp. (No. 10) at 365, UN Doc. A/35/10 (1980). See McCaffrey, , Current Developments Note, 77 AJIL 323, 334 (1983)CrossRefGoogle Scholar; and id. at p. 478 infra.

45 P. Reuter as Chairman of the Sixth Committee, UN Doc. A/CN.4/373, supra note 42, para. 11.

46 Annex to the Fourth Report, supra note 42.

47 International Law in the Past Third of a Century, 159 Recueil Des Cours 1, 273 (1978 I).

48 Preface to the UNITAR Study, supra note 2, at 10–11.

49 GA Res. 3281 (XXIX) (1974).

50 See the summary of the obligations incumbent on the contracting states by Cassese, , The Self-Determination of Peoples, in The International Bill of Rights 92, 106–07 (Henkin, L. ed. 1981)Google Scholar.

51 Tomuschat, , The Charter of Economic Rights and Duties of States—A New Legal Order of World Economy, 36 Zeitschrift Für Ausländisches Öffentliches Recht und Völkerrecht 465 (1976)Google Scholar (the concept of “responsibility” in the Charter generally lacks a precise legal meaning).

52 Cassese, supra note 50, at 106.

53 Tomuschat, supra note 51, at 465–74, specifically with regard to this Charter.

54 Miggiani, supra note 8, WR/9, at nn.15–18, is aware of this legal situation.

55 Supra note 13.

56 Supra note 1.

57 See text at notes 14–15 supra.

58 Art. 1, Annex to GA Res. 31/72 (Dec. 22, 1976), reprinted in 16 ILM 88 (1977). See Blishchenko, supra note 8, at 13–17.

59 W. at 17.

60 Paragraph 1, a kind of preamble to paragraph 2, indicates the goals of the cooperation, and the fields “in the various spheres of international relations” are specified in paragraph 2.

61 Cf. the wording of paragraph 3 in comparison with that of paragraph 2.

62 G. Arangio-Ruiz, The Declaration on Friendly Relations and the System of the Sources of International Law 142–45 (1979); B. Graf zu Dohna, Die Grundprinzipien des Völkerrechts 178–92 (1973) (with detailed references to the drafting history); and Frowein, , Die UN-Resolution über Freundschaftliche Beziehungen, 1973 Europa-Archiv 70–76 Google Scholar.

63 In the drafts presented by Czechoslovakia, 21 UN GAOR Annex 2 (Agenda Item 87) at 85 (1966), and by nonaligned countries, UN Docs. A/AC.125/L.28 and 29 (1966). B. Babovic, Principles of International Law Concerning Friendly Relations and Cooperation 277–321 (1972), explains their intentions.

64 UN Doc. A/AC.125/SR.37, at 11 (1966). The legal basis of this concept was the consideration that international cooperation appears in Article 1(3) of the Charter, but not under the principles listed in Article 2; see remarks by the French delegate, UN Doc. A/AC.125/SR.35, at 4 (1966).

65 The modern trend toward establishing a right to solidarity as one of the third generation of human rights has not yet succeeded in creating a rule of law. It will take a long time to achieve this result (Eric Suy at the 1981 Symposium of the International Institute of Humanitarian Law at San Remo).

66 The plans and the final placement do not always coincide. During the operations, the parties frequently moved mines from the enemy’s mine fields to their own mine fields. Ceva, UN Doc. UNITAR/EUR/8 l/WR/2.

67 Owe E. Bring of Sweden in the concluding debate of the symposium on May 1, 1981 (according to his manuscript).