Allocation of Law Enforcement Authority in the International System Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel

Herausgegeben von

Jost Delbrück Institut für Internationales Recht an der Universität Kiel

117

Völkerrechtlicher Beirat des Instituts:

Daniel Bardonnet John Norton Moore l'Universite de Paris ll University of Virginia, Charlottesville Rodoll Bernhardt Max-Planck-Institut für Fred L. Morrison ausländisches öffentliches University of Minnesota, Recht und Völkerrecht, Minneapolis Heidelberg Albrecht Randelzhofer Lucius Caflisch Freie Universität Institut Universitaire de Hautes Krzysztof Skubiszewski Etudes Internationales, Geneve Polish Academy of Sciences, Warsaw and Poznan Antonius Eitel Bonn Christian Tomuschat Universität Bonn Luigi Ferrari Bravo Universita di Roma Rüdiger Wolfrum Max-Planck-Institut für Louis Benkin ausländisches öffentliches Columbia University, Recht und Völkerrecht, New York Heidelberg Tommy T. B. Koh Sir Artbur Watts Washington, D. C. London Allocation of Law Enforcement Authority in the International System

Proceedings of an International Symposium of the Kiel Institute of March 23 to 25, 1994

Edited by Jost Delbrück

Assistant Editor: Ursula E. Heinz

Duncker & Humblot · Berlin Die Deutsche Bibliothek - CIP-Einheitsaufnahme

Allocation of law enforcement authority in the international system : proceedings of an international symposium of the Kiel Institute of International Law, March 23 to 25, 1994 I ed. by Jost Delbrück. - Berlin : Duncker und Humblot, 1995 (Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel ; 117) ISBN 3-428-08335-0 NE: Delbrück, Jost [Hrsg.]; Institut für Internationales Recht (Kiel): Veröffentlichungen des Instituts ...

Alle Rechte, einschließlich das der Übersetzung, vorbehalten. Ohne ausdrückliche Genehmigung des Verlages ist es nicht gestattet, das Buch oder Teile daraus in irgendeiner Weise zu vervielfältigen. © 1995 Duncker & Humblot GmbH, Berlin Fremddatenübernahme und Druck: Berliner Buchdruckerei Union GmbH, Berlin Printed in ISSN 0720-7263 ISBN 3-428-08335-0

Gedruckt auf alterungsbeständigem (säurefreiem) Papier gemäß der ANSI-Norm für Bibliotheken Foreword

Since its inception by Eberhard Menzel, the series of international and often interdisciplinary symposia organized by the Institute of International Law at the Christian-Albrechts-University at Kiel numbers eighteen conferences including the 1994 Symposium on "The Allocation of Law Enforcement Authority in the Inter- national System," documented in the present volume. Five of these symposia were held on the occasion of important dates in the now eighty years of the Institute's existence: On the occasion of the Institute's 50th anniversary, the Institute wel- comed about thirty leading international and German scholars, including a good number of former members of the Institute, arnong them Paul Guggenheim, who received an honorary doctorate from the Faculty of Law of the Christian-Al- brechts-University together with Max Sörensen at this occasion. In 1974 and 1984, the Institute commemorated its 60th and 70th anniversaries, andin 1989, the Insti- tute bad the honor of hosting again a large nurober of eminent legal scholars on the occasion of its 75th anniversary. The subjects these symposia were devoted to are significant of the wide range of important international legal problems which the Institute has been and still is concerned with. In 1964, the 50th anniversary sympo- sium took stock of the fascinating development that international law bad under- gone in the preceding half century. Ulrich Scheuner gave a thought provoking overview of the developments of international law in bis paper "50 Jahre Völker- recht" (50 years of internationallaw), Max Sörensen spoke on "Völkerrechtlicher Schutz der Menschenrechte" (International Protection of Human Rights), Paul Guggenheim read a paper on "Die Problematik des europäischen Zusammen- schlusses" (The Problem of European Integration), and Konrad Zweigert con- cluded the symposium with a paper on "Internationales Privatrecht und Öffent- liches Recht" (Private International Law and Public Law). The 1974 symposium, convened by Wilhelm A. Kewenig, was devoted to the general subject of "Die Ver- einten Nationen im Wandel" (Changing United Nations), and the 1984 conference concerned itself under the title "Recht auf Information - Schutz vor Information" (Right to Information - Protection against Information) with the then current prob- lems of a New International Information Order. The 1989 symposium on the occa- sion of the 75th anniversary, again attended by a large number of international and German international legal scholars and international legal practitioners from the British and the German Foreign Offices, dwelt in depth with the thorny problern of "Strengthening the World Order: Universalism v. Regionalism. Risks and Opportu- nities of Regionalization," based on papers delivered by Otto Kimminich, Chris- toph Schreuer, Eibe Riede/, and Christian Tomuschat. 6 Foreword

The 1994 symposium, the papers and proceedings of which are hereby made avai1able to the public, under the title "The Allocation of Law Enforcement Authority in the International System" takes up not only the general theme of the 1989 conference but also continues the discussions pursued during the 1992 sym- posium entitled "The Future of International Law Enforcement. New Scenarios - New Law?" The 1994 symposium also continues the now established tradition of bringing together internationallegal scholars from the United States, on the one band, and Gennany and other European countries, on the other band. The Institute is strongly convinced that the transatlantic dialogue on the burning issue of strengthening the international legal order as part of an ernerging "New World Order" is essential. lt was all the more regrettable that for purely aceidentat rea- sons the participation, on the European side, by colleagues invited from and other Central and East European countfies could not materialize. The focal point of the 1994 symposium was the question as to whether and to what extent the United Nations as a law enforcement agency can be supplemented by regional arrangements/organizations and the state as a law enforcement agent in the inter- national public interest. The Institute is grateful that high-ranking representatives of the State of Schles- wig-Holstein over the years have taken the opportunity to express their great inter- est in the work of the Kiel Institute. Thus the Institute and the participants in the 1994 symposium were extremely pleased that the State Minister of Science, Re- search, and the Arts of the Land Schleswig-Holstein, Frau Marianne Ttdick, ad- dressed the participants and the members of the Institute during a festive dinner reception hosted by the Schleswig-Holsteinische Landesbank and the Sparkassen- and Giroverband Schleswig-Holstein. The Institute of International Law gratefully recognizes the generous financial support granted for the 1994 symposium by the Fritz-Thyssen-Stiftung, the Ger- man Marshall Fund, the Schleswig-Holsteinische Landesbank, the Sparkassen- and Giroverband Schleswig-Holstein, and last but not least the logistic support pro- vided by the local branches of Daimler-Benz and VW corporations. In times of heavy financial constraints, any undertaking like this symposium greatly depends on the willingness and ability of the modern Maecenases to extend their help to the organizers of such scholarly meetings. The lnstitute's sincere thanks also go to the Christian-Albrechts-University which provided for the conference room and other much needed support.

Kiel, July 1994 lost Delbrück Contents

Addresses by

Marianne Tulick o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o 11

lost Delbrück 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 00 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 13

Centralized and Decentralized Law Enforcement: The Security Council and the General Assembly Acting under Chapters VII and VII1

Paul C. Szasz 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 17

The RoJe of Regional Organizations in the Enforcement of International Law

Fred L Morrison o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o 39

Comment

Klaus Dicke 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 57

Discussion 0 0 0 o 0 0 0 0 o o 0 0 o 0 0 o 0 0 0 0 o o 0 0 0 0 0 0 0 0 0 0 o 0 0 0 0 0 0 0 o 0 0 0 0 0 0 0 0 0 o 0 o 0 0 o 0 o o 0 0 0 64

Decentralized International Law Enforcement: The Changing RoJe of the State as Law Enforcement Agent

Torsten Stein o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o 107

Comment

Mary Ellen O'Connell o o o o o o o o o o o o o o o o o 00 o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o 127

The Impact of the Allocation of International Law Enforcement Authority on the Inter- national Legal Order

lost Delbrück o o o o o o o o o o o o o o o o o o o o o O o 0 o 0 o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o o 135

Discussion 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 159

List of Participants 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 197 Abbreviations

ACABQ = Advisory Committee on Administrative and Budgetary Questions ACHR = American Convention on Human Rights AJIL = American Journal of International Law ANZUS = Australia, New Zealand, United States [Pact] APuZ = Aus Politik und Zeitgeschichte CENTO = Central Treaty Organization CIS = Commonwealth of Independent States CSCE = Conference on Security and Cooperation in Europe dec. = decision ECHR = European Convention on Human Rights ECOMOG = ECOWAS Cease-Fire Monitoring Group ECOWAS = Economic Community of West African States EU = European Union FRY = Federal Republic of Yugoslavia GYll.. = German Yearbook of International Law IAEA = International Atomic Energy Agency ICJ = International Court of Justice id. = ibidem IGO = Inter-govemmental Organization ILM = International Legal Materials NATO = North Atlantic Treaty Organization NPT = Treaty on the Non-Proliferation of Nuclear Weapons OAS = Organization of American States OAU = Organization of African Unity ONUSAL = United Nations Observer Mission in EI Salvador para(s). = paragraph(s) PCIJ = Permanent Court of International Justice res. = resolution SC = Security Council SEATO = South-East Asia Treaty Organization UNEF = United Nations Emergency Force UNIFIL = United Nations Interim Force in Lebanon Abbreviations 9

UNPROFOR = United Nations Proreetion Force in the fonner Yugoslavia UNTAC = United Nations Transitional Authority in Cambodia UNTS = United Nations Treaty Series UNOSOM = United Nations Operation in Somalia WEU = Western European Union

Opening Address

Marianne Tidick*

It is a pleasure for me to welcome you all on behalf of the Government of the Land Schleswig-Holstein. Particularly welcome are our guests from Italy, Great Britain, Aristria and the United States. We are proud that such distinguished ex- perts have accepted Professor Delbrück's invitation to discuss the "Allocation of Law Enforcement Authority in the International System" and to celebrate the 80th anniversary of the Institute of International Law in Kiel. Among you, I see a person who has particularly strong connections with the Institute: Professor Wolfrum was for 11 years a member of the Christian Albrechts University in Kiel and one of the Directors of the Institute. Last year, with much sadness we saw him move to the Heidelberg Max Planck Institute for Comparative Public Law and International Law. We are pleased, however, that you, Professor Wolfrum, still have ties with the Institute. You will become, for example, a member of the Institute's academic Advisory Board and remain co-author of the revised edition of Georg Dahm's treatise on internationallaw. I feel that this loyalty speaks for both yourself and for the Institute. The success of the Institute is based on a high Ievel of academic authority and an excellent national as weil as international reputation. I consider the distin- guished attendance at this symposium proof of this. There is a Iot of other proof. The Institute makes important and recognized contributions to the state and pro- gress of intemationallaw. I would, however, today like to draw your attention to the achievements of the members of the Institute outside their particular areas of expertise. This Institute has in fact produced: - four university rectors (including the founder, Professor Niemeyer and the present director, Professor Delbrück); - a vice-rector (Professor Wolfrum); - two members of constitution-making assernblies (Professor Schücking, Profes- sor von Mangoldt);

* Marianne 1idick, Minister of Science, Research and the Arts of the Land Schleswig- Holstein. 12 Marianne Tidick

- a member of the Reichstag (Professor Schücking); - a member ofthe Landtag (Professor von Mangoldt); - a minister of the interior (Professor von Mangoldt); - a senator of the interior and of sciences (Professor Kewenig); - a president of the Wissenschaftsrat (Professor Kewenig); - a judge at the International Court of Justice in The Hague (Professor Schück- ing); - a judge at the International Court of Arbitration in The Hague (Professor Del- brück); - various advisors for international organizations and at international confer- ences (Professor Schücking was one of five main German delegates at the peace negotiations in Versailles, Professor Woljrum was a member of the German delega- tion to the Third United Nations Conference on the Law ofthe Sea); - and last but not least, a founder of a philharmonic orchestra. The initiated amongst you know that the founder of the Institute of International Law, Professor Niemeyer, created an association here in Kiel. His frrst and most important aim was to found a philharmonic orchestra. I, as Minister for Science, Research and the Arts, am very pleased that Professor Niemeyer bad success with this project. Without him, we might still have no orchestra or concert hall. The association in fact still exists. lt is called "Verein der Musikfreunde in Kiel" (the Kiel Friends of Music) and plays a very active role in the musicallife of the town. The Institute of International Law then, I am sure you will agree, is a treasure of the University of Kiel, of which we can be very proud. I wish the Institute further success and hope that the symposium continues weil. Opening Address

Jost Delbrück*

Ladies and Gentlemen, dear Colleagues, Kiel holds the geographic center between Spitzbergen und Naples. As Kielo- nians we certainly appreciate this central location, we do recognize, however, that as far as traffic is concerned we are somewhat out fo the center: Thank you all the more that you have come to participate in our 1994 symposium on 'The Alloca- tion of Law Enforcement Authority in the International System" which we hold on the occasion of the 80th anniversary of the Kiel Institute! On behalf of the Institute, I have the honor to extend to you a very warm wel- come. I have also been asked by the Dean of the Faculty of Law of the Christian- Albrechts-University to welcome you on behalf of the Faculty of Law. The Dean very much regrets that he could not attend in person and meet you here. The one or the other of you may wonder why we are celebrating the 80th anniversary of the Institute with this symposium. It may be customary with most people to make the 80th birthday a major festive event. Institutions, however, tend to live considerably Ionger than humans. Cities incorporated tend to celebrate their corning of age but that usually means something like 600 or 750 years in this country. Thus, it may seem inappropriate to even make mention of the fact that the Kiel Institute has reached the age of eighty. The reason, however, is a very simple one. It has by no means been a matter of course that the Institute survived for so long. After its sec- ond director, Professor Walther Schücking, had been removed from hispost by the National-Socialist regime, the Institute came close to being moved to Berlin and receive a very "different mandate." Because of the out-break of the war plans of this kind ultimately did not materialize. Hermann von Mangoldt, who became di- rector of the Institute shortly before the end of the war, courageously saved the Institute from its new destiny and preserved the valuable library from being de- stroyed. The Institute's close escape from destruction has made it very special to the succeeding generations of scholars and students working here who feel very much obliged to the great scholarly contributions made by the Institute's former true directors, particularly Walther Schücking. Thus, it has become a tradition to

• Professor Dr. lost Delbrück, Director of the Institute of International Law at the University of Kiel; Visiting Professor at the Indiana University School of Law, Bloomington.