1, 2 (Nijhoff Law Specials) Roy S. K. Lee - Swords Into Plowshares - Building Peace Through The United Nations (2006, Martinus Nijhoff)

SWORDS INTO PLOWSHARES:
BUILDING PEACE THROUGH THE UNITED NATIONS

NIJHOFF LAW SPECIALS
VOLUME 65
The titles published in this series are listed at the end of this volume.
Swords Into Plowshares:
Building Peace Through the
United Nations
Edited by:
Roy S. Lee
MARTINUS NIJHOFF PUBLISHERS

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PREFACE
“[N]ations…shall beat their swords into plowshares, and

their spears into pruning hooks; nation shall not lift up sword
against nation, neither shall they learn war any more.”1
These words resonate with our aspirations for peace as clearly today
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our own means for achieving these ideals.
How can “[w]e the peoples of the United Nations”2 contribute
to the building of a world peace? A practical way is to examine the
LVVXHVFDXVLQJFRQÁLFWVDQGGLVRUGHULQVRFLHW\DQGDPRQJQDWLRQV
and to point out alternative methods for managing those problems. In
so doing, we may hope to raise the awareness of the general public
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the necessary action.
,Q3URIHVVRU3KLOLS&-HVVXSIRXQGHGWKHÀUVW&ROXPELD
University Seminar on “the Problem of Peace”, known as the Peace
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role of the United Nations. The late Professors Leland Goodrich and
Oscar Schachter continued with distinction for more than forty years.
Members of the Peace Seminar are very pleased to present this volume
to celebrate its 60th anniversary.
With the objective of combining practice and theory, the United
Nations Institute for training and Research and the Columbia Univer-
VLW\/DZ6FKRROMRLQWO\RUJDQL]HGLQWKHÀUVW6XPPHU,QVWLWXWH
1
Isaiah 2:4.
2
Charter of the United Nations, Preamble.
Lee, Swords Into Plowshares: Building Peace Through the United Nations, v–vi
©2006 Koninklijke Brill NV. Printed in the Netherlands.
vi Swords Into Plowshares: Building Peace Through the United Nations
to focus on current issues confronting the United Nations. A second

session was held in June 2005 to examine further international
terrorism, human rights, peace-building, UN decision-making and
standards setting. The program serves as a conference as well as a
course and draws some 120 participants from the UN community
GLSORPDWVRIÀFLDOVRIWKH6HFUHWDULDWDQGUHSUHVHQWDWLYHVRIRWKHU
inter-governmental organizations), academic institutions and civil
society.
I am pleased to have this opportunity to bring together for this
publication some of the recent papers delivered at the Peace Seminar
or at the UNITAR Summer Institute. Our distinguished authors have
analyzed for us some of the most pressing issues in the present world
and have also suggested ways for better management. In publishing
their contributions we hope to reach a wider audience and encourage
much needed action.
I am most grateful to the authors for permitting publication of
their papers in this collection and would also like to thank Mr. Robert
Belknap, Director of The Columbia University Seminars, and the
Schoff Committee for their support and assistance. Much appreciated
DVVLVWDQFHRI0V$OLVRQ:LQÀHOGDQG0U%UHQGDQ&URZHLVKHUHE\
acknowledged.
Roy S. Lee
CONTENTS
Preface v
Chapter 1 1
Improving Decision-making in the UN Security Council
Danilo Türk
Chapter 2 11
Bush’s War has Damaged the United Nations
Hans Corell
Chapter 3 17
Human Rights and Economic and Social Development
Bertrand G. Ramcharan
Chapter 4 33
The Mutual Feedback between Sustainable Development
and Human Rights: Adding Responsibility as a Catalyst
Jutta F. Bertram-Nothnagel
Chapter 5 73
The UN Security Council’s Counter-Terrorism Efforts
Eric Rosand
Chapter 6 85
5HÁHFWLRQVRQWKH6HFXULW\&RXQFLO·V&RXQWHU7HUURULVP
Resolutions
Giuseppe Nesi
viii Swords Into Plowshares: Building Peace Through the United Nations
Chapter 7 93
Assistance to States Challenged by Unconstitutional Means
Roy S. Lee
Chapter 8 123
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Berhanykun Andemicael
Chapter 9 139
United Nations Partnerships: Working Together for a
Better World
Amir A. Dossal
Chapter 10 159
Commitment to Multilateralism
A. Missouri Sherman-Peter
Chapter 11 167
Will the UN Hope Survive
Newton Bowles
Chapter 1
,03529,1*'(&,6,210$.,1*,17+(
UN SECURITY COUNCIL
Danilo Türk*
Introduction
The title suggested for this article implies a critical stance.
Decision-making of the Security Council needs to be improved. It
is too much an expression of real-politik and dominated by the Per-
manent Five: the United States, the United Kingdom, Russia, France,
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therefore, lacks legitimacy. Above all, it seldom meets expectations.
These are some of the most basic and most familiar criticisms.
For the critique to be meaningful, however, it must be put in
proper historical perspective. Consider this. The Security Council
was designed to be a powerful body; it has real-politik, particularly
Roosevelt’s concept of “four policemen,” built into its foundations.
Its design successfully resolved some of the fundamental problems
which had disabled its predecessor, the Council of the League of
Nations. It offered a political framework which contributed to a major
* Assistant Secretary-General, Department of Political Affairs, United Nations;

former permanent representative of Slovenia, his home country; also Professor
of International Law at the Law Faculty, University in Ljubljana. The views
expressed in this article are the author’s and do not necessarily represent the
position of the United Nations.
Lee, Swords Into Plowshares: Building Peace Through the United Nations, 1–9
2 Swords Into Plowshares: Building Peace Through the United Nations
achievement: it has presided over an unprecedented 60-year period of

peace among the world’s major powers. And, most importantly, the
UN Security Council has been devised as an enterprise of calculated
risk. It gives life to the idea of subjecting the use of force to the force
of norms. Realistically, this idea cannot succeed in each individual
case. It engenders a notion of utopia, an expectation that states serving
on the Security Council will forsake their immediate national interest
for enlightened self-interest or altruism. This is a tall order by any
historical standard. Here, the international situation enters into the
picture.
The Security Council and international law

The Security Council is a part of the United Nations and is based on a
treaty, the Charter of the United Nations. The Charter gave the Council
the “primary responsibility for the maintenance of international peace
and security,”1 the power to make binding decisions,2 and to carry out
enforcement actions in cases of threats to peace, breaches of peace
and acts of aggression.3 The Charter created an interesting dynamic
between the Council and the law. The Council interprets the Charter
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broad notions as “threats to the peace.” The Council also creates
new law through its binding decisions; and it can impose coercive
measures on states.
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beginning, but they were neither fully appreciated nor understood for
the larger part of its history because the Council had been paralyzed
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Council has become very active. In this time, the Council adopted
more than two-thirds of all of its resolutions and passed more than
90 per cent of all its resolutions pertaining to enforcement actions.
1
Article 24.
2
Article 25.
3
Article 39.
1. Improving Decision-Making in the Security Council 3
While this era of activism exposed the full range of issues charac-
terizing the Security Council today, the core issue has remained the
same since its earliest days: the need for the Council to interpret and
apply the Charter’s provisions in a meaningful way, with the aim of
devising real answers to the problems of maintaining international
peace and security. This fundamental need calls for an interpretation
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with a view to achieving the purposes of the United Nations. In
other words, the work of the Security Council requires a teleological
interpretation of the Charter. Let me offer a few examples.
The need for and the practice of teleological interpretation of the

UN Charter
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39 is the most far-reaching. That Article empowers the Security
Council to determine whether or not a threat to peace exists and,
then, to decide what to do about it: either to make recommendations
or decide on measures which involve enforcement. There are no
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the notion of “threat to peace.” The Council must ascertain the facts
as it sees them and interpret the Charter’s principles and norms in
accordance with its own understanding of the legal limitations.
In interpreting the notion of “threat to peace,” the Security Council
was bound to address not only those threats to peace caused by acts
of aggression and inter-state wars, which were clearly within its
mandate, but also those threats which originated, and were largely
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history, intervention in these predominantly intra-state problems
was rare. It occurred in the Congolese civil war in 1961, and, later,
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:DUWKH&RXQFLO·VLQWHUYHQWLRQLQLQWUDVWDWHFRQÁLFWDQGPDQPDGH
humanitarian disasters became commonplace in Central America,
Africa, the Balkans and Asia.
This line of teleological interpretation of the Charter had a
major impact on the scope of Security Council’s powers and on
the management of a variety of crises more generally. But this was
not the only example of teleological interpretation. Another, older
example was the Council’s practice of basing its decisions the broad
purposes of Chapters VI and VII of the Charter rather than on the
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early as 1948, in the Council’s decision to deploy, with the consent
of the parties, UN personnel to monitor a truce reached in the Middle
East. The establishment of the truce and supervision organization in
the Middle East (UNTSO) and military observer group in India and
Pakistan (UNMOGIP) in 1948 and 1949, respectively, marked the
beginning of UN peacekeeping operations. Over time, peacekeeping
operations became larger and much more complex and are now a
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This, obviously, is an important evolution. It had its basis in the
teleological interpretation of the Charter, i.e., a necessary approach
to enable the Security Council to develop a meaningful role in the
maintenance of international peace and security. “The Security
Council and its members did not succumb to paralytic textualism;”4
they were willing to make decisions without relying on the textual
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New horizons of teleology

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of the UN Charter had far-reaching consequences. The horizons
of teleology have moved and continue to move. The creation of
criminal tribunals by the Security Council, under Chapter VII of the
Charter, is among the most remarkable examples. The key to this
was precisely in the avoidance of a search for textual authority. A
restrictive interpretation of the Charter would most probably have
invoked the doctrine of ejusdem generis, according to which the
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concepts used in these articles. Therefore, the non-military sanctions
enumerated in Article 41 of the Charter would determine the limits
of measures that the Council can take by way of enforcement. Such
an interpretation would exclude creation of criminal tribunals, as
a means to give effect to Chapter VII of the Charter. However, the
4
Steven R. Ratner, 1HZ813HDFHNHHSLQJ%XLOGLQJ3HDFHLQ/DQGVRI&RQÁLFW
after the Cold War (1997) p. 23.
Council took a different approach. By establishing the international

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hybrid tribunals for Sierra Leone and East Timor, it launched a new
era of international criminal jurisdiction. Obviously, there are many
reasons for skepticism about the political motives. Nonetheless, the
legal effect is considerable and generally positive.
Another powerful example of moving horizons of teleological
interpretation of the UN Charter is provided by the Security Council’s
approach to the consequences of the 1988 bombing of Pan American
Flight 103, a passenger airliner, over Lockerbie, Scotland, and the
question of Libya’s responsibility for the incident.
In Resolutions 731 and 748 (1992), the Security Council demanded
that Libya comply with requests from the United States and United
Kingdom and extradite the Libyan citizens who were suspected of
involvement in the Lockerbie bombing for investigation and trial. To
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embargo on Libya. This was a far-reaching innovation. Not only
did the Council enter the sovereign realm of a state by demanding
extradition of a state’s own nationals, discarding the option of an
investigation and trial by the sovereign authority of the country of
citizenship, but it also imposed targeted sanctions to achieve that
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In this case, the Security Council imposed sanctions in a manner
which limited the choices otherwise available to Libya under the 1971
Montreal Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation. That Convention, like other comparable
conventions, is based upon the principle of aut dedere aut judicare,
according to which a state has a duty to prosecute or extradite. The
option of “judicare” by Libya was precluded by the decision of the
Security Council. Moreover, in April 1992, the International Court
of Justice rejected the Libyan request for provisional measures and
supported the approach taken by the Security Council: according to
the Court, the obligations contained in Security Council Resolution
748 “prevail over the obligations under any other agreement, includ-
ing the Montreal Convention.” This ruling was based on Article 25,
which relates to the obligatory nature of Security Council decisions,
and Article 103 of the Charter, which stipulates that in the event of
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the Charter-based obligations prevail.
Six years later, on February 27, 1998, the International Court of
Justice ruled on preliminary objections raised by the United States and
United Kingdom to the jurisdiction of the Court and the admissibility
of the Libyan applications. It held that it had jurisdiction and that the
applications were admissible. However, the subsequent procedure on
the merits was not completed. On August 15, 2003, Libya formally
acknowledged responsibility for the Lockerbie bombing, and the case
was removed from the docket of the Court three weeks later.
We shall never know how the International Court of Justice would
have decided the merits – that is, whether it would have upheld the
approach taken by the Security Council. Justice was done in the
Lockerbie case outside the immediate decision-making of the UN
bodies. However, without the Security Council’s decisions of 1992, its
persistence, and the imaginative diplomacy of the Secretary-General,
who fashioned a compromise in 1998 and 1999 which paved the way
to the trial of the Libyan suspects by a court sitting in the Netherlands
but consisting of Scottish judges applying Scottish law, justice would
most probably not have been done.
The case of Libya is important for another, no less important,
reason: it started the era of UN’s dealing with issues of international
terrorism as a matter of maintenance of international peace and
security. Before that, the UN had dealt with terrorism essentially
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types of terrorist acts and improved mechanisms for prosecution and
extradition. Adding a range of enforcement measures in the case of
Libya changed this approach.
In subsequent years, the Security Council imposed sanctions on
the Taliban Government in Afghanistan with the aim of prosecution
of Osama bin Laden. That effort did not succeed. After September
11, 2001, the Council created, in Resolution 1373, a far-reaching
counter-terrorism regime, requiring regular reporting and a range
of measures by all UN Member States. That regime was further
strengthened in 2004. With Resolution 1535, the Council created
a new unit in the Secretariat to ensure compliance and, above all,
provide technical assistance.
And on April 28, 2004, the Council mandated, in Resolution

1540, a detailed set of prescriptions intended to prevent any form of
state support to non-state actors in their attempt to develop or use
nuclear, chemical or biological weapons or their means of delivery.
This effort to address the “privatization of proliferation” of weapons
of mass destruction is not only the latest, but also politically the most
far-reaching, of the Security Council’s measures to address threats
to peace. It is aimed at a generic threat to peace, the exact scope of
which is not yet known. It does not involve sanctions but new ways
of inter-state cooperation. Its effect is not yet certain. Nevertheless,
it demonstrates the ability of the Council to agree on the existence of
long-term, generic threats to peace and on ways to deal with them.
The fact that this approach precludes resorting to unilateral action
already represents a degree of success.
And now, how to improve decision-making in the

Security Council?
The story of the evolution of the Security Council’s decision-making is
fascinating, as the preceding examples has shown. But one should not
forget that there have been mistakes and setbacks. There were some
major disasters along the way. Somalia, Bosnia and Herzegovina, and
Rwanda are the best known and most serious examples. Other issues,
such as Palestine, have proved intractable for the Council.
So, how should one approach the question of how to improve
decision-making on the Council? I suggest that one should start by
recognizing that the Council is a political body. It applies and creates
law, but its authority is essentially political, as are all the problems
and remedies toward which its decision-making is directed.
Some of these problems, such as how to improve peacekeep-
ing, have been thoroughly discussed and clear answers have been
offered, for example, in the report of Lakhdar Brahimi’s panel on
peace operations. That report and the subsequent discussions have
emphasized the need for peace operations to have clear mandates,
which reasonably anticipate the problems that will be confronted in
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mandates, i.e., “mission creep.”
Other recent discussions have yielded consensus to the effect that
the Security Council should use targeted sanctions and avoid general-
ized sanctions which create a huge amount of unnecessary pain for
the civilian populations of the affected countries, while doing little
to change the behaviour of the ruling elites.
These two examples belong to the category of tested policy require-
ments. They are achievable and should be achieved in the Council’s
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In addition to policy requirements such as these, there are meth-
odological requirements which must be met more effectively. The
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of the Secretariat for timely, impartial and up-to-date information.
This is necessary to improve the timeliness and effectiveness of
the Security Council’s own actions. It is important that the Council
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Council would be better able to live up to this commitment if the
Secretariat were better equipped to provide high-quality and timely
inputs.
An added advantage of Secretariat’s strengthened capacity would
be to diminish the Secretariat’s reliance on information and analysis
from other sources which often represent non-UN agendas. Last,
but not least, it would allow the Secretary-General to form a more
complete judgment and assist the Security Council more independ-
ently.
Finally, there are contemplated improvements which could be
called fundamental. Two of them clearly fall within this category.
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UN Charter. Over the years, the Council increased the frequency
of Chapter VII action, sometimes to authorize projects, such as
electoral assistance, which should clearly remain outside the scope of
enforcement. There is a clear risk that overuse of enforcement could
create an impression of undue imposition, something that is bound to
be resented by the affected populations and possibly lead to attacks
on UN personnel. For this and other reasons, the Council would be
well-advised to use its powers of enforcement more sparingly.
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Council’s actions to be credible, predictable and reliable. The Council
needs to act in a consistent manner and avoid the impression of
applying double standards. This may require the Security Council
itself to adopt general guidelines for future action, such as when to
intervene in man-made humanitarian disasters. The stature of the
Security Council will suffer if it acts in some cases and ignores others.
Such guidelines have been proposed by the Secretary-General and
others. The Council should take the proposals seriously and ensure
consistency in its actions.
Conclusion
This article has concentrated on the basic political and legal dynamics
of decision-making on the Security Council; they need to be under-
stood and addressed as a matter of priority. Other issues, such as the
Council’s methods of work and its procedures, are also important,
but not vital. Still others, such as the questions of representative
character and composition of the Security Council, the question of
new Permanent Members and of the future of the veto, will require
further political discussions and negotiations. In the meantime, the
Security Council will continue its work and will, it is hoped, improve
its decision-making in this context.
Chapter 2
BUSH’S WAR HAS DAMAGED

THE UNITED NATIONS
Hans Corell*
By attacking Iraq, the United States and United Kingdom have seri-
ously harmed the system of the UN Charter for collective security.
President Bush should learn from his predecessor President Eisen-
hower. The authority of the United Nations should be respected.
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Annan declared that the war waged on Iraq by a coalition consisting
of the United States, the United Kingdom, and Australia was “illegal.”
To those of us who served in the UN Secretariat during spring 2003,
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not come as a surprise: he had previously said that the attack was not
in conformity with the UN Charter, a characterization which was little
more than a euphemism for his belief in the illegality of the war.
The UN Charter established rules governing the use of force.
Under the Charter, it is illegal for states to use force except in two
limited circumstances. First, according to Article 51 of the Charter,
individual states may use force in self-defence only if they are
subject to an armed attack, and, once the Security Council becomes
* Senior Swedish diplomat; formerly, The Legal Counsel, United Nations, 1996-
2004. These are his personal views and do not necessarily represent those of
the UN.
apprised of the matter, the right to self-defence disappears, giving

way (theoretically) to collective action under the Security Council’s
lead. Secondly, according to Article 42, the Security Council may
authorize the use of force pursuant to Chapter VII of the Charter
only if it determines that there is a threat to, or an actual breach of,
international peace and security.
In the case of Iraq, the Security Council had adopted a great number
of resolutions applying Chapter VII, beginning in 1990. Two resolu-
tions are especially relevant: Resolution 678 (1990) and Resolution
687 (1991). In brief, the content of these Resolutions was that the
Member States were entitled to use “all necessary means” to ensure
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aspects of their programs to develop weapons of mass destruction
and ballistic missiles with a certain range.
By the end of 1998, Iraq suddenly refused to admit the inspectors of
the United Nations Special Commission (UNSCOM) into the country.
By Resolution 1284 of 17 December 1999, the Security Council
decided to replace UNSCOM with a new commission, United Nations
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which was headed by Hans Blix. It was not until November 27, 2002,
that Iraq permitted UNMOVIC’s inspectors to enter the country.
The reason that Iraq admitted the inspectors was Security Council
Resolution 1441, which was passed on November 8, 2002. In this
resolution, the Council determined that Iraq remained in material
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comply with its disarmament obligations. The Council also recalled
that it had warned Iraq time and again of serious consequences as a
result of its continued violations of its obligations.
On December 8, 2002, Iraq reported to the Security Council. The
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From December 2002, to March 2003, Hans Blix and Mohamed El
Baradei, the head of the International Atomic Energy Agency (IAEA),
reported to the Security Council. In February, Hans Blix advised that
Iraq had taken certain steps that could be the beginning of an active
cooperation to solve outstanding questions on disarmament, and no
weapons of mass destruction had been found.
2. Bush’s War Has Damaged the United Nations 13
Tension rose. In February 2003, the UK began investigating the

possibility of support for a Security Council resolution that sanctioned
an armed action against Iraq. These efforts failed. A majority of the
Council was not willing to go that far under the existing circum-
stances.
Although the US and UK lacked the support of the Council,
they attacked Iraq on March 20, 2003. In contending that the war
was legitimate, the US and UK relied on the “continuing authority”
of earlier Security Council resolutions. The US offered additional
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humanitarian intervention, democracy promotion, and the doctrine of
preventive self-defence, which was based on Iraq’s alleged alliance
with the al-Qaeda terrorist network. Then, on September 21, 2004,
President Bush gave a speech to the General Assembly, in which he
said,
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to fully comply with all Security Council resolutions – then
ignored more than a decade of those resolutions. Finally, the
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ance. And the commitments we make must have meaning.
When we say “serious consequences,” for the sake of peace,
there must be serious consequences. And so a coalition of
nations enforced the just demands of the world.
The proffering of so many rationales, sometimes together and some-

times in isolation, generated skepticism. In any event, the rationales
were not persuasive.
The “just demands of the world” could not be vindicated, as
President Bush claimed, by one nation or a coalition of nations without
the Security Council’s approval. One of the stronger rationales, that
of continuing legal authority derived from earlier resolutions, was
without merit because Iraq’s violation of the armistice would have
given the Council alone the right to resume the war, if it so decided;
and, here, it did not. Indeed, a majority of the Council opposed the
war. Furthermore, it seems highly inappropriate, if not illegal, to rely
on a twelve-year-old resolution when the factual circumstances on
the ground in Iraq and on the Council had changed: Saddam Hussein,
however reluctantly, had allowed inspections to proceed; and France

and Russia, both Permanent Members of the Council, had no desire
to support existing resolutions, let alone a new one authorizing a new
war. Finally, though hindsight is 20/20 and Iraq could have complied
with the resolutions and cooperated with the inspectors, inspections
conducted since the conclusion of the war have shown that Iraq did
not have the weapons of mass destruction, which were the basis of
sanctions.
Notwithstanding claims about the alleged illegality of the war
emanating from the Secretary-General and some Council members,
the Security Council on May 22, 2003 adopted a resolution recog-
nizing the Coalition’s Occupation of Iraq, granted the Coalition a
mandate that went far beyond what an occupying power is allowed
to do under the 1949 Geneva Conventions, and allowed it to continue
its activities in Iraq until the governing power was handed over to the
Interim Government, lead by Mr. Allawi, on June 28, 2004.
Now one might wonder: if, as some claimed, the attack on Iraq was
illegal, then how could the Security Council endorse the subsequent
Occupation? The explanation is simple. When, in March 2003, the
Security Council was faced with the fact that Iraq was occupied by
two of its own members, it had no choice. Ordering the occupying
powers to leave the country was not possible. Apart from the fact
that the United States and the United Kingdom would have used their
veto power against it, a withdrawal under the circumstances would
most likely have resulted in chaos and a bloody civil war.
It is outside the scope of this article to address the tragic fact that
the Coalition did not realize at an earlier stage that the power should
have been handed over to an Iraqi interim government as soon as
possible. Much time was lost here before the Secretary-General’s
message to that effect took hold.
There is a temptation to gloss over the illegality of the war by
pointing to some of its salutary effects. To be sure, a cruel dictator is
gone, the people have voted for a new government in an outstanding
display of courage, the government has now taken shape, and Iraq
may well be on the road to democracy. But this is not what it is all
about.
2. Bush’s War Has Damaged the United Nations 15
The system of collective security laid down in the UN Charter

has been seriously damaged by the attack on Iraq. When the Security
&RXQFLOGLGQRWJLYHSHUPLVVLRQWRWKHXVHRIIRUFHLQWKHÀUVWLQVWDQFH
it was functioning in the way it was originally intended.
One may like this point of view or not. But it was this system that
Presidents Roosevelt and Truman, the American engineers behind the
UN Charter, had in mind when the Organization was founded. And
they were not alone.
The words of the Republican President and former General Dwight
D. Eisenhower are as relevant today as they were in January 1957:
We recognize and accept our own deep involvement in the
destiny of men everywhere. We are accordingly pledged to
honor, and to strive to fortify, the authority of the United
Nations. For in that body rests the best hope of our age for
the assertion of that law by which all nations may live in
dignity.
President Bush, fortify this bulwark!

Chapter 3
HUMAN RIGHTS AND ECONOMIC AND

SOCIAL DEVELOPMENT
Bertrand G. Ramcharan*
Introduction
In his book The Rights of Man Today, Professor Louis Henkin dem-
onstrated that rights are politically recognized to respond to claims
and aspirations that are considered of great importance within a body
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through practice going back for some time, that economic, social
and cultural rights have entered into the body of international human
rights law alongside civil and political rights in an evolving synthesis
encapsulated in the Universal Declaration of Human Rights of 1948
whose provisions have been further developed and translated into
binding international obligations in International Covenant on Civil
and Political Rights and the International Covenant on Economic,
Social and Cultural Rights adopted by the United Nations in 1966.
Taken together, these documents form an International Bill of Hu-
man Rights, which is the very foundation of the international human
rights regime. Of particular importance for discussion here is the
International Covenant on Economic, Social and Cultural Rights and
* Acting United Nations High Commissioner for Human Rights. This paper was
based on his presentation at the Columbia University on 10 June 2004.
activities of the Committee on Economic, Social and Cultural Rights

set up by the Economic and Social Council to monitor implementation
of the Covenant. A total of 149 states are party to this treaty.
If we follow the journey of the Rights of Man, as presented by
Professor Henkin we can make the following assertions about the two
topics that are dealt with in this volume: human rights and economic
and social development.
First, economic and social development strives best in a climate of
freedom and respect for human rights. Where people are free they are
more motivated to produce. Secondly, economic and social develop-
ment has been considered so important by the international body
politic that it has been, in part, cloaked in the language of human rights
in documents such as the United Nations Declaration on the Rights
to Development (1986), whose legal status is differently assessed by
Member States of the United Nations. Thirdly, the Millennium Goals
set forward by the United Nations General Assembly highlight both
respect for human rights and economic and social development.
)RXUWKO\LQDJOREDOL]LQJZRUOGFULVHVRIJRYHUQDQFHFRQÁLFWV
and widespread violations of human rights have highlighted the
importance of putting into practice the professions of faith in democ-
racy, the rule of law and respect for human rights if economic and
social development can be achieved. This is particularly the case as
governments are increasingly competing with each other – but a race
to the bottom in human rights standards is not the answer.
In today’s globalizing world, where decisions taken in one state
increasingly affect people living in other states, it cannot be taken for
granted that governments are always in a position to live up to their
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cooperation and the recognition that the human rights responsibilities
of governments relate also to people living in other parts of the world.
A central pillar of international human rights law is thus called into
issue: insistence on the duty and ability of governments to discharge
their state responsibility in respect of their obligations or of their
conduct. We must nevertheless insist on this responsibility of each
JRYHUQPHQWRWKHUZLVHWKHZKROHHGLÀFHRILQWHUQDWLRQDOKXPDQULJKWV
law will be brought into issue.
3. Human Rights and Economic and Social Development 19
How, then, are we to approach our subject, human rights and

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call should be emerging thinking about human rights and poverty
reduction.
I. Human rights and poverty reduction

Thinking that human rights can help in poverty reduction
In work currently underway at the United Nations there is a strong
belief that human rights approaches can help bring about poverty
reduction. Allow me to outline this strand of thinking.
There is a widely accepted school of thought that considers that
human rights strengthen poverty reduction through the empowerment
of poor people, by expanding their freedom of choice and action to
structure their own lives. It sees the following added value of the
human rights framework to the poverty policy debate:
– that human rights compels us to look behind national averages in
order to identify the most destitute and vulnerable, particularly
if deprivation is caused by discrimination, and that human rights
strategies and projects are particularly suited to address their
VSHFLÀFVLWXDWLRQ
– that a human rights-based approach recognizes that all human
beings are entitled to at least a minimum set of capabilities,
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essential to a life of well-being and dignity;
– that the approach strengthens poverty reduction strategies by
enhancing the accountability of all stakeholders in the process
and giving particular pre-eminence to the establishment of
the rule of law and of adequate institutions that protect the
entitlements of poor people;
– that it further emphasizes the importance of participation,
recognizing access to information and a political voice for all
people as integral to development.
The instrumental value of the human rights framework for reducing

poverty is, thus, strongly argued.
This school of thought is accompanied by another strand that

considers that in the world of plenty the prevalence of extreme poverty
is morally and ethically unacceptable, that action to remedy this situ-
ation is possible but that no progress is made due to lack of political
will to address the national and international imbalances causing this
situation. In this view, certain forces controlling globalization impede
the realization of human rights for the nearly 1 billion destitute who
are born and die without enjoyment of even basic human rights. Thus,
it is claimed that extreme poverty is a violation of human rights and
WKDWWKHÀJKWDJDLQVWH[WUHPHSRYHUW\VKRXOGFRQFHUQWKHVWFHQWXU\
movement for human rights and freedoms in the same way as the
ÀJKWDJDLQVWVODYHU\GLGLQWKHWKFHQWXU\
II. The Millennium Development Goals

Why they deserve our attention
At the United Nations Millennium Summit in September 2000, world
leaders reached a consensus on priorities for the international agenda
LQWKHQHZFHQWXU\7KHÀJKWWRUHGXFHSRYHUW\DQGDFFHOHUDWHVRFLDO
and economic development feature centrally in the Millennium
Declaration adopted at the Summit. So too do human rights, with
states committing themselves to respecting the full range of civil,
political, economic, social and cultural rights.
More attention, however, has been devoted to the eight quantita-
tive and time-bound development goals – the so-called Millennium
Development Goals (MDGs) – which form part of the Declaration.
While the issues addressed in the MDGs are not new as such – they
derive from commitments made at previous World Conferences and
the like – their power comes from the framework they provide for
commitment to poverty reduction and a common basis for measur-
ing progress. They have since become a major feature of the global
development discourse and policy, occupying an increasingly central
place within national development plans and poverty reduction
strategies.
But human rights do not feature explicitly in the MDGs. Are we
returning to a concept of development which focuses on things like
reducing infant mortality and increasing access to clean drinking

water without addressing underlying causes linked to social and
power structures? Some would say yes, arguing that such results can
be achieved without addressing individuals’ rights. But as I have said
earlier, economic and social development thrives best in a climate of
freedom and respect for human rights. The MDGs were not intended
to displace or detract from the equally important human rights com-
PLWPHQWVUHÁHFWHGLQWKH0LOOHQQLXP'HFODUDWLRQRUIURP0HPEHU
6WDWHV·REOLJDWLRQVXQGHULQWHUQDWLRQDOKXPDQULJKWVODZ<HWTXHVWLRQV
have arisen at a conceptual level as to how the international consensus
on the MDGs might affect – and be affected by – international
consensus on human rights standards and principles, and what their
inter-relationships might be in a more practical sense in terms of their
respective implementation strategies and monitoring and reporting
SURFHVVHV7KLVLVDQLVVXHZKLFKQHHGVWREHDGGUHVVHG6XIÀFHLW
for me to say here that both the intrinsic value of human rights (that
is, that rights are ends in themselves) as well as their instrumental
value (that is, rights actually help in attaining the MDGs) need to be
recognized by all players.
Next to the belief that human rights can help in poverty reduction
is a deep belief that human rights should shape our globalizing world.
I therefore turn, next, to human rights and globalization.
III. Human rights and globalization

The nexus between human rights and globalization in human rights
bodies such as the Sub-Commission and the Commission has so far
led to the following principal insights:
– that human rights norms, standards and principles should, as
a matter of principle, inform the various processes that make
up global trade reform, macroeconomic policy-making, the
increasing reach of transnational corporations, the spread of
the information society, and increasing levels of crossborder
movement of people;
– that human rights norms, standards and principles could, if
respected, contribute positively to the more equitable enjoyment
of the fruits of globalization both within and between countries.
The World Bank, for example, has noted that equal societies
grow more equally;
– that there is a need for greater clarity in relation to the roles
of non-state players in relation to human rights. Indeed, the
question of holding corporations directly responsible for their
actions in relation to human rights has proved to be controver-
sial and the Sub-Commission and now the Commission are
discussing this issue at length;
– that the information society has great potential to promote the
enjoyment of human rights by bringing diverse people and
cultures together, but can also be a tool to promote violations
of human rights. For example, many people attribute the
successful conclusion to the Ottawa Convention prohibiting
anti-personnel landmines – at least in part – to the use by civil
society of the internet as a means of organization. However,
hate sites promoting racism and other crimes abound and the
inability for many poor people to access the internet risks
IXUWKHUPDUJLQDOL]LQJWKHSRRUIURPHQMR\LQJWKHEHQHÀWVRI
globalization;
– that the lowering of barriers to the trans-border movement of
goods, services and investment has not been matched by the
lowering of barriers to the trans-border movement of people
which risks skewing globalization towards the interests of the
holders of capital.
A central aspect of the nexus between human rights and globaliza-

tion is the importance of promoting and protecting the fundamental
principle of non-discrimination in the processes of globalization
– particularly in relation to trade and investment.
A third strand of reasoning in the human rights movement is that
there should be convergence in the impact of the principle of equality
in international human rights law and international trade law.
IV. The principles of equality in international human

rights law and international trade law
0\FROOHDJXHVLQWKH2IÀFHRIWKH+LJK&RPPLVVLRQHUIRU+XPDQ
Rights (OHCHR) have vigorously asserted that the principle of non-
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application of the principle of non-discrimination in trade law. While
noting that the trade principle of non-discrimination has much in com-
mon with the human rights principle, an OHCHR report emphasizes
that the two principles should not be confused. The human rights
principle is intrinsically linked with the principle of equality. As two
sides of the same coin, non-discrimination and equality provide the
foundations for the free and equal enjoyment of human rights. The
equality referred to is not restricted to formal equality but extends
to achieving substantive equality. This is illustrated by the fact that
states carry obligations under human rights treaties to take positive
measure to redress the structural biases that lead to discrimination
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On the other hand, the trade principle of non-discrimination is pri-
marily directed towards reducing trade protectionism and improving
international competitive conditions rather than achieving substantive
equality. For example, the trade principle of national treatment does
not prohibit discrimination against nationals even if the national
good, service or service provider might be in a comparatively weaker
position.
6HYHUDOSRWHQWLDOFRQÁLFWVFRXOGDULVHDQGZHQHHGWRFRQVLGHUKRZ
to avoid them. Take, for example, a government that uses govern-
ment purchasing to give preferential treatment to businesses run by
indigenous communities – as has been the case for Canada. The full
application of the trade principle of non-discrimination could support
a claim that a multinational service provider providing the same
services as the indigenous business is being discriminated against.
But what of the social policy aspects of the preferential treatment to
the indigenous communities? We in the human rights community have
a responsibility to raise these issues with other communities – trade
lawyers, economists, government policy-makers and so on – to ensure
that social policy is not forgotten in the process of maximizing the
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A fourth strand of reasoning in the human rights movement is that

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particularly with regard to issues such as intellectual property rights.
I turn to this now.
V. Human rights and international trade

In a series of reports that we have put before the United Nations
Sub-Commission on the Promotion and Protection of Human Rights,
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mental elements of a human rights approach to trade and investment
reform. The reports start from the premise that trade and investment
reform through WTO, regional and bilateral agreements can promote
economic growth and therefore provide a basis for improving the
enjoyment of human rights, but that respect for human rights should
be a basic element of the design of these reform programs if the poor,
PDUJLQDOL]HGDQGGLVDGYDQWDJHGDUHWRHQMR\WKHEHQHÀWV1RWRQO\
does this involve ensuring the protection of economic rights such as
the right to food, the right to health, the right to education and the
right to water as outcomes of trade and investment reform. It also
requires the protection of human rights – particularly participatory
rights – in the process of reform. By participatory rights, I am referring
to the right to take part in the conduct of public affairs, the freedom
to seek, receive and impart information, the freedom of association,
the freedom of movement and the right to a remedy. International
cooperation also provides an essential element of this approach.
This rights-based approach to trade and investment reform is
particularly relevant to intellectual property rules, to the liberaliza-
tion of trade in services, to agricultural trade liberalization and to
investment rules. To take an example, the promotion of intellectual
property rules through international bodies such as the WTO could
SURYLGHDPHDQVRISURPRWLQJWKHULJKWRIDXWKRUVWREHQHÀWIURP
the protection of the moral and material interest resulting from their
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should not come at any cost, and needs to be balanced against the
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RIVFLHQWLÀFSURJUHVVDQGLWVDSSOLFDWLRQV
Thus, the recent decision of the WTO allowing countries producing

generic copies of patented drugs under compulsory license to export
them to countries with no or little drug manufacturing capacity is,
I believe, a sign of progress. From a human rights perspective, this
can be seen as a positive move as it could allow for the production
and export of cheaper essential drugs (e.g. for HIV) to poor countries
desperately in need of such medicines. Thus intellectual property
rules could continue providing their economic incentive to undertake
UHVHDUFKZKLOHHQVXULQJVRPHÁH[LELOLW\WRHQVXUHWKHULJKWWRDFFHVVWR
essential medicines. The recent Canadian patent bill which effectively
implements the WTO decision provides a basis for improvement.
However, wealthy countries are still using bilateral pressure to raise
the level of intellectual property protection with scant regard to the
social consequences of this pressure – and even neglecting WTO
ÁH[LELOLWLHVWKDWDOUHDG\H[LVW*LYHQWKHVHULRXVJOREDOKHDOWKLVVXHV
such as HIV/AIDS, tuberculosis and malaria that are obstructing
improved enjoyment of the right to health, such pressure is simply
irresponsible and short-sighted.
The failure to protect the intellectual property of indigenous and
local communities with the same rigour as that devoted to the protec-
tion of the intellectual property of corporations is another example
of inequalities in globalization and trade that needs to be addressed
urgently.
The adoption of a rights-based approach to intellectual property
protection and indeed other areas of trade law is still a long way
off.
VI. The implementation of the right to development

The implementation of the right to development is an active part
of the human rights program. There is a growing recognition that
the right to development is a human right that makes the person the
central subject of development as well as its active participant and
EHQHÀFLDU\,WLVDOVRZLGHO\UHFRJQL]HGWKDWLWLVDVSHFLÀFULJKWDQG
is simultaneously a framework right for the achievement of all other
human rights, civil and political, and economic, social and cultural.
In the United Nations, academia and other fora, some believe that the
right to development is potentially a bridge between the normative

framework of human rights and the liberal framework of trade and
development. In this context, development is seen not just in terms
of material advancement but as a process that generates opportunities
to live a life of human dignity, equality and well-being.
The right to development, as it has evolved in the current debates
at the Commission on Human Rights and elsewhere, highlights how
the process of policy formulation and implementation of development
SURJUDPVFRXOGEHQHÀWIURPWKHKXPDQULJKWVSULQFLSOHV,WVHHNVWR
bring about greater coherence, coordination and cooperation in the
national and international environment for development and realiza-
tion of human rights. It captures the relevance of human rights to
sustainable development, underlying their mutual interdependence.
(The Millennium Declaration reiterates this linkage.) As a minimum
it means that development should not occur at the expense of human
rights.
This debate, both in terms of conceptual issues and the approach
to implementation of the right, has not been without controversy,
particularly regarding the nature of state obligations which the right to
development generates. In the discourse on the right to development,
a distinction has invariably been made in terms of actions required by
the states – individually as well as collectively – for the realization of
the right at the national and at the international level. This distinction,
though analytically convenient, has reinforced the view that the inter-
national and the national dimensions of the right to development could
perhaps be studied and analyzed separately. Moreover, it has drawn a
line between the obligations generated by the right to development,
both on developing countries and on Western countries. As a result,
the debate on the issue has seen a polarization of positions between
the ‘industrial’ North and the ‘developing’ South, each focusing more
on one aspect of the debate at the expense of the other. Some believe,
however, that in reality the national and the international dimension
of the right to development are closely entwined and more so in the
context of the present phase of globalization.
More recently, however, these views have been converging on the
LVVXHRILPSOHPHQWDWLRQRIWKHULJKWWRGHYHORSPHQW,QLWVÀIWKVHVVLRQ
(February 2004), the Working Group on the right to development
made progress in taking the debate forward by arriving at agreed

conclusions and recommendations. There has been a narrowing
down of the traditional differences between the two groups on the
respective perceptions of the role and responsibilities of the State
Parties in creating a conducive environment for development and
realization of all human rights. The Working Group has favoured
the idea of co-opting expertise, in the form of regional experts and
representatives of the international institutions and organizations
in a high-level Task Force of the Working Group. Potentially such
an approach provides the necessary technical inputs to the Working
Group to make interdisciplinary recommendations on concrete steps
for implementation of the right to development to the various players,
including the State Parties and those agencies that have a more direct
role in guiding development at the national and the international
level. The Task Force represents a collective approach to analyze
progress, disseminate best practices and consider possible solutions
for the implementation of the right to development.
But how does the right to development relate to the least developed
countries?
VII. The least developed countries

In a submission to the last major conference on least developed
countries (LDCs) (Third United Nations Conference on Least
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Commissioner for Human Rights underscored that an important shift
had taken place in the perception of the relevance of human rights in
development. It recognized that human rights were no longer seen as
DQDUURZ´ÀQJHUSRLQWLQJµDJHQGDDQGWKDWGHYHORSPHQWDJHQFLHVDUH
increasingly adopting rights-based approaches and the international
ÀQDQFLDOLQVWLWXWLRQVDUHGUDZLQJRQKXPDQULJKWVFRQFHSWVVXFKDV
empowerment and participation, although without explicitly using the
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WKHIDFWWKDWWKHUHKDVEHHQDPDUNHGLQFUHDVHLQWKHQXPEHURIUDWLÀFD-
tions of core human rights treaties by LDCs, but their implementation
remains a major challenge. To address the implementation challenge,
WKH2IÀFHRIWKH+LJK&RPPLVVLRQHUKLJKOLJKWHGWKHFHQWUDOLW\RI
two strategies for development in the LDCs. First, the importance

of governance for human rights, highlighting the role empower-
ment that rights play in feeding the engine of development. Thus, it
recommended that priority be given to the rule of law, administration
RIMXVWLFHSROLFHSULVRQRIÀFHUVDQGORFDOJRYHUQPHQWRIÀFLDOVQRW
as late minute “add-ons” but as central to the development process.
6HFRQGO\WKH2IÀFHRIWKH+LJK&RPPLVVLRQHUGUHZDWWHQWLRQWRWKH
key role of human rights education of people in LDCs, as key to their
empowerment and participation in decision-making and key to their
sense of co-ownership with government for their development.
7KH 2IÀFH DOVR VXEPLWWHG WR WKH &RQIHUHQFH WKH VWDWHPHQW RQ
poverty adopted by the Committee on Economic, Social and Cultural
Rights (E/C.12/2001/10), which encouraged the integration of human
rights into poverty eradication policies by outlining how human rights
generally, and the Covenant in particular, can empower the poor and
enhance anti-poverty strategies.
VIII. The United Nations Committee on Economic,

Social and Cultural Rights
The Committee on Economic, Social and Cultural Rights is the
principal body within the United Nations system dealing with labour,
social security, adequate standard of living, housing, food, health,
education, and intellectual property formulated as human rights. Since
LWVYHU\ÀUVWVHVVLRQLQWKH&RPPLWWHHKDVDGGUHVVHGWKHLVVXHVRI
economic and social development through the lens of economic, social
and cultural rights as set in the Covenant. It has done so by adopting
concluding observations, general comments and statements.
In its concluding observations addressed to the individual States
Parties to the Covenant, the Committee strives to identify factors and
GLIÀFXOWLHVLPSHGLQJWKHHIIHFWLYHUHDOL]DWLRQRIHFRQRPLFVRFLDODQG
cultural rights; to express its concerns whenever States Parties fail to
comply with their obligations under the Covenant; and to formulate
its recommendations with a view to helping States Parties achieve
the effective enjoyment of the rights sets for in the Covenant by their
population.
To date, the Committee has adopted 15 general comments, through

which it has endeavoured, inter alia, to stimulate the activities of
the States Parties, the international organizations and the specialized
agencies concerned in achieving progressively and effectively the
IXOOUHDOL]DWLRQRIWKHULJKWVUHFRJQL]HGLQWKH&RYHQDQW6XIÀFHLWWR
mention the most relevant in this context: General Comment No. 2
– International technical assistance measures (Art. 22 of the Covenant),
General Comment No. 4 – The right to adequate housing (Art. 11 (1)
of the Covenant), General Comment No. 6 – The economic, social
and cultural rights of older persons, General Comment No. 12 – The
right to adequate food (Art. 11), General Comment No. 13 – The right
to education (Art. 13), and General Comment No. 14 – The right to
the highest attainable standard of health (Art. 12).
With a view to assisting States Parties to the Covenant, the Commit-
WHHDGRSWVVWDWHPHQWVWRFODULI\DQGFRQÀUPLWVSRVLWLRQZLWKUHVSHFW
to major international developments and issues that bear upon the
implementation of the Covenant. As at 1 June 2004, the Committee has
adopted 15 statements, including “Globalization and its impact on the
enjoyment of economic, social and cultural rights (1998), “Statement
to the Third Ministerial Conference of the World Trade Organization”
(1999), “Poverty and the International Covenant on Economic, Social
and Cultural Rights” (2001) which has been referred to earlier.
IX. The Special Rapporteurs on Economic, Social and

Cultural Rights
7KHUHDUHQRZÀYHPDMRU6SHFLDO5DSSRUWHXUVRIWKH&RPPLVVLRQ
on Human Rights focusing on key areas of economic and social
rights: extreme poverty, food, health, education and housing. Stated
summarily, one can detect the following policy emphases on the part
of each of these Special Rapporteurs.
(a) Extreme poverty

The Special Rapporteur on human rights and extreme poverty has
sought to highlight three main issues:
a) Relevance of identity documents and keeping civil registration

ÀOHVFXUUHQWIRUSURJUHVVLQUHDOL]LQJWKHKXPDQULJKWVRIWKH
extreme poor. In many places of the world poor people are not
only facing a harsh life of deprivation and vulnerability but
they are also excluded from the political and social community
due to lack of identity documents. Identity documents are often
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IRUDGPLQLVWUDWLRQVWKDWGLVWULEXWHVRFLDOEHQHÀWVRUVLPSO\WR
register newborn children or pupils at schools.
b) Relevance of decentralized democratic governance as a mecha-
nism for ensuring participation of poor people in decisions that
affect their lives, as it fosters accountability at local level.
c) At the international level, the Special Rapporteur has repeat-
edly raised concerns about the need to listen and address the
challenges of extreme poverty with interlocutors at the World
Bank and at the IMF. The Special Rapporteur encouraged
explicit references to human rights in their policy documents
DQGRSHUDWLRQVDVZRXOGEHÀWDWUXHKXPDQULJKWVEDVHGDS-
proach to poverty reduction. A concrete proposal made by the
Special Rapporteur would consist of amending the Articles
of Agreement of both institutions linking their work with the
promotion and protection of human rights as stated in existing
instruments.
(b) Food
The Special Rapporteur on the right to food has sought to stress:
(a) the importance of access to safe and clean drinking water as a
component of the right to food;
(b) the justiciability of the right to food as a key for the implementa-
tion of the right;
FWKHSURWHFWLRQRIWKHULJKWWRIRRGGXULQJFRQÁLFWXQGHULQWHU-
national humanitarian law;
(d) the right to food and food sovereignty in the context of inter-
national trade;
(e) the accountability of the private sector for the realization of the
right to food; and
(f) the gender dimension of the right to food.
(c) Health
The Special Rapporteur on the “right of everyone to the highest attain-
able standard of physical and mental health” (as some governments
insist the “right to health” be referred to) has sought to highlight two
inter-related themes: poverty and the right to health, and stigma and
discrimination in relation to the right to health. These two themes
allow him to examine a range of important issues, including poverty
reduction strategies and the implementation of the Millennium De-
velopment Goals, as well as the matter of indicators, the impact of
international trade, and health areas that lend themselves in particular
to stigma and discrimination, including diseases of neglect, mental
health, and sexual and reproductive rights.
(d) Education
The Special Rapporteur on the right to education has sought to
highlight three aspects of particular importance to the elimination of
REVWDFOHVDQGGLIÀFXOWLHVLQWKHUHDOL]DWLRQRIWKLVULJKW
² WKDW RI ÀQDQFLDO REVWDFOHV WR WKH UHDOL]DWLRQ RI WKH ULJKW WR
education (given its dual legal status as an entitlement and as
a traded service);
– the elimination of gender discrimination both in and through
education; and
– the content of education, as the right to education is often
misconceptualized as being about getting children to school,
without considering that the right cannot be realized without
attention to what is learnt and to the way children are treated
by the education system.
(e) Housing
The Special Rapporteur on the “right to adequate housing as a
component of the right to an adequate standard of living” (more often
referred to as the “right to housing”) has sought to highlight several
emerging themes, including the right to water and sanitation, the need
to develop rights-sensitive indicators, and the impact of globalization.
The emphasis of his protection-related activities has clearly been on
WKH LQFLGHQFH RI ÍRUFHG HYLFWLRQVµ DV GHÀQHG E\ WKH &RPPLWWHH
on Economic, Social and Cultural Rights in its General Comment

number 7). In addition, the Special Rapporteur has emphasized the
need to pay greater attention to the rights of persons with disabilities
to adequate housing, and in particular to the equal right of women to
housing, as well as to land and property, and to its connection with
gender-based violence.
Concluding observation
After the preceding survey of developments in the area of human
rights and economic and social development, what general conclusion
might we draw? We would suggest the following: the human rights
movement is increasingly insisting that issues of economic and social
development be seen and tackled through the lens of human rights.
Chapter 4
7+(0878$/)(('%$&.%(7:((1
SUSTAINABLE DEVELOPMENT AND
HUMAN RIGHTS:
ADDING RESPONSIBILITY AS A CATALYST
Jutta F. Bertram-Nothnagel
I. The need for integrative approaches to sustainable

development and human rights
The additional value which human rights-based approaches and
sustainable development projects can bring to each other remains
largely unrealized. To mobilize the positive mutual feedback between
sustainable development1 and human rights more effectively, the
international community must “operationalize awareness”, as Adnan
7KHPRVWZHOONQRZQGHÀQLWLRQZDVSURYLGHGE\WKH:RUOG&RPPLVVLRQRQ
1
Environment and Development (Brundtland Commission) when it described

sustainable development as “development that meets the needs of the present
without compromising the ability of future generations to meet their own needs.”
World Commission on Environment and Development, Our Common Future
2[IRUG1HZ<RUN2[IRUG8QLYHUVLW\3UHVVDWVHHDOVR([SHUWV·
Group on Environmental Law of the World Commission on Environment
and Development, Environmental Protection And Sustainable Development:
Legal Principles and Recommendations (Report adopted June 1986), UN
Doc. WCED/8623/Add.1 (1986) (London/Dordrecht/Boston: Graham & Trot-
man/Martinus Nijhoff, 1987).
Amin has pointed out.2 While he was mainly referring to awareness

about the much acknowledged need to integrate the ‘three pillars’ of
sustainable development3 – economic development, social develop-
ment and environmental protection4 – his observation applies with just
2
$GQDQ$PLQ'LUHFWRURIWKH1HZ<RUN2IÀFHRIWKH8QLWHG1DWLRQV(QYLURQ-
PHQW3URJUDPDWD6LGH(YHQW´%ULHÀQJRQWKH(QYLURQPHQWDO9XOQHUDELOLW\
Index”, 16 April 2004, during the Preparations for the International Meeting
to Review the Implementation of the Program of Action for the Sustainable
Development of Small Island Development States (United Nations Economic
and Social Council, Commission on Sustainable Development, Twelfth Session,
14-30 April 2004).
3
For the political commitment of states to sustainable development see in
particular the following milestones: Report of the UN Conference on the Human
Environment, Stockholm, Sweden, 5-16 June 1972, UN Doc. A/CONF.48/14
and Corr.1, Stockholm Declaration of Principles for the Preservation and
Enhancement of the Human Environment, 16 June 1972, id. 3-5; World Charter
for Nature, 28 October 1982, G.A. Res 37/7 (Annex), UN GAOR, 37th Sess.,
Supp. No. 51 at 17, UN Doc. A/37/51, 22 ILM 455 (1983); Report of the UN
Conference on Environment and Development, Rio de Janeiro, Brazil, 3-14
June 1992, UN Doc. A/CONF.151/26/Rev.1, Rio Declaration on Environment
and Development, 14 June 1992, id. Vol. I Annex I; Agenda 21, id. Vol. I-III;
Report of the World Summit on Sustainable Development, Johannesburg, South
Africa, 26 August – 4 September 2002, UN Doc. A/CONF.199/20 and Corr.1,
Johannesburg Declaration on Sustainable Development, id. at 1, Johannesburg
Plan of Implementation, id. at 6.
4
The ideas for this paper were originally presented at a Panel on “Human Rights
and Economic and Social Development” of the 2004 Summer Institute of UN
Studies at Columbia Law School. In light of the well-recognized need for
integration, the topic was approached in an integrative fashion as well. Thus,
the observations in this paper extend to sustainable development and all its
pillars, including environmental protection. The drawback of disregarding
environmental protection was again quite vividly expressed by United Nations
6HFUHWDU\*HQHUDO.RÀ$QQDQLQDPHVVDJHRQWKHRFFDVLRQRIWKH,QWHUQDWLRQDO
Day for Biological Diversity: “Biological diversity … is now recognized as
crucial to sustainable development, the eradication of poverty and the achieve-
ment of the Millennium Development Goals … The consequences of failing to
stop the loss of biodiversity are too awful to contemplate.” UN Press Release,
SG/SM/9289, ENV/DEV/780, OBV/420, 3 May 2004. – At the same time, the
interaction between human rights and environmental protection is not explored
LQ WKLV DUWLFOH LQ DQ H[WHQVLYH IDVKLRQ VLQFH DQRWKHU SDQHO ZDV VSHFLÀFDOO\
dedicated to that subject. For the recognition of the concept of sustainable
4. Mutual Feedback Between Sustainable Development and Human Rights 35
as much urgency to international awareness about the interdepend-

ence both among all human rights5 and between human rights and
sustainable development.
<HWVRIDUWKHWUDQVODWLRQRIDZDUHQHVVLQWRSUDFWLFHLQWKHVHDUHDV
GRHVQRWÁRZDVQDWXUDOO\DVRQHPLJKWH[SHFW
It is no secret that the Millennium Development Goals6 will not be
reached if efforts continue at the current pace.7 Sustainable develop-
development by the International Court of Justice see *DEĀLNRYR1DJ\PDURV

Project (Hungary v. Slovakia) (Judgment), ICJ Reports (1997) 7, para. 140:
“This need to reconcile economic development with the protection of the
environment is aptly expressed in the concept of sustainable development.”
About this judgment see Rosalyn Higgins, “Natural Resources in the Case Law
of the International Court”, in International Law and Sustainable Development,
$ODQ%R\OHDQG'DYLG)UHHVWRQHHGV1HZ<RUN2[IRUG8QLYHUVLW\3UHVV
1999, republished 2001) 19-37
5
World Conference on Human Rights, Vienna, Austria, 14-25 June 1993, Vienna
Declaration and Program of Action, 25 June 1993, UN Doc. A/CONF.157/23
(12 July 1993), para. 5
6
All Member States of the United Nations have pledged to reach the Millennium
Development Goals by 2015. For information on the goals and the state of
implementation see <http://www.un.org/millenniumgoals/>. The commitment
is expressed in the United Nations Millennium Declaration of 18 September
2000, UN Doc. A/RES/55/2, available at <http://www.un.org/millennium/
declaration/ares552e.pdf>. Under the direction of Jeffrey Sachs, the efforts
required have recently been set out in “UN Millennium Project, Investing in
Development: A Practical Plan to Achieve the Millennium Development Goals”,
presented to the Secretary-General 17 January 2005, available at <http://www.
unmillenniumproject.org/reports>. For international efforts of implementation
see also especially Report of the International Conference on Financing for
Development, Monterrey, Mexico, 18-22 March 2002, Monterrey Consensus,
UN Doc. A/CONF.198/11, Monterrey Consensus, id. Chapter I Res.1 Annex,
available at <http://www.un.org/esa/ffd/>; Third United Nations Conference on
the Least Developed Countries, Brussels, Belgium, 14-20 May 2001, Program
of Action for the Least Developed Countries for the Decade 2001-2010, UN
Doc. A/CONF.191/11 of 8 June 2001, and Brussels Declaration, UN Doc.
A/CONF.191/12 of 2 July 2001.
7
UN General Assembly, 59th Session, Implementation of the United Nations
Millennium Declaration, Report of the Secretary-General, UN Doc. A/59/282, 27
August 2004, para. 77: “The Millennium Development Goals are still technically
feasible in even the poorest countries, but the window of opportunity is rapidly
narrowing and the political will remains largely absent.”
ment has neither been as developed nor as sustainable as it should

be. Whether one takes an economic, social or environmental angle
to examine progress, the picture remains disconcerting.8
Resistance continues to play a role. After all, the integrative tasks
to achieve sustainable development and to implement human rights
spell responsibilities. Thus, freedom appears to be at stake.
The less-than-stellar translation of awareness into action may also
be traced to the disassociation plaguing supposedly integrative ap-
proaches. Too often, ‘integration’ comes only as dutiful and uninspired
afterthought to the conception of a policy or project, as nothing but
a zero-sum game of ‘balancing’ environmental protection, economic
8
For the insufficient achievements and vast challenges see the following
reports: Human Development Report 2003 (Millennium Development Goals:
A Compact Among Nations to End Human Poverty), available at <http://hdr.
undp.org/reports/global/2003>; GEO Yearbook 2004/5, An Overview of Our
Changing Environment (UNEP: Earthprint, 2005), at <http://www.unep.org/
geo/yearbook>; World Bank/International Monetary Fund, Global Monitoring
Report 2005, Millennium Development Goals: From Consensus to Momentum
(World Bank 2005), at <http://www.worldbank.org>; World Economic and
Social Survey 2004 (United Nations, 2004) and World Economic Situations
and Prospects 2005 (United Nations, 2005), both available at <http://www.
un.org/esa/policy/wess>; Social Watch Report 2004: Fear and Want (Monte-
video: Instituto del Tercer Mundo, 2004); UN Economic and Social Council,
Commission on Sustainable Development, Twelfth Session, Overview of
Progress Towards Sustainable Development: A Review of the Implementation
of Agenda 21, the Program for the Further implementation of Agenda 21 and
the Johannesburg Plan of Implementation, Report of the Secretary-General,
UN Doc.E/CN.17/2004/2, 24 February 2004; see also UN Economic and Social
Council, Special High-Level Meeting with the Bretton Woods Institutions, the
World Trade Organization and the United Nations Conference on Trade and
Development, 18 April 2005, “Coherence, Coordination and Cooperation in
the Context of the Implementation of the Monterrey Consensus: Achieving the
Internationally Agreed Development Goals, Including Those of the Millennium
Declaration”, Note by the Secretary-General, UN Doc. E/2005/50, 6 April
2005; UN Millennium Ecosystem Assessment 2005, Ecosystems and Human
Well-being, Millennium Ecosystem Assessment (MA) Synthesis Report, released
0DUFKDYDLODEOHDWKWWSZZZPLOOHQQLXPDVVHVVPHQWRUJ!ÀUVWLQD
series of seven synthesis reports and four technical volumes. The Millennium
Ecosystem Assessment was launched by the UN Secretary General in 2001 and
completed in 2005. (To be published in print from Island Press in the course of
2005.)
development and social well-being, or civil, political, economic,

social and cultural human rights. The reference to awareness indi-
FDWHVWKDWLQWHJUDWLRQVKRXOGEHJLQLQWKHPLQG0RUHVSHFLÀFDOO\LI
awareness starts in the mind, ‘operationalization’ may have to start
there as well.
Could it be that awareness itself is still not sharp or comprehensive
enough? Has “the relevance of our shared humanity”9 highlighted
by Amartya Sen not yet fully sunk in? The lens might be too foggy
H[DFWO\EHFDXVHWKHIRFXVKDVQRWEHHQVXIÀFLHQWO\WUDLQHGRQWKH
closeness of the relationship between sustainable development and
human rights, including the closeness of the components within each
ÀHOG$VWKLVDUWLFOHWULHVWRVKRZIXUWKHUUHÁHFWLRQVDERXWWKHYDULRXV
interrelationships can help to highlight a fruitful linkage between right
and responsibility: responsibility may be re-visualized as right, and
right as responsibility. The energy and insight freed by the fusion of
right and responsibility can do much to propel sustainable develop-
ment and human rights forward.
II. Resistance against the linkage between sustainable

development and human rights
Discussions at the United Nations concerning the relationship be-
tween sustainable development and human rights still tend to raise the
temperature in the room, and not only when the right to development10
9
Amartya Sen, Development as Freedom1HZ<RUN$QFKRU%RRNV5DQGRP
House, 2000, orig. publ. Alfred A. Knopf/Random House, 1999), p. 283: “It
is not so much a matter of having exact rules about how precisely we ought to
behave, as of recognizing the relevance of our shared humanity in making the
choices we face.”
10
Declaration on the Right to Development (1986) adopted by General Assembly
Resolution 41/128 of December 1986, 41st Sess., UN Doc. A/RES/41/128
(Annex). See also UN Economic and Social Council, Commission on Human
Rights (hereinafter CHR), Report of the Working Group on the Right to Develop-
ment on its 6th Session, UN Doc. E/CN.4/2005/25; CHR, Consideration of the
Sixth Report of the Independent Expert on the Right to Development, UN Doc.
E/CN.4/2004/WG.18/2, and CHR, Report of the High Commissioner for Human
Rights, The Right to Development, UN Doc. E/CN.4/2005/24, all available at the
itself is at issue. Readers of the Johannesburg Plan of Implementa-

tion may be forgiven if they do not discern in it much about such a
relationship or about human rights-based approaches to sustainable
development.11 In the deliberations on an Optional Protocol for the
International Covenant on Economic, Social and Cultural Rights12
some states baulk at a more forceful institutionalization of economic,
social and cultural human rights.13 Even the character of economic,
social and cultural rights as human rights has again been questioned.14
The recurring debate whether a distinct human right to food (or water,
clothing or housing) exists or ‘only’ a human right to an adequate
standard of living15 is symptomatic for the resistance against the full
document site for the 6th Session of the Working Group (14-18 February 2005),
<http://www.ohchr.org/english/issues/development/groups/index.htm>.
11
For a rare reference to human rights see Johannesburg Plan of Implementation,
supra note 3, para. 138: “… Freedom, peace and security, domestic stability,
respect for human rights, including the right to development, and the rule of law,
gender equality, market-oriented policies, and an overall commitment to just
and democratic societies are also essential and mutually reinforcing.” But see
also more forcefully para. 54: “Strengthen the capacity of health-care systems
to deliver basic health services … and to reduce environmental health threats,
in conformity with human rights and fundamental freedoms …”.
12
International Covenant on Economic, Social and Cultural Rights, adopted by GA
Res. 2200A(XXI) of 16 December 1966, 999 UNTS 3 (hereinafter ICESCR).
13
CHR, Report of the Open-Ended Working Group to Consider Options Regard-
ing the Elaboration of an Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights, UN Doc. E/CN.4/2004/44
14
Michael J. Dennis, David P. Stewart, “Justiciability of Economic, Social and
Cultural Right: Should there be an International Complaints Mechanism to
Adjudicate the Rights to Food, Water, Housing, and Health?”, 98 AJIL 462
(2004).
15
Art. 11(1) ICESCR provides for “the right of everyone to an adequate standard of
living …, including adequate food, clothing and housing, and to the continuous
improvement of living conditions.” And see similarly: “Everyone has the right
to a standard of living adequate for the health and well-being of himself and his
family, including food, clothing, housing …”, Universal Declaration of Human
Rights, 10 December 1948, UN Doc. A/RES/217A(III), (hereinafter UDHR) Art.
25. – Interestingly, during the Istanbul Conference on Human Settlements, even
states not party to the ICESCR and originally opposed to a referral to the right
to housing, joined consensus on para. 8 of the Istanbul Declaration and para. 39
acknowledgement of the tie between sustainable development and

human rights.16
Such resistance is perhaps even more pronounced with respect
to the link between human rights and the sustainability pillar of
environmental protection. Even though one might assume quite
naturally that a conference called World Summit on Sustainable
Development would have as its overall goal nothing other than the
endeavour to combine poverty eradication – ultimately the provision
of ‘all human rights for all’ – with the protection of nature, a seemingly
innocuous draft paragraph talking of the relationship between human
rights and environmental protection turned out to be one of the most
controversial provisions, if not the most controversial one, in the
summit negotiation of the Johannesburg Plan of Implementation.17
,QWKHHQGWKHJUXGJLQJDQGFRQYROXWHGUHIRUPXODWLRQLQWKHÀQDO
version18 referring to “the possible relationship between environ-
RIWKH+DELWDW$JHQGD´:HDIÀUPRXUFRPPLWPHQWWRWKHIXOODQGSURJUHVVLYH
realization of the right to adequate housing, as provided for in international
instruments.” Recognition of the importance of civil and political rights for
the implementation of the right to housing was instrumental in overcoming the
LQLWLDOGLIÀFXOWLHV5HSRUWRIWKH6HFRQG8QLWHG1DWLRQV&RQIHUHQFHRQ+XPDQ
Settlements (Habitat II), Istanbul, 3-14 June 1996, UN Doc. A/CONF.165/14.
The Istanbul Declaration and Habitat Agenda are available at <http://www.
unhabitat.org/declarations/>.
16
And, one might add, as enlightening as a dispute if a human right against
interrogations assisted by electroshock (or thumbscrews or near-drowning…)
exists, or ‘only’ a human right not to be tortured!
17
The negotiations in this regard took place in the contact group on Chapter 11
(Institutional Framework for Sustainable Development) of the Johannesburg
Plan on Implementation. The draft paragraph (then numbered para. 32) was
proposed by the EU and opposed by the G-77 and the US: “32. [Acknowledge
the importance of the interrelationship between human rights promotion and
protection and environmental protection for sustainable development and invite
further consideration of these issues in the relevant fora, including by continued
cooperation between UNEP and UNHCHR. (EU)]Delete (G-77)” Compilation
Text of 15 May 2002, available at <http://www.johannesburgsummit/org/html/
documents/prepcom4docs/compilation_governance15may02.doc>.
18
Johannesburg Plan of Implementation, supra note 3, para. 169: “Acknowledge
the consideration being given to the possible relationship between environment
and human rights, including the right to development, with full and transparent
ment and human rights” had to be considered a success as much as

an embarrassment. If not for the rescue efforts of the former High
Commissioner on Human Rights, Mary Robinson,19 the provision
may well have not survived at all.20
participation of Member States of the United Nations and observer States.”

But see also para. 54 as cited already supra note 11, and para. 53: “The Rio
Declaration on Environment and Development states that human beings are at
the centre of concerns for sustainable development, and that they are entitled
to a healthy and productive life, in harmony with nature.” (The paragraph is
referring to Principle 1 of the Rio Declaration, supra note 3.)
19
Statement by Mary Robinson, United Nations High Commissioner for Human
Rights, World Summit on Sustainable Development, Johannesburg, South
Africa, Plenary Session, 29 August 2002, available at <http://www.un.org/
events/wssd/statements/unhchrE.htm>: “I would identify the prime goal for
the immediate future as to achieve a deeper understanding of the links between
human rights and environmental protection. … The draft Plan of Action has
paragraphs that seek further cooperation between UNEP and OHCHR. I call
IRUWKHÀQDODGRSWLRQRIWKRVHSDUDJUDSKVµ:LWKUHJDUGWRSDVWFRRSHUDWLRQ
between UNEP and OHCHR, see e.g. OHCHR and UNEP, Human Rights
and the Environment, Conclusions of a Meeting of Experts in January 2002,
HR//PUB/02/2.
20
See in contrast Decision Regarding Communication 155/96 (Social and Eco-
nomic Rights Action Center/Center for Economic and Social Rights v. Nigeria),
Case No. ACHPR/COMM/A044/1 (Afr. Comm’n Hum. & Peoples Rts. 27 May
2002); Dinah Shelton, “Decision Regarding Communication 155/96 (Social
and Economic Rights Action Center/Center for Economic and Social Rights v.
Nigeria)”, 96 ASIL 937, 942 (2002): “The Commission gives the right to envi-
ronment meaningful content by requiring the state to adopt various techniques
of environmental protection, such as environmental impact assessment, public
information and participation, access to justice for environmental harm, and
monitoring of potentially harmful activities. The result offers a blueprint for
merging environmental protection, economic development, and guarantees of
human rights.” – See importantly also CHR, Sub-Commission on Prevention
of Discrimination and Protection of Minorities, 46th Session, Human Rights
and the Environment, Final Report by the Special Rapporteur (Fatma Zohra
Ksentini), UN Doc. E/CN.4/Sub.2/1994//9, 6 July 1994, and especially id.,
Annex I: Draft Principles on Human Rights and the Environment.
III. Conceptual and political concerns behind the

reluctance to link sustainable development and
human rights
Part of the reluctance to look at the linkage between sustainable
development and human rights is traceable to conceptual concerns.
The right to development may be mistrusted due to the frequent
metamorphosis from the individual’s or people’s right21 to the state
ULJKWDQGLWVFRQVHTXHQWMXVWLÀFDWLRQIRUGLFWDWRULDOVXSSUHVVLRQRU
smoke screen for unconscionable policies. Economic, social and
cultural human rights continue to be seen by some as distractions from
FLYLODQGSROLWLFDOKXPDQULJKWVDQGYLFHYHUVD'HVSLWHWKHRIÀFLDO
pronouncements on interdependence and even mutual enhancement22
of economic development, social development and environmental
protection, care for human beings and care for nature still happen
to be judged all too frequently as mutually exclusive, partly due to
impact assessments whose frames of reference for time and space
are too narrow. From an environmental perspective, the apparent
anthropocentricity of environmental human rights is feared as cause
for distortions and failures in the protection of nature.23 And from still
another angle, the notion of responsibility associated with sustainable
development – i.e. with the protection of nature and the quest for the
well-being of all – is regarded with suspicion as nothing other than an
encroachment on liberty. Altogether, with an outdated overemphasis
on tension between the three pillars of sustainable development and
between categories of human rights, the idea of linkage between
21
Roland Rich, “The Right to Development: A Right of Peoples?”, in James
Crawford ed., The Right of Peoples (Oxford: Clarendon Press, 1988), 39.
22
For example, para. 3 of the Istanbul Declaration on Human Settlements, supra
note 15, describes the three pillars of sustainable development as “interdependent
and mutually reinforcing components.”
23
Patricia Birnie and Alan Boyle, International Law and the Environment (Oxford
DQG1HZ<RUN2[IRUG8QLYHUVLW\3UHVVRQDQWKURSRFHQWULFLW\
257-258; Dinah Shelton, “Human Right, Environmental Rights, and the Right
to Environment”, 28 Stanford Journal of International Law 103, 137 (1991)
See also below.
the two concepts becomes one of entanglement in multiplied and

SDUDO\]LQJFRQÁLFW
The disregard of the relationship between sustainable development
DQGKXPDQULJKWVVWHPVDOVRIURPDQ[LHWLHVDERXWWKHÀQDQFLDOSROLWL-
cal effect of the tie-in. Industrialized states are wary of stronger claims
for change in the international order in line with Art. 28 UDHR24
DQGIRULQWHUQDWLRQDOÀQDQFLDODQGWHFKQLFDODVVLVWDQFH25 under such
provisions as Art. 2(1) ICESCR.26 Developing states fear to be
reigned in by additional aid conditionalities and foreign interference
in internal affairs.27
IV. Towards the fuller acceptance of the linkage

between sustainable development and human rights
<HW GHVSLWH WKH FRQFHUQV MXVW RXWOLQHG WKH UHODWLRQVKLS EHWZHHQ
VXVWDLQDEOHGHYHORSPHQWDQGKXPDQULJKWVLVGLIÀFXOWWRRYHUORRN28
24
Art. 28 UDHR: “Everyone is entitled to a social and international order in which
the rights and freedoms set forth in this Declaration can be fully realized.”
25
Compare Michael J. Dennis and David P. Stewart, supra note 14, at 498.
26
Art. 2(1) ICESR: “Each State Party to the present Covenant undertakes to
take steps, individually and through international assistance and cooperation,
especially economic and technical …” See also the references to international
cooperation in Art. 11(1)(2) ICESCR.
27
For an evaluation of conditionalities in earlier structural adjustment programs
of the International Monetary Fund see for example Morris Goldstein, IMF
Structural Conditionalities: How Much Is Too Much?, Working Papers
2001/4, Institute for International Economics, available at <http://www.iie.
com/publications/wp/2001/01-4.pdf>, especially pp. 19-21. Critical on tied
governmental aid for example: Economic and Social Council, Economic Report
on Africa 2004: Unlocking Africa’s Potential in the Global Economy, UN Doc.
E/2004/17, 12 May 2004, at para. 11.
28
6HHIRUH[DPSOH2IÀFHRIWKH8QLWHG1DWLRQV+LJK&RPPLVVLRQHUIRU+XPDQ
Rights (hereinafter OHCHR), Human Rights, Poverty Reduction and Sustainable
Development: Health, Food and Water, A Background Paper, World Summit
on Sustainable Development, Johannesburg, 26 August – 4 September, 2002,
p. 2: “It is now widely accepted that – on the one hand – poverty should not
be seen only as lack of income, but also as a deprivation of human rights, and
– on the other hand – that unless the problems of poverty are addressed, there
and a fuller recognition of the positive feedback might ultimately help

to overcome distrust and denial and invite a more forceful utilization
of the interplay.
The added value of human rights-based approaches to sustain-
able development, including the value of traditional human rights
mechanisms, stems largely from the normative clarity of rights,
from the better foundation of advocacy grounded in law, from the
legal accountability29 of the state and of other duty holders, and from
the empowerment of the individual. The human rights principle of
equality and non-discrimination is of particular value to vulner-
able groups suffering from the uneven distribution of development
EHQHÀWV30 Moreover, the accepted notion of the interdependence of
can be no sustainable development. It is equally accepted that sustainable

development requires environmental protection and that environmental degrada-
tion leads directly and indirectly to violations of human rights.” And id. on p.
3: “… the Millennium Development Goals and the Millennium human rights
commitments are complementary and mutually-reinforcing.” – See also CHR,
Sub-Commission on the Promotion and Protection of Human Rights, 56th Sess.,
Working Paper (José Bengoa), Poverty as a Violation of Human Rights, UN
Doc. E/CN.4/Sub.2/2004/44, 7 June 2004.
29
For example CHR, The Right of Everyone to the Enjoyment of the Highest
Attainable Standard of Physical and Mental Health, Report of the Special
Rapporteur (Paul Hunt), UN Doc. E/CN.4/2004/49, 16 February 2004, para.
73-74.
30
For the value added by human rights-based approaches see OHCHR, Human
Rights and Poverty Reduction: A Conceptual Framework 1HZ<RUN DQG
Geneva: United Nations, 2004), HR/PUB/04/1; OHCHR, Draft Guidelines:
A Human Rights Approach to Poverty Reduction Strategies, 10 September
DYDLODEOH DW KWWS ZZZXQKFKUFKGHYHORSPHQWSRYHUW\ÀQDOKWPO!
OHCHR, “Human Rights in Development: Rights-based Approaches: How
do rights-based approaches differ and what is the value added?” – available at
http://www.unhchr.ch/development/approaches-07.html; see also the confer-
ence papers from Deutsche Stiftung für internationale Entwicklung (DSE),
International Policy Dialogue: Human Rights in Developing Countries: How
can Development Cooperation Contribute to Furthering Their Advancement,
available at <http://www.dse.de/ef/human_rights/>; CHR, Sub-commission
on the Promotion and Protection of Human Rights, 56th Sess., Conference
Working Paper (José Bengoa, Coordinator, Ad Hoc Group of Experts), Draft
Initial Elements for Discussion on Possible Guiding Principles on Human Rights,
Poverty and Extreme Poverty, UN Doc. E/CN.4/Sub.2/2004/25/Add.1, 9 July
human rights prompts quite automatically a more comprehensive

and integrative development approach. In the context of globaliza-
tion,31 human rights-based approaches can also help to do justice to
the interdependence between the individual person and the world at
large. As Federico Mayor put it: “… [W]e reclaim our democratic
entitlement to participate in global decisions that affect our lives
every day.”32
Human rights-based approaches may very well lead to new sets
of conditionalities in development aid,33 just as they strengthen
the claims for international assistance34 and for changes in the
international order,35 yet the apprehensions in this regard, on one
2004, especially at p. 14. See also OHCHR in Cooperation with the International
Bar Association, Human Rights in the Administration of Justice: A Manual on
Human Rights for Judges, Prosecutors and Lawyers, Professional Training
6HULHV1R1HZ<RUNDQG*HQHYD8QLWHG1DWLRQV
31
UN General Assembly, Fifty-Ninth Session, Globalization and Interdependence,
Report of the Secretary General, UN Doc. A/59/312.
32
Federico Mayor, “A Better World Is Possible”, 1 The Green Cross Optimist 8
(2004), referring at p. 9 to the World Citizen Legislative Initiative launched as
part of the World Campaign for the In-Depth Reform of the System of Interna-
tional Institutions (Ubuntu Forum). Information about the World Campaign is
available at <http://www.reformcampaign.net>.
33
With regard to the eligibility criteria of the United States Millennium Chal-
lenge Account see Steve Radelet, “Will the Millennium Challenge Account be
Different”, 26 Washington Quarterly, Spring 2003, 171-187; see also United
States Department of State, “Millennium Challenge Account: A New Compact
for Global Development”, Economic Perspectives (electronic journal) Vol.
8, No. 2, March 2003; Anup Shah, “The US and Foreign Aid Assistance”,
web page as updated 11 July 2004, available at <http://www.globalissues.
org/TradeRelated/Debt/USAid.asp>, Section: “Aid Money often Tied to Various
Restrictive Conditions”: “People can understand how tying aid on conditions
of improving human rights might be appealing, but …”.
34
OCHR, Human Rights and Poverty Reduction, supra note 30, 27-30, OCHR,
Draft Guidelines, supra note 30, Guideline 15, para. 215-223.
35
OCHR, Human Rights and Poverty Reduction, supra note 30, at 28: “…
LQWHUQDWLRQDOFRRSHUDWLRQLVQRWMXVWDERXWWHFKQLFDODQGÀQDQFLDODVVLVWDQFH
International assistance and cooperation also include the obligation to work
DFWLYHO\WRZDUGVDQHTXLWDEOHPXOWLODWHUDOWUDGHLQYHVWPHQWDQGÀQDQFLDOV\VWHP
that is conducive to the reduction and elimination of poverty.” See also A Fair
VLGH RU WKH RWKHU DUH WRR UHÁH[LYH RI QHJDWLYH H[SHULHQFHV ZLWK
prior development assistance and with policies that had not been
centred on human rights. If old conditionalities dictated policies
that all too often neglected the risk of uneven effects, including
the actual increase in poverty and in human rights violations, new
conditionalities tying aid to human rights implementation promise
E\GHÀQLWLRQWKHRSSRVLWHUHVXOW$QGLIROGFRQGLWLRQDOLWLHVGHSULYHG
the recipient country of ‘ownership’ with regard to its development,
human rights conditionalities assure ownership in the strongest pos-
sible way: the empowerment of the individual person inherent in the
concept of human rights places decision-making about development
(and the delegation of powers in this respect) into the hands of the
people, the strongest anchor for country-owned policies. After all,
WKHGHFODUDWLRQVDQGGHÀQLWLRQVRIKXPDQULJKWVRQWKHLQWHUQDWLRQDO
level, legally binding as they are, must remain to some degree always
in the realm of fairly general principles, since their full meaning
can only be realized through the understanding and expression of
the physical and psychological needs and desires of the individual
person. Importantly too, if the government of the recipient country
is in any event intent on pursuing a human rights-based approach
to development, conditionalities expressing the same objective are
not more burdensome than the prohibition against murder is for the
average peaceful person. Prescriptive rules for good citizenship or
good statesmanship may line up with conscience, compassion and
choice.36 At the same time, with the donor state bound as well by
human rights, conditionalities which have the likely potential to cause
YLRODWLRQVRIKXPDQULJKWVDUHQRORQJHUMXVWLÀDEOH37
Globalization: Creating Opportunities for All, Report of the World Commission

RQWKH6RFLDO'LPHQVLRQRI*OREDOL]DWLRQ*HQHYD,QWHUQDWLRQDO/DERXU2IÀFH
2004), available at <http://www.ilo.org/public/english/fairglobalization/report/
index.htm>.
36
See also below.
37
See for example, CHR, Sub-Commission on the Promotion and Protection
of Human Rights, Conference Working Paper, Draft Initial Elements, supra
note 30, p. 18: “States also have the obligation, in relation to other States and
through international organizations to which they belong, not to make it more
Similarly, for the donor state it should bring relief that not only
its own obligations but those of the recipient state will be grounded
in human rights. The sense of promise at the outset of a cooperative
effort is less likely to turn into frustration about corruption and other
black holes sucking up the assistance provided: the implementation of
human rights, especially rights to information, individual participation
in decision-making and access to justice, constitutes the most effec-
tive means to suppress corruption and mismanagement.38 The more
directly assistance is channelled toward human rights implementation,
the greater the multiplier effect due to individual empowerment and
personal initiative.
Despite the clear positive impact of human rights-based approaches
on sustainable development, it would be a mistake to discount the
feedback from the opposite direction, i.e. the constructive effect on
human rights due to mechanisms and policies arrived at in the pursuit
of sustainable development.
7KHUHFRJQLWLRQWKDWLQWUXVLYHFRQGLWLRQDOLWLHVDUHGLIÀFXOWWRPDLQ
tain has led to development-oriented efforts to reduce them,39 efforts
which in turn provide space for human rights oriented choices.40
GLIÀFXOWIRURWKHU6WDWHVWRIXOÀOOKXPDQULJKWVREOLJDWLRQVQRUWRUHTXLUHWKHP
to violate human rights.”
38
Petter Langseth and Edgardo Buscaglia, Empowering the Victims of Corruption
through Social Control Mechanisms5HVHDUFKDQG6FLHQWLÀF6HULHV&,&3
*OREDO3URJUDP$JDLQVW&RUUXSWLRQ8QLWHG1DWLRQV2IÀFHIRU'UXJ&RQWURO
and Crime Prevention/Centre for International Crime Prevention, Prague,
October 2001, p. 8. For the relevant treaty effort, see United Nations Convention
Against Corruption, adopted by GA Res. 58/4 of 31 October 2003, available at
http://www.unodc.org/unodc/en/crime_convention_corruption.html.
39
On progress with regard to the recommendation to untie aid under the Brussels
Program of Action, supra note 6, see Economic and Social Council, Resources
Mobilization and Enabling Environment for Poverty Eradication in the Context
of the Implementation of the Program of Action for the Least Developed
Countries for the Decade 2001-2010, Report of the Secretary-General, UN
Doc. E/2004/54, 23 April 2004, para. 27.
40
Commission on Human Rights, Sixtieth Session, Report of the Independent
Expert (Bernards Mudho), Effects of Structural Adjustment Policies and Foreign
Debt on the Full Enjoyment of Human Rights, particularly Economic, Social
and Cultural Rights, UN Doc. E/CN.4/2004/47, 16 February 2004, para. 27:
Environmental impact assessments41 curtail the assault both against

nature and against human rights dependent on harmony with nature.
If conceived properly,42 their impetus towards ‘human scale’ develop-
ment projects contributes to the right to development. Principles and
mechanisms grown under the umbrella of the sustainable development
concept, especially Principle 10 of the Rio Declaration on Environment
and Development,43 the multi-stakeholder process44 and partnership
“The general shift towards country ownership and global partnership, as marked
by the Monterrey Consensus and the PRSP and HIPC initiatives, provides an
ample but unexploited opportunity for the national budget processes to place
human rights at its centre.”
41
Ved P. Nanda and George Pring, International Law and Policy for the 21st
Century$UGVOH\1<7UDQVQDWLRQDO3XEOLVKHUV3KLOLSSH6DQGV
Principles of International Environmental Law (Cambridge, UK: Cambridge
University Press, 2003) 799-825; Among relevant treaties, see e.g. Convention
on Environmental Impact in a Transboundary Context, 25 February 1991, 30
ILM 800 (1991) (Espoo Convention);
42
2QFXUUHQWÁDZVDQGFRQVWUDLQWVLQHQYLURQPHQWDOLPSDFWDVVHVVPHQWV9HG3
Nanda and George Pring, supra note 41, 147-148.
43
Rio Declaration on Environment and Development, supra note 3, Principle
10: “Environmental issues are best handled with the participation of all
concerned citizens, at the relevant level. At the national level, each individual
shall have appropriate access to information concerning the environment that
is held by public authorities, including information on hazardous materials
and activities in their communities, and the opportunity to participate in deci-
sion-making processes. States shall facilitate and encourage public awareness
and participation by making information widely available. Effective access to
judicial and administrative proceedings, including redress and remedy, shall be
provided.”
44
See for example Robin Grimble, Man-Kwun Chan, Julia Aglionb and Julian
Quan, Trees and Trade-Offs: A Stakeholder Approach to Natural Resource
Management, International Institute for Environment and Development,
Gatekeeper Series No. 52; Grazia Borrini-Feyerabend with Dianne Buchan,
eds, Beyond Fences: Seeking Social Sustainability in Conservation, Vol. 1: A
Process Companion, (Gland, Switzerland and Cambridge, UK: IUCN, 1997,
2001).
approaches45 in line with the Bali Principles,46 should be seen not just
as lesser alternatives but important additional tools47LQWKHIXOÀOPHQW
of human rights, especially in the context of private sector involvement
and transboundary natural resource management.48 Looking at the
45
Partnerships between states and major groups, especially civil society and the
private sector, represented the so-called Type 2 outcome of the World Summit
on Sustainable Development, see also the frequent references to partnerships in
the Johannesburg Declaration and Plan of Implementation, supra note 3. Since
most partnerships for sustainable development registered with the secretariat of
the Commission on Sustainable Development were announced around the time
of the 2002 Johannesburg Summit, it is too early to provide full evaluations:
UN Economic and Social Council, Commission on Sustainable Development
(hereinafter CSD), Twelfth Session, Partnerships for Sustainable Development,
Report of the Secretary General, UN Doc. E/CN.17/2004/16, 10 February 2004,
para. 34-36, 68. Compare also Policy Principles and Implementation Guidelines
for Private Sector Participation in Sustainable Water Supply and Sanitation
Services, submitted at a Side Event initiated by Switzerland and Swiss Re
at CSD, Twelfth Session, 28 April 2004, available at <http://www.pspwater.
org>.
46
Guiding Principles for Partnerships for Sustainable Development (‘type 2
outcomes’) to be Elaborated by Interested Parties in the Context of the World
Summit on Sustainable Development, 7 June 2002, available at <http://www.
un.org/esa/sustdev/partnerships/guiding_principles7june2002.pdf>. The Prin-
ciples were drafted during the fourth session of the Preparatory Committee for
WKH:66'EXWQHYHUÀQDOL]HG7KH\UHPDLQQHYHUWKHOHVVDUHIHUHQFHSRLQW)RU
a further formulation of partnership criteria see CSD, Report of the Eleventh
Session (27 January 2003 and 28 April – 9 May 2003), ECOSOC Off. Rec.
2003, Supp. No. 9, UN Doc. E/2003/29-E/CN.17/2003/6, Draft Resolution I,
para. 21-24.
47
See importantly the Convention on Access to Information, Public Participation
in Decision-Making and Access to Justice in Environmental Matters (Aarhus
Convention), 25 June 1998, 38 ILM 517 (1999); Peter Davis, “Public Participa-
tion, the Aarhus Convention and the European Community”, in Donald N.
Zillman, Alastair R. Lucas, George (Rock) Pring, eds, Human Rights in Natural
Resource Development: Public Participation in the Sustainable Development
of Mining and Energy Resources2[IRUGDQG1HZ<RUN2[IRUG8QLYHUVLW\
Press, 2002) 155-185.
48
While human rights mechanisms, especially those on the regional level, have
also been helpful in the transboundary context, the access of foreign claimants
to national procedures and remedies is generally stronger and more immedi-
ate, especially against non-state actors, under processes created outside the
feedback from this direction, the understanding about the interdepend-

ence and integration of the three pillars of sustainable development
can be expected to prompt quite automatically a more comprehensive
and integrative human rights implementation.
Of course, the point could be made that Principle 10, multi-stake-
holder processes and partnership approaches represent in any event
nothing other than the repackaged expression and practical application
of existing human rights,49 but such an argument may be in certain
contexts counterproductive, especially in light of lingering political
and ideological resistance against human rights – which in turn
may have been provoked by ideologized advocacy for human rights
– mechanisms which do not carry the human rights label hold at times
the advantage of easier acceptance.50 In the pursuit of human rights,
complementary mechanisms conceived outside of the human rights
ÀHOGFDQRIIHUadditional chances for success.51 At the same time, these
WUDGLWLRQDOKXPDQULJKWVÀHOG,QPRUHGHWDLORQWUDQVERXQGDU\ULJKWVVHH3DWULFLD
Birnie and Alan Boyle, supra note 23, 265-275.
49
See e.g. Arts 8, 10, 19, 20 and 21(1) UDHR, Arts 2(3), 14(1), 19, 21, 22,
25 International Covenant on Civil and Political Rights, adopted by GA
Res.2200A(XXI) of 16 December 1966, 999 UNTS 171.
50
James D. Wolfensohn, President, The World Bank Group, “Human Rights and
Development Toward Mutual Reinforcement”, Remarks at a Dialogue on Human
Rights and Development Organized by the Ethical Globalization Initiative and
1HZ<RUN8QLYHUVLW\/DZ6FKRRO0DUFK´,·YHVDLGWR0DU\>5RELQVRQ@
PDQ\WLPHV<RXNQRZRQHRIWKHWKLQJVZHKDYHWRGRLQRXULQVWLWXWLRQLVWRWU\
and get things done but to some of our shareholders the very mention of the word
KXPDQULJKWVLVLQÁDPPDWRU\ODQJXDJH$QGLW·VJHWWLQJLQWRDUHDVRISROLWLFV
and it’s getting into areas that they are very concerned about. We decide to just
go around it and we talk the language of economics and social development.”
He also observed: “… [W]e have a common enemy. And, it is an enemy which
is the enemy of indifference. It’s the enemy of lack of focus on what each of
our communities, the development and rights-based communities, think about.
And it is here, that I think together we could make a big addition. … [W]hen
the two of us are talking about our respective disciplines, let’s not forget that
there are people out there that neither care about rights nor development.”
51
For example, with regard to the Jabiluka uranium mining project in Kakadu
National Park (on a site which is part of the traditional lands of the Mirrar
People) it has been pointed out: “The Jabiluka project exposes the legal issues
that arise in practice. It would not have been predicted, for example, that appeal
observations should not be misunderstood as a formalistic insistence

on a clear separation between the two directions of feedback. The
relationship between sustainable development and human rights is
so fruitful and intertwined,52WKDWLWLVIUHTXHQWO\IXWLOHDQGDUWLÀFLDO
to sort out linear sequences of cause and effect.
V. Conceptual integrations: Freedom in economic,

social and cultural rights – Caring in civil and political
rights
The mutual feedback between sustainable development and human
rights is not just mechanical but also conceptual. Especially the
integration of social development and environmental protection into
HFRQRPLFGHYHORSPHQWKDVLQÁXHQFHGWKHLQWHUSUHWDWLRQRIKXPDQ
rights. Conversely, a better understanding about the approximation
and integration of the two branches of human rights has invigorated
and reshaped the very idea of development. Thus, it may be recalled
that economic, social and cultural human rights were once called
‘passive’, and the corresponding state obligations ‘active’, with the
state ‘providing’ and the person being ‘provided for’. In contrast, the
‘active’ character of these human rights has come to the forefront
when paired with sustainable development concerns, as often best
expressed in the voices of indigenous peoples:53 merged with advo-
against the mine site would be made through the World Heritage Committee,
when more likely avenues for communication might have been the Human
Rights Committee under the ICCPR or CERD under the Racial Discrimination
Convention.” Gillian Triggs, “The Rights of Indigenous Peoples to Participate in
Resource Development: An International Legal Perspective”, in Human Rights
in Natural Resource Development, supra note 47, 123, 154
52
See for example the close interconnection with regard to the human rights
and role of women in Agenda 21, supra note 3, Chapter 24 “Global Action
for Women Towards Sustainable and Equitable Development”, esp. 24.1 and
24.5.
53
1RWWKDWWKHVHYRLFHVDUHVXIÀFLHQWO\KHDUG6HH3HUPDQHQW)RUXPRQ,QGLJ-
enous Issues, Fourth Session, 16-27 May 2005, Report of the International
Workshop on Methodologies regarding Free, Prior and Informed Consent and
,QGLJHQRXV3HRSOHV1HZ<RUN-DQXDU\81'RF(&
cacy for the protection of culture and the preservation of nature, the
right to food is shown to incorporate a right to provide food your
RZQZD\QDPHO\WRÀVKKXQWDQGJDWKHUSODQWVLQDFFRUGDQFHZLWK
traditional knowledge.54 The right to health adds to the claim for
medical service a claim against pollution and coercion into disease.55
and Permanent Forum on Indigenous Issues, Third Session, 10-21 May 2004,
Inter-Agency Support Group on Indigenous Issues, Report on Free, Prior and
Informed Consent, UN Doc. E/C.19/2004/11, 12 March 2004. See also ILO
Convention No. 169 concerning Indigenous and Tribal Peoples in Independent
Countries, 27 June 1989, 28 ILM 1382 (1989); Draft United Nations Declaration
on the Rights of Indigenous Peoples, UN Doc. E/CN.4/Sub.2/Res/1994/45
– E/CN.4/1994/45 26 August 1994; recent developments with regard to the Draft
Declaration can be found in CHR, Sixtieth Session, Indigenous Issues, Report
of the Working Group established in accordance with Commission on Human
Rights resolution 1995/32, UN Doc. E/CN.4/2004/81 and Add.1, 7 January 2004
7KH$GGHQGXPUHÁHFWVWH[WVRIWKHDUWLFOHVRIWKH'UDIW'HFODUDWLRQVXSSRUWHG
by all indigenous organizations).
54
E.g. CHR, Indigenous Issues, Report of the Working Group, Addendum, UN
Doc. E/CN.4/2004/81/Add.1, supra note 53, Art. 21; see also CSD, Twelfth
Session, Indigenous Peoples’ Caucus Statement, available at <http://www.
un.org/esa/sustdev/csd/csd12/statements/indigenous_2104.pdf>; Committee
on Economic, Social and Cultural Rights (CESCR), Twenty-ninth Session, The
Right to Water (Arts. 11 and 12 of the International Covenant on Economic,
Social and Cultural Rights), General Comment No. 15 (2002) UN Doc. E/
CN.12/2002/11, 20 January 2003, para. 7 – For the right to food in general see
most recently CHR Resolution 2004/19, The Right to Food, UN Doc. E/2004/23-
E/CN.4/2004/127, 16 April 2004; CHR, Sixtieth Session, The Right to Food,
Report by the Special Rapporteur (Jean Ziegler), UN Doc. E/CN.4/2004/10, 9
February 2004.
55
These recognitions with regard to the right to health were in particular fostered
in connection with the right to water, see CESCR, General Comment No. 15,
supra note 54, para. 8: “Environmental hygiene, as an aspect of the right to
health under article 12, paragraph 2(b) of the Covenant, encompasses taking
steps on a non-discriminatory basis to prevent threats to health from unsafe and
toxic water conditions. …” See also para. 44, e.g. in para. 44 b): “Violations of
the obligation to protect follow from the failure of a State to take all necessary
measures to safeguard persons within their jurisdiction from infringements
of the right to water by third parties. …”. And see about another link: CHR,
Sixtieth Session, Adverse Effects of the Illicit Movement and Dumping of
Toxic and Dangerous Products and Wastes on the Enjoyment of Human Rights,
Report of the Special Rapporteur (Fatma-Zohra Ouhachi-Vesely), UN Doc.
The right to housing becomes a call to continue the use of material

and design expressing cultural diversity and a close connection to
nature.56 Freedom is no longer just an important implementation
tool – as we know freedom of information, opinion, association and
political participation are57 – but an integral part of economic, social
and cultural human rights themselves58 and a characteristic feature
E/CN.4/2004/46, 15 December 2003, para. 79. With regard to the right to health
see also CHR Resolution 2004/27, The Right of Everyone to the Enjoyment of
the Highest Attainable Standard of Physical and Mental Health, 16 April 2004,
UN Doc. E/2004/23-E/CN.4/2004/127, and the Report of the Special Rapporteur
on the same topic, supra note 29.
56
Committee on Economic, Social and Cultural Rights [CESCR], The Right to
Adequate Housing (Art.11(1)), General Comment 4, UN Doc. E/1992/23, 1
December 1991, para. 8 c): “… In societies where natural materials constitute
the chief source of building materials for housing, steps should be taken by
States parties to ensure the availability of such materials.” Para. 8 g): “Cultural
adequacy. The way housing is constructed, the building materials used and the
policies supporting these must appropriately enable the expression of cultural
identity and diversity of housing …” Fact Sheet No. 21, The Human Right to
Adequate Housing, available at <http://www.unhchr.ch/housing/fs21.htm>, p.
13: “States must protect people’s rights to build their own dwellings and order
their environments in a manner which most effectively suits their culture, skills,
needs and wishes.” For a convenient survey on relevant instruments with regard
to the right to housing see id., Annex I (Legal sources of the right to adequate
housing under international human rights law).
57
For example CHR, Adverse Effects of the Illicit Movement and Dumping of
Toxic and Dangerous Products and Wastes …, supra note 55, para. 69 and
81-86.
58
CESCR, General Comment 4, supra note 56, para. 9. See also id. para. 10:
“… many of the measures required to promote the right to housing would
only require the abstention of the Government from certain practices and a
commitment to facilitating ‘self-help’ by affected groups. …”; CESCR, General
Comment No. 15, supra note 54, para. 10: “The right to water contains both
freedoms and entitlements. The freedoms include the right to maintain access to
existing water supplies necessary for the right to water, and the right to be free
from interference, such as the right to be free from arbitrary disconnections or
contamination of water supplies.” Compare here also para. 11: “Water should
be treated as a social and cultural good, and not primarily as an economic
good.”
of sustainable development.59$VUHÁHFWHGDOVRLQ3ULQFLSOHRIWKH
Rio Declaration on Environment and Development,60 sustainable
development deserves its name only if it supports the free unfolding
of the human personality and the full expression of culture in harmony
with nature.61
Or consider the perceptions about civil and political human rights.
The generalization of these human rights as excessively individual-
istic and self-centred has always been too narrow a view. Rights of
expression, information, association and political participation are
often driven by concern for others and the community at large. The
‘relational’ or ‘self-transcending’ aspect of human rights62 comes
59
See in depth Amartya Sen, supra note 9. Compare also id., p. 288, about the
constitutive role of civil and political freedoms for the process of development:
“The relevant freedoms include the liberty of acting as citizens who matter
and whose voices count, rather than living as well-fed, well-clothed, and well-
entertained vassals.” For emphasis on creativity in development see Manfred
A. Max-Neef (with contributions of Antonio Elizalde and Martin Hopenhayn),
+XPDQ6FDOH'HYHORSPHQW&RQFHSWLRQV$SSOLFDWLRQDQG)XUWKHU5HÁHFWLRQV
1HZ<RUN/RQGRQ7KH$SH[3UHVV
60
Supra notes 3 and 18.
61
Cultural diversity is not an excuse for human rights violations. They really are
the opposite of culture. See also Our Creative Diversity, Report of the World
Commission for Culture and Development (Paris: UNESCO Publishing 1995),
available at <http://unesdoc.unesco.org/ulis/index.html>.
62
See in particular Martha Minow, “Rights for the Next Generation”, 9 Harvard
Women’s Law Journal 1 (1986)16: “Liberal freedoms in some measure retained
WKHSXUSRVHRIHQDEOLQJDIÀOLDWLRQVEHWZHHQSHRSOH)UHHGRPRIDVVRFLDWLRQ
freedom of religion, rights to marry, rights to procreate, and rights to preserve
contact with family members are all current versions of this kind of rights
conception – one at odds with the claim that rights protect autonomy rather
than human relationships or connections.” Arguing for “rights to connection”,
0LQRZTXHVWLRQVDWS´DSHUFHSWLRQRIULJKWVWKDWÀWVSHRSOHLQWRDVORW
labelled, ‘the individual’, on a game board with the state as the only player”
and opposes “the view that rights necessarily run only between an individual
and the state, and that rights only mark and preserve distances between people.
Instead, rights could be part of legal arrangements that permit, not to mention
SURPRWHUHODWLRQVKLSV«²ZKLOHDOVRFRPEDWWLQJKLHUDUFK\DQGÀ[HG>S@
assignments of status. This conception remains problematic given a regime
of rights that emphasize individual autonomy to the exclusion of duty and
interpersonal connection.”
again to the forefront in sustainable development when these civil

and political rights are exercised on behalf of nature and on behalf
of fellow human beings worldwide, “regardless of borders”.63 The
strength of the voice of non-governmental organizations is based to
a large degree on this aspect of their advocacy64 and on this aspect
of civil and political human rights.
VI. The close relationship between right and

responsibility – responsibility as right
Contemplating the component of caring in civil and political rights
makes it easy to see how close the relationship between rights and
UHVSRQVLELOLWLHVFDQEH6LJQLÀFDQWO\WKH,8&1'UDIW,QWHUQDWLRQDO
Covenant on Environment and Development65 speaks of the need
63
CHR, Fifty-Sixth Session, Report of the Working Group on Arbitrary Detention,
Addendum, Opinions adopted by the Working Group on Arbitrary Detention,
UN Doc. E/CN.4/2000/4/Add.1, 17 December 1999, p. 49, Opinion No. 9/1999
(Russian Federation) adopted 20 May, 1999: The Working Group found the
detention of Grigorii Pasko arbitrary, holding in para. 7 (a): “He was motivated
only by a concern to alert national and international opinion to the risks to the
environment from the breakage for recycling of defective nuclear submarines,
«DQGIURPWKHFODQGHVWLQHGXPSLQJRIWKHLUQXFOHDUZDVWHVLQWRWKH3DFLÀF
Ocean … Damage to or protection of the environment is an issue that knows no
boundaries … Consequently, it should be possible to freely engage in ecological
criticism: this forms part of the right to freedom of expression ‘regardless of
borders’ …”
64
For an example of advocacy highlighting the relationship between human
rights and sustainable development see “Letter dated 22 November 2002 from
Greenpeace International, the International Transport Workers’ Federation and
the World Wide Fund for Nature addressed to the Secretary General”, in Oceans
and the Law of the Sea, Consultative Group on Flag State Implementation,
Report of the Secretary-General, General Assembly 59th Session, 5 March
2004, U.N. Doc. A/59/63, Annex I, p. 137.
65
IUCN Commission on Environmental Law, Draft Covenant on Environment
and Development, Third Edition: Second Revised Text, Prepared in cooperation
with the International Council on Environmental Law, IUCN, Gland and
Cambridge 2004, available at <http://www.iucn.org/themes/law/pdfdocuments/
EPLP31EN_rev2.pdf>.
to integrate rights and responsibilities66 in the pursuit of sustainable

development. The linkage is not just encapsulated in the idea of
‘responsibility towards rights’,67 but in the recognition of the right
to responsibility, i.e. the right to own and exercise responsibility, and
in the further recognition that the responsibility to protect, care or
help can itself be treated as a human right. This tight knot between
right and responsibility is expressed quite clearly when indigenous
peoples speak of the right to uphold their responsibilities towards
future generations, as in Art. 25 of the Draft Declaration on the Rights
66
Id. Art. 1. – With regard to an evaluation of the IUCN Draft Covenant see Patricia
Birnie and Alan Boyle, supra note 23, p. 68: “Not every article is necessarily
lex lata, but overall this is perhaps the most accurate portrayal of the present
corpus of existing and developing international environmental law.” And of
sustainable development law, one might add.
67
Responsibility towards rights is part of the theme of the Universal Declaration
of Human Responsibilities, Proposed by the InterAction Council, 1 September
1997, available <http://www.interactioncouncil.org>; see also Oscar Arias, Some
Contributions to a Universal Declaration of Human Obligations, April 1997,
available at www.interactioncouncil.org/speeches/paper/parias971.pdf; Hans
Küng, “Human Responsibilities Reinforce Human Rights: The Global Ethic
Project”, in Barend van der Heijden, Bahia Tahzib-Lie eds, 5HÁHFWLRQVRQWKH
Universal Declaration of Human Rights, A Fiftieth Anniversary Anthology,
under the auspices of the Netherlands Ministry of Foreign Affairs (The Hague:
Martinus Nijhoff Publishers 1998) Chapter 24, also at <http://www.interac-
tioncouncil.org/speeches/pking981.html>. – For the treatment of responsibility
towards rights see also Edith Brown Weiss, In Fairness to Future Generations:
International Law, Common Patrimony, and Intergenerational Equity (Tokyo:
8QLWHG1DWLRQV8QLYHUVLW\'REEV)HUU\1<7UDQVQDWLRQDO3XEOLVKHUV
45; see also UNESCO, General Conference, 29th Session, Declaration on
the Responsibilities of Present Generations Towards Future Generations, 12
November 1997, available at <http://www.unesco.org/education/esd/english/
declar.shtml>. – On human rights and responsibilities see also CHR, Fifty-
Ninth Session, Human Rights and Human Responsibilities, Final Report of
the Special Rapporteur (Miguel Alfonso Martínez), UN Doc.E/CN.4/2003, 17
March 2003: the Report contains in Annex I a Pre-Draft Declaration on Human
Social Responsibilities; American Declaration on the Rights and Duties of Man,
adopted at Bogota on 2 May 1948, reprinted in Human Rights, A Compilation of
International Instruments9RO,5HJLRQDO,QVWUXPHQWV1HZ<RUNDQG*HQHYD
United Nations 1997) UN Doc. ST/HR/1/Rev.5 (Vol. II) at p. 5. – With regard
to efforts to declare human responsibilities, see also the comments infra note
88.
of Indigenous Peoples.68 Similarly, parents know their responsibili-

ties instinctively and law has long acknowledged that the parental
responsibility to care for the child is simultaneously a parental right.
Hindrances to the exercise of that responsibility, for example by
preventing a parent from rescuing her child, may amount to sheer
torture. And not just in the colloquial sense: methods of psychological
torture exploiting the closeness of human relationships by threatening
RULQÁLFWLQJKDUPWRRWKHUVFRQVWLWXWHYLRODWLRQVRIWKHKXPDQULJKWQRW
to be tortured under Art. 7 ICCPR and Art. 5 UDHR.69 The closeness
between right and responsibility, to the point of interchangeability,
is also apparent in the reference to both right and responsibility to
resist tyranny.70
68
Supra note 53.
69
See in particular Quinteros v. Uruguay, Communication No. 107/1981, Opinion
adopted 21 July 1983, Report of the Human Rights Committee, GAOR, 38th
Sess., Suppl. No. 40 (1983), UN Doc. A/38/40, Annex XXII, p. 224, para. 14:
“The Committee understands the anguish and stress caused to the mother by
the disappearance of her daughter and by the continuing uncertainty concerning
her fate and whereabouts. The author has the right to know what has happened
to her daughter. In these respects, she too is a victim of the violations of the
Covenant suffered by her daughter in particular of article 7.” Since the mother
was not even a prime target of the violation by the state, the opinion of the
+XPDQ5LJKWV&RPPLWWHHLVSDUWLFXODUO\VLJQLÀFDQWLQLWVUHFRJQLWLRQRIWKH
FORVH LGHQWLÀFDWLRQ RI RQH SHUVRQ ZLWK DQRWKHU RQH DQG WKH OHJDO SURWHFWLRQ
extended in this regard.
70
See e.g. an initial draft of 1997 for a UNESCO Declaration of Human Re-
sponsibilities, Art. 12: “Wherever rulers repress the ruled, institutions threaten
persons, or might oppresses right, human beings have not only the right but
the responsibility to resist – whenever possible non-violently.” – available at
<http://astro.temple.edu/~dialogue/Antho/unesco.htm>; compare also Erica-
Irene A. Daes (Special Rapporteur), Freedom of the Individual under Law:
A Study on the Individual’s Duties to the Community and the Limitations on
Human Rights and Freedoms under Article 29 of the Universal Declaration of
Human Rights1HZ<RUN8QLWHG1DWLRQVSSDUDTXRWLQJ$UW
20 para. 4 of the Greek Constitution: “It is the right and the duty of the Greeks
to resist by all means anyone attempting to abolish by force this constitution.”
And see the conceptual ambiguity with regard to right and responsibility in “to
be compelled” in the third preambular paragraph of the Universal Declaration
of Human Rights: “Whereas it is essential, if man is not to be compelled to
The possibility of perceiving responsibility as right exists both

ZLWK UHJDUG WR UHVSRQVLELOLW\ DV VXFK DQG ZLWK UHJDUG WR VSHFLÀF
responsibilities.71 The ‘must’ inherent in responsibility does not speak
against the perception of responsibility as right – after all, freedom
itself is a ‘must’, not just because freedom and capability impose
responsibility72 but because freedom and its choices cannot be shaken
off, much as we may try. Conversely, freedom is not just instrumental
for the exercise of responsibility73 but an immanent constituent of
responsibility.74 Human dignity remains elusive without the searching,
ÀQGLQJDFFHSWLQJKROGLQJDQGH[HUFLVLQJRIRQH·VRZQUHVSRQVLELOLW\
DQGLPSRUWDQWO\LWLVOLNHZLVHORVWXQGHUWKHGLFWDWHRIXQUHÁHFWHG
automatic duty. Big Brother may decree empty pleasure or slavery,
human beings will be sheep in both cases.
7KHPRUHUHVSRQVLELOLW\²DQGVSHFLÀFDOO\UHVSRQVLELOLW\WRFDUH
for others and nature – is recognized as an indispensable feature of
human dignity,75 the more the door is open to see it simultaneously as
a human right. Oscar Schachter deduced from the concept of inherent
human dignity the need for the “regard for” the responsibility of
have recourse, as a last resort, to rebellion against tyranny and oppression, that
human rights should be protected by the rule of law”.
71
The opposite possibility of reconceptualizing right as responsibility is addressed
below.
72
Amartya Sen, supra note 9, p. 284: “… [H]aving the freedom and capability
to do something does impose on the person the duty to consider whether to do
it or not, and this does involve individual responsibility.”
73
Id.: “Responsibility requires freedom.”
74
The thought of responsibility as right, and right as responsibility (considered
further below), appears to be anticipated in Laurence Tribe, “Ways Not to Think
About Plastic Trees: New Foundations for Environmental Law”, 83 Yale L.J.
(1974) 1315, 1326: “We can be truly free to pursue our ends only if we act out
of obligation, the seeming antithesis of freedom … To be free is to choose what
we shall want, what we shall value, and therefore what we shall be.”
75
See also about ‘ought’ as part of ‘being’ in Hans Jonas, The Imperative of
Responsibility: In Search of an Ethics for the Technological Age (Chicago:
University of Chicago Press 1984), originally: Das Prinzip Verantwortung:
Versuch einer Ethik für die Technologische Zivilisation (Frankfurt a.M.: Insel
Verlag 1979) Chapter III.1
individuals.76 He also stated: “Drawing upon the conception of human

dignity and the intrinsic worth of every person, we can extend and
strengthen human rights by formulating new rights or construing
existing rights to apply to new situations.”77
,WLVQRWDOZD\VHDV\RUHYHQSRVVLEOHWRVHHVSHFLÀFUHVSRQVLELOLWLHV
towards human rights and towards sustainable development as human
rights themselves. The point here is not to discuss the basis, nature
and reach of responsibilities but the circumstances which permit
their perception as rights. In this context, it does not matter if the
recognition of responsibilities arose within oneself or if it originated
in others and was internalized only subsequently. It does not matter if
responsibility follows from the sheer capacity to help or from one’s
contribution to the suffering of people and the assault on nature. It
does not matter if the responsibility to care entails direct help or the
change of institutions.78 And it does not matter – in the absence of
FRQÁLFWLQJULJKWVZKLFKPD\GHPDQGSULRULW\²LIWKHREMHFWRIFDUH
is distant or near: mental as much as physical proximity may count
in recognizing that the responsibility is ‘close to the heart’,79 close
76
Oscar Schachter, “Human Dignity as a Normative Concept”, 77 AJIL 848
(1983) 850, 851. – For a connection of duty, dignity and liberty compare also
American Declaration on the Rights and Duties of Man, supraQRWHÀUVW
preambular para.: “All men are born free and equal in dignity and in rights,
and, being endowed by nature with reason and conscience, they should conduct
themselves as brothers to one another;” second preambular para.: “While rights
exalt individual liberty, duties express the dignity of that liberty.”
77
Oscar Schachter, supra note 76, at 853
78
Thomas W. Pogge, World Poverty and Human Rights: Cosmopolitan Responsi-
bilities and Reforms0DLGHQ0DVV%ODFNZHOO3XEOLVKLQJÀUVWSXEOLVKHG
Cambridge, UK: Polity Press 2002) p. 170: “One ought not to cooperate in the
imposition of a coercive institutional order that avoidably leaves human rights
XQIXOÀOOHGZLWKRXWPDNLQJUHDVRQDEOHHIIRUWVWRDLGLWVYLFWLPVDQGWRSURPRWH
institutional reform.” – Compare also Art.11 of the Pre-Draft Declaration on
Human Social Responsibilities in the Final Report of the Special Rapporteur
on Human Rights and Human Responsibilities, supra note 67.
79
Nobody can dictate to human beings how narrow their heart and how close those
for whom they care should be. Compare also Philip Allott, “State Responsibility
and the Unmaking of International Law”, 29 Harvard International Law Journal
(1988) 1, 15: “If international lawyers seek the long-term improvement of
enough to be experienced also as a human right. Reason and respect,80

sympathy and commitment,81 hope and fear (not for oneself but for
humankind and the fate of the world)82 have all been shown to foster
awareness about responsibility,83 but these factors of deduction and
motivation are not always strong enough to carry the intensity and
inner compulsion which call for the translation of responsibility into
right. Instead, the knot between responsibility and right is tied by
conscience and compassion, or put more bluntly, by conscience84
and love.85
Essentially, a three-layered approach may be most helpful in an
attempt to re-visualize responsibility as right: First, as pointed out
above, responsibility as a feature of human dignity speaks already for
a human right not to be deprived of responsibility as such. Secondly,
the human self as a ‘relational’ self also means that the responsibility
to protect, care or help must be at the same time a human right: the
self is not a cell in isolation. Thirdly, insofar as the responsibility is
centred on particular objects of care (possibly including the world
DVDZKROHLWVSHUFHSWLRQDVDKXPDQULJKWZLOOEHLQÁXHQFHGE\WKH
international society and the increasing realization of justice, their aim must be
to bring together the moral sense of the human being acting in national society
and the moral sense of the human being acting in international society. The
values that the law seeks to make actual are not different in the two realms;
they are identical.”
80
Immanuel Kant, Critique of Practical ReasonWUDQVO1HZ<RUN%REEV0HUULOO
1956) originally Kritik der reinen Vernunft (1788); John Rawls, A Theory of
Justice (Cambridge, Mass.: Harvard University Press 1971), esp. pp. 118-192,
136-142, 378.
81
On sympathy and commitment see for example Amartya Sen, supra note 9, p.
270
82
Hans Jonas, supra note 75, Chapter III.3 a)
83
See also Klaus M. Leisinger, “Entwicklung mit menschlichem Antlitz: Eine
globale humanistische Herausforderung”, in Frank Geerk, ed., Kultur und
Menschlichkeit: Neue Wege des Humanismus (Basel: Schwabe & Co. AG,
1999), 159.
84
On liberty of conscience, see John Rawls, supra note 80, pp. 205-211.
85
For an extensive study of emotions,
motions, including compassion and love, see Martha
C. Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge
University Press 2001).
uniqueness of each person:86 human rights express the needs of the

self as legally binding claims.87 Responsibilities respond to needs.
$VIDUDVWKHUHVSRQVHWRQHHGVÁRZVDOVRIURPDneed of the self to
UHVSRQGLWZRXOGEHUDWLRQDOWRUHFRJQL]HWKHVSHFLÀHGUHVSRQVLELOLW\
as the expression of a human right.
VII. Advantages of visualizing responsibility as right

An understanding of responsibility as right has immediate advantages
for sustainable development. No longer is the responsibility towards
other human beings and nature seen merely as a burden and limitation
of freedom, but instead, wherever the new visualization might be pos-
VLEOHPXFKPRUHFUHDWLYLW\DQGHQHUJ\DUHVHWIUHHWRÀQGVROXWLRQV
Regulatory approaches to advance sustainable development are less
onerous if one does not want to damage nature or violate the human
ULJKWVRIRWKHUVLQWKHÀUVWSODFH880RUHVLJQLÀFDQWO\UHVSRQVLELOLWLHV
that are nothing other than top-down commands of dictatorship are
more easily discerned from responsibilities that are bottom-up chal-
OHQJHVWRXQZLVHJRYHUQDQFH²GHSHQGLQJRQWKHHDVHRUGLIÀFXOW\LQ
perceiving a responsibility as right. Put differently, if the ‘relational’
self (self-transcendence) gets wings with the immanence of freedom
86
Not only ‘ought’ as part of ‘being’, but also ‘being’ as part of ‘ought’ may
support the re-conceptualization of responsibility as right.
87
Human rights signify the recognition of a moral ‘ought’ as law, the ‘ought’
necessary to still the needs of the human self. Contemplated are here physical
and psychological needs of the self against its destruction and deterioration and
WRZDUGVLWVGHYHORSPHQWDQGIXOOXQIROGLQJ²)RUDVXUYH\RIYDULRXVGHÀQLWLRQV
of human rights, see Jerome Shestack, “The Jurisprudence of Human Rights”,
in Theodor Meron ed., Human Rights in International Law (Oxford: Clarendon
Press, 1984) 69.
88
Compare Amartya Sen, supra note 9, emphasizing individual responsibility in
contrast to social command, p. 269: “[W]e also have to examine the part that can
be played by the development of social values and a sense of responsibility that
may reduce the need for forceful state action. For example, the development of
environmental ethics can do some of the job that is proposed to be done through
FRPSHOOLQJUHJXODWLRQµ$QGS´$Q\DIÀUPDWLRQRIVRFLDOUHVSRQVLELO-
ity that replaces individual responsibility cannot but be, to varying extents,
counterproductive. There is no substitute for individual responsibility.”
and responsibility, insistence on that immanence helps to expose

tyrants who exploit their peoples’ capacity for self-transcendence
with false appeals to responsibility, appeals that serve nothing other
than the maintenance of power and the suppression of freedom.89
An understanding of the intertwined linkage between responsibility
and right, and the possibility to experience the responsibility to care
for others and for nature also as a right, promise another important
EHQHÀWDOOWRRRIWHQRXUFDSDFLW\IRUFDUHLVKLQGHUHGE\EOLQGQHVV
towards the needs of others and blindness towards conditions that
should be alarming.90 As far as blindness may be steered by the
sub-conscious, it is fair to expect that we will ‘see’ more easily when
we do not fear that the consequence of our awareness will mean self-
denial but rather a chance for self-expression. While responsibility
GRHVQRWKDYHWRPHDQVHOIGHQLDOE\GHÀQLWLRQWKHIUHTXHQWQHJD-
WLYHDVVRFLDWLRQRIUHVSRQVLELOLW\ZLWKVWLÁLQJburden is a matter of
daily observation. In contrast, the conversion of the responsibility
to protect, care, or help into a human right helps to transform the
trepidation about shackles into the excitement of engagement. It will
89
Some of the thoughts expressed here might be helpful in alleviating concerns
about responsibilities as threats to human rights. Those concerns must be taken
seriously: efforts to articulate human responsibilities may easily be misguided if
they merely pursue ‘balance’ between rights and responsibilities. Instead such
efforts should from their inception take care to leave room for freedom within
responsibility. As far as human responsibilities are both inherent and personal
responsibilities, states should be less in the business of mandating than in the
business of making room for and safeguarding them. Projects to declare human
responsibilities are probably best approached with an understanding about the
close interlinkage and alignment with civil and political rights to information,
education, opinion, participation in decision-making, association and remedies.
– With regard to governmental concerns expressed prior to the Final Report of
the Special Rapporteur on Human Rights and Human Responsibilities, supra
note 67, see Michael J. Dennis, “Human Rights in 2002: The Annual Sessions of
the UN Commission on Human Rights and the Economic and Social Council”,
97 AJIL 364, 367. – Compare also Kenneth W. Hunter and Timothy C. Mack
eds., International Rights and Responsibilities for the Future (Westport: Praeger
Publishers, 1996).
90
Robert C. Fuller, Ecology of Care: An Interdisciplinary Analysis of the Self and
Moral Obligation (Louisville: Westminster/John Knox Press, 1992) p. 72
be easier to ‘see’.91:LWKUHJDUGWRWKHVSHFLÀFUHVSRQVLELOLW\WRSURWHFW
the environment, the recognition of a human right to care for nature
could not only extend the concept of environmental human rights
but heal them of anthropocentrism.92 The assertion of Principle 10
of the Rio Declaration93 and the exercise of corresponding civil and
political human rights receive added impetus from the simultaneous
contention of a human right to protect, care or help. Altogether, the
recognition of the latter human right supports the personal insistence
to live in response to the needs of others and of nature, an insistence
which in turn assists the international community in the protection
of non-material values.94
VIII. Priority and subsidiarity with regard to the

right to exercise responsibility
The possibility of the re-conceptualization of responsibility as right
does not mean an absolute priority for that right. As with all other
human rights, priority is or should be given to this human right in case
91
The well-known psychological observation that the incapacity to ‘see’ has its
deeper origin in the injuries of early childhood and the unresponsiveness of
the early caretaker does not mean we are stuck in the tragic perpetuation of
EOLQGQHVVDQGVROLWDU\FRQÀQHPHQW/DWHUH[SHULHQFHVRI¶LQWHUUHODWLRQVKLS·FDQ
heal, even if triggered quite mechanically.
92
Notably, the Draft Principles on Human Rights and the Environment, supra note
GRQRWFRQÀQHWKHULJKWWRDFWWRSURWHFWWKHHQYLURQPHQWH[SUHVVHGWKURXJK
civil and political rights to information, education, opinion, participation in
decision-making, association and remedies) to an anthropocentric approach. See
also Maria Adebowale, Chris Church, Beatrice Nduta Kairie, Boris Vasylkivsky
DQG<HOHQD 3DQLQD ´(QYLURQPHQW DQG +XPDQ 5LJKWV$ 1HZ$SSURDFK WR
Sustainable Development”, IIED Opinion (in preparation for the World Summit
on Sustainable Development) (London: International Institute for Environment
and Development 2002).
93
Supra note 43.
94
Ernst Von Weizsäcker, Amory B. Lovins, L. Hunter Lovins, Factor Four:
Doubling Wealth – Halving Resource Use: The New Report to the Club of Rome,
(London: Earthscan Publications 1997), see especially Ch. 14 “Nonmaterial
Wealth”, pp. 292-299.
RIFRQÁLFWZLWKPHUHLQWHUHVWVDQGOHVVHUULJKWVEXWQRWQHFHVVDULO\LQ
FDVHRIFRQÁLFWZLWKRWKHUKXPDQULJKWV:KLOHWKLVLVQRWWKHSODFH
WRJRLQWRGHWDLODERXWWKHSDUDPHWHUVIRUWKHUHVROXWLRQRIFRQÁLFWV
between human rights, special aspects with regard to the human right
at issue may be highlighted. Exactly because of the close attachment
of right and responsibility here, it can be assumed that the exercise
of the right is as much desired as the exercise of the intertwined
responsibility may be demanded. Especially if the exercise of the
responsibility is mandated not only by individual conscience but by
RWKHUV²QRWDEO\E\WKRVHLQQHHGE\WKRVHÀOOHGZLWKDZDUHQHVV
RUE\WKHLQWHUQDWLRQDOFRPPXQLW\DVDZKROH²FRQÁLFWVZLWKWKH
human rights of others have already in all likelihood been weighed
or resolved. Maybe more importantly, the application of the subsidi-
arity principle,95DQLPSRUWDQWJXLGHOLQHLQWKHUHVROXWLRQRIFRQÁLFW
between different levels of jurisdiction (including what might be
called the level of jurisdiction of the individual), is inherently sup-
ported by the right and responsibility to protect, care or help. After
all, the desire to extend true care should quite naturally entail the
desire to give priority to the human rights of the object of care and to
the rights and responsibilities to protect, care or help of those more
knowledgeable about the needs that must be addressed. If the act of
WUXHFDULQJHQWDLOVWKHHIIRUWWRÀQGWKHEHVWDSSURDFKHVLWDOVRHQWDLOV
DQHIIRUWWRJLYHSULRULW\WRDSSURDFKHVWKDWSURÀWIURPWKHJUHDWHU
insight and knowledge arising from closer proximity. Of course, the
willingness to ‘stand back’ does not exclude the willingness to ‘step
in as back-up’ whenever, wherever and however needed – quite the
opposite, the keen orientation towards the object of care, the respect
and compassion for the person in need and the appreciation and com-
SDVVLRQIRUQDWXUHDVVLVWLQÀQGLQJWKHPRVWDSSURSULDWHMXULVGLFWLRQDO
95
Basically, the subsidiarity principle – at work also in the multi-stakeholder
approach and rights of participation – gives priority to the locally closest
jurisdictional level with the proviso that the next higher level is engaged
whenever the more local one is either unwilling or unable to act or unable to
achieve the desired result alone. In our context see especially Paolo G. Carozza,
“Subsidiarity as a Structural Principle of International Human Rights Law”,
97 AJIL 38 (2003); Peter Singer, One World1HZ+DYHQDQG/RQGRQ<DOH
University Press 2002) 200.
interplay. At the same time, as will be shown further below, it cannot

EHRYHUORRNHGWKDWUHFRQFLOLDWLRQLQWKHFDVHRIFRQÁLFWVPLJKWEH
fostered even more strongly by the opposite reconceptualization, the
recognition of right as responsibility.
Before addressing the reverse depiction of the close interlinkage
of right and responsibility, it may be shortly added that the interplay
of ‘stand back’ and ‘step-in’ does not necessarily correlate with a
linear and purely hierarchical jurisdictional interplay aligned with
SUHÀ[HGORFDODQGQDWLRQDODOORFDWLRQVRISRZHU96 Instead, what has
been called a ‘community of communities’,97 variable according to
the context98 of caring, may be envisioned.
96
See for example Robert McCorquodale, “International Law, Boundaries and
Imagination”, in David Miller and Sohail H. Hashmi, eds, Boundaries and
Justice: Diverse Ethical Perspectives (Princeton and Oxford: Princeton Uni-
versity Press, 2001) 136, arguing for new ways to imagine the role of borders
and “to focus on relationships …”; Will Kymlicka, “Territorial Boundaries:
A Liberal Egalitarian Perspective”, in Boundaries, id., 249, 271: “There are
in fact extensive relations of interdependence and shared understandings of
justice across boundaries, and even if there weren’t, this still would not justify
a scheme of boundaries which condemns some people to abject poverty while
RWKHUVOLYHLQDIÁXHQFHµ&RPSDUHDOVR-RVHSK%R\OH´%RXQGDULHV2ZQHUVKLS
and Autonomy: A Natural Law Perspective”, in Boundaries, id., 296, 309 with
an orientation on responsibility across borders: “A foreign regime may refuse
the help outsiders seek to give, or it may make it impossible for the help to get
to those who need it. But the underlying obligation to help the needy one can
help remains binding on every person. … For, to emphasize the fundamental
moral point: The morally variable capacities of political societies to organize
to meet basic need do not cause variation in the basic moral principle, only in
the ways people are to respond to it.”
97
Herman Daly and John B. Cobb Jr., The Common Good: Redirecting the
Economy towards Community, the Environment and a Sustainable Future
(Boston: Beacon Press 1989) 381.
98
Paolo G. Carozza, supra note 95, 79: “Subsidiarity by its very terms refers to the
QHHGIRUFRQWH[WXDOIDFWVSHFLÀFGHFLVLRQV«6XEVLGLDULW\FDQQRWEHUHGXFHG
to a simple devolution of authority to more local levels. While it is clearly
expressing a presumption in favor of smaller and more local forms of human
association, it does seek to balance both the idea of noninterference and that
of intervention or assistance. It therefore requires serious consideration … that
more local authorities may sometimes be less capable of ensuring the protection
of human rights without external intervention of assistance.”
IX. Responsibility as right on the level of the state

Without going into detail here, it should be noted that the perception
of responsibility as right can also be instructive on the level of the
state.
If the idea of individual responsibility as right is supported by the
concept of human dignity, the linkage of state right and responsibility
arises directly from the concept of sovereignty and the capacity of
states to bind themselves.99 For example, the consent of states to their
treaty obligations implies that they are choosing them (assuming
that the treaty has not been concluded under pressure).100 It is no
coincidence when the preamble of a treaty refers to “concern”101 or
to a “desire”102 to act with regard to a particular problem. The close
relationship of state right and responsibility can be discerned as well
in Alfred Verdross’ profound observation: “A treaty is void if the
restriction of liberty imposed on a state goes so far that it is impossible
for it to accomplish its international duties. All states, it is true, can
99
&RPSDUH/RXLV%6RKQ´8QUDWLÀHG7UHDWLHVDVD6RXUFHRI&XVWRPDU\,QWHUQD-
tional Law”, in Adriaan Bos and H. Siblesz eds, Realism In Law-making: Essays
on International Law in Honour of W. Riphagen (Dordrecht/Boston/Lancaster:
Martinus Nijhoff Publishers, 1986) 231, 245, arguing that the strength and degree
of consensus are even more important than the formalities: “What is relevant
is the fact that one can observe here the primordial creative force at work. It is
generally recognized that international law has only one source – the common
will of States. A new rule is created by its general acceptance by all the States
concerned. The States themselves are the masters of the method by which they
agree to express their common will.”
100
Reluctance against being bound by a treaty is often less due to disapproval of the
treaty obligation as such but due to concern that outsiders would gain advantage
as ‘free riders’. At the same time, concern about the free rider problem may
lead to a preference for treaties over unilateral action.
101
8QLWHG 1DWLRQV )UDPHZRUN &RQYHQWLRQ RQ &OLPDWH &KDQJH 1HZ<RUN
May 1992, in force 21 March 1994, 31 ILM 849 (1992), preambular para.
2: “Concerned that human activities have been substantially increasing the
atmospheric concentrations of greenhouse gases …”
102
Convention on Biological Diversity, Rio de Janeiro 5 June 1992, in force 29
December 1993, 31 ILM 822 (1992), preambular paragraph 22: “Desiring to
enhance and complement existing international arrangements for the conversa-
tion of biological diversity …”
in principle renounce their rights. But there is one exception, for a

VWDWHFDQQRWZDLYHWKHULJKWVQHFHVVDU\IRULWWRIXOÀOLQWHUQDWLRQDO
[jus cogens] obligations.”103
Why does the possibility to recognize responsibility as right matter
on the level of the state? The legitimacy of states is increasingly argued
WRGHSHQGRQWKHIXOÀOPHQWRIVWDWHUHVSRQVLELOLWLHVWRZDUGVKXPDQ
ULJKWVDQGDUHDVLQVLGHDQGRXWVLGHVWDWHERUGHUV<HWVWDWHVDUHRIWHQ
wary of acknowledging their responsibilities, fearing corresponding
demands and foreign interference. Again much is gained when the
exercise of sovereign responsibility is also recognized as sovereign
right. The ‘how’ of implementation104 is more easily embraced as
an expression of the culture of the country, as a reason for pride in
ingenuous solutions and as an opportunity to join forces.
X. Right as responsibility
The invitation to try to perceive the responsibility of caring as right
does not mean that the option to take the opposite step should be
neglected. As alluded to above, the possibility of congruence between
right and responsibility also implies that the right to protect, care and
help can be also approached as responsibility.
The most well-known conceptual revisualization in this man-
ner was undertaken in 2001 by the International Commission on
Intervention and State Sovereignty (sponsored by Canada) when it
DGGUHVVHGWKHGLIÀFXOWWRSLFRIKXPDQLWDULDQLQWHUYHQWLRQDQGVSRNH
of the need to move from a right to intervene to a responsibility to
103
Alfred Verdross, “Jus Dispositivum and Jus Cogens in International Law”, 60
AJIL (1965) 55, 59.
104
Johan G. Lammers, “Balancing the Equities in International Environmental Law”,
in R.-J. Dupuy ed., The Future of the International Law of the Environment,
Workshop, The Hague 12-14 November 1984 (Dordrecht/Boston/Lancaster:
Martinus Nijhoff Publishers, 1985) 153, 157: “Provided the State lives up to
its duty to observe due care, freedom of choice of means to prevent or abate
inadmissible transfrontier pollution is enjoyed under international law.”
protect.105 Subsequently, the UN Secretary-General’s High-level Panel

on Threats, Challenges and Change106 endorsed “the emerging norm
that there is a collective international responsibility to protect”.107 In
his recent report108LQSUHSDUDWLRQIRUWKHÀYH\HDUUHYLHZRISURJUHVV
since the Millennium Summit, the Secretary-General supported
the concept, emphasizing non-military means and referring to the
authority of the Security Council and the requirements of necessity
and proportionality in the case of military interventions to prevent
genocide and massive human rights violations.109 He also underlined
the primary responsibility of the state to protect its population. The
responsibility of the international community was only engaged
when the state was unable or unwilling to act in accordance with its
responsibility.110
105
International Commission on Intervention and State Sovereignty, The Re-
sponsibility To Protect (Ottawa: International Development Research Center
2001), available at <http://www.iciss-ciise.gc.ca>, directly at <http://www.
dfait-maeci.gc.ca/iciss-ciise/report-en.asp>. The report is also available as
81 'RF$ 7KH UHVSRQVLELOLW\ WR SURWHFW LQFOXGHV KHUH VSHFLÀFDOO\
the responsibility to prevent (Ch. 3), to react (Ch. 4) and to rebuild (Ch. 5).
– See also the Background Research for this Report available at <http://www.
dfait-maeci.gc.ca/iciss-ciise/research-en.asp>, especially Ch. 6 “Rights and
Responsibilities”.
106
A more secure world: our shared responsibility, Report of the High-level Panel
on Threats, Challenges and Change (United Nations: 2004), also in UN General
Assembly, 59th Session, Note by the Secretary-General, UN Doc. A/59/565, p.
8 (See also UN Doc.A/59/565/Corr.1)
107
Id. para. 202, 203.
108
UN General Assembly, Fifty-Ninth Session, In Larger Freedom: Towards
Development, Security and Human Rights for All, Report of the Secretary-
General, UN Doc. A/59/2005
109
Id. para. 134, 135, and Annex, para. 7b)
110
Id. para. 135. This paper has concentrated primarily on non-military means
to advance sustainable development and human rights, and on the possible
fusion and interchangeability of responsibility and right, it cannot go into
depth with regard to military interventions and the parameters for the exercise
of the responsibility to protect. But in light of the fear that an increased ac-
ceptance of the responsibility to protect could amount to the introduction of a
QHZMXVWLÀFDWLRQIRUDJJUHVVLRQLWLVLPSRUWDQWWRXQGHUOLQHWKHQHHGIRUÀUP
pre-conditions as set out by the Secretary-General before the exercise of the
The International Commission on Intervention and State Sover-

eignty had explained its choice of terminology by stating: “Changing
the language of the debate, while it can remove a barrier to effective
action, does not, of course, change the substantive issues which
have to be addressed. … But if people are prepared to look at these
issues from the new perspective that we propose, it may just make
ÀQGLQJDJUHHGDQVZHUVWKDWPXFKHDVLHUµ111 Positive and negative
associations can be at play with regard to both terms, right and
responsibility. Right may not only be associated with engagement but
with unlimited entitlement, responsibility may not only be associated
with burden but with conscientious consideration.
Thinking in terms of responsibility rather than right can help to
prevent meddling, undue interference, self-righteousness and the
imposition of unsuitable ‘helpful’ policies. This is as much true for
the pursuit of sustainable development as for military intervention.112
If arrogance does not blur the view, the interests and needs of the
person or state to be protected or assisted become more easily the
focal point of evaluation.113 In line with the subsidiarity principle, the
priority of the rights and responsibilities of the jurisdiction with the
closest proximity tend to be more naturally respected. Assistance may
correspond better with the actual requirement. The recipient of care
may feel more reassured that self-interest in the narrow sense does
not distort the assistance. Importantly, the attitude of consideration
UHVSRQVLELOLW\WRSURWHFWZRXOGH[WHQGWRWKHXVHRIIRUFH6LJQLÀFDQWO\WRR
the timely non-military exercise of the responsibility to protect can do much
to prevent the type of humanitarian emergencies which might justify military
interventions.
111
Supra note 105, p. 12
112
See also Robert Archer, “Human Rights and Global Social Equitability”,
presented at the International Policy Dialogue: Human Rights in Developing
Countries, supra note 31, p. 3; International Council on Human Rights Policy,
Duties sans Frontières – Human Rights and Global Social Justice, Geneva 2003,
available at <http://www.ichrp.org>.
113
International Commission on Intervention and State Sovereignty, supra note
105, p. 17: “…[T]he responsibility to protect implies an evaluation of the issues
from the point of view of those seeking or needing support, rather than those
who may be considering intervention.”
and modesty may more effortlessly leave room for the expression
of diversity so essential for human rights.114 After all, the full inter-
pretation and implementation of human rights can only be gained
with an eye to the uniqueness of each person and the uniqueness of
the culture enjoyed by that person.115 At the same time, the sense of
responsibility can also encourage outreach to others who may share
LQWKHWDVNOHDGLQJWRUHÀQHGVWUDWHJ\DQGPXOWLSOLHGLPSDFW
These observations about the advantages of re-visualizing right as
responsibility are not meant to imply that the earlier described right
to protect, care or help is necessarily bound to serve self-interest in
WKHQDUURZ¶VHOÀVK·VHQVH,WLVZURQJWRDVVXPHWKDWWKRVHZKRFDUH
are implicitly driven as much by efforts to end their own empathetic
suffering as by efforts to end the suffering of ‘the other’. The mother
in the Quinteros case cited above116 would most likely have preferred
the continuation of her own suffering if this were the price for the
rescue of her daughter. Thus, the observations about the advantages
of seeing right as responsibility are instead intended to indicate ways
to balance negative aspects of presumptuousness that could but do
not have to affect the perception of right.
114
Paolo G. Carozza, supra note 95, at p. 78: “[Subsidiarity] respects the inherent
problems of unifying law and the value of diversity in legal norms while mitigat-
ing the risk that a global rule of law will impose uniformity at the expense of
the diversity of human cultures. … [A]n understanding of human rights and
international law that takes subsidiarity seriously into account would actually
strengthen human rights in theory and practice. Subsidiarity offers a contrast to
prevailing patterns of understanding the place of human rights in the international
order, which are based largely on more limited conceptions of sovereignty. It
values the freedom and integrity of local culture without reducing particularism
WRSXUHGHYROXWLRQDQGGHFHQWUDOL]DWLRQRIDXWKRULW\LWDIÀUPVLQWHUQDWLRQDOLVP
and intervention without the temptation for a super-state or other centralized
global authority.”
115
For example, the right to education is universal but what it fully entails individu-
ally, in order to foster the unfolding of the human personality and the desire for
knowledge, may differ from culture to culture and person to person. See also
supra.
116
Supra note 69.
XI. Responsibility as right or right as responsibility?

The usefulness of both types of re-visualization
It may be asked, what is then better to see responsibility as right or
right as responsibility? As will be shown below, the preference for
one process of re-conceptualization over the other depends on the
context of prevailing motivations and psychological associations in
the task of caring.
The arguments for seeing responsibility as right or right as
responsibility highlight what is most missing from awareness about
the need for integrative approaches in sustainable development and
human rights implementation. Too often right and responsibility are
merely depicted as opposites, and yet without the understanding
that right and responsibility are closely intertwined – to the point of
possible interchangeability and merger – we miss out on the recogni-
tion that freedom and caring can be one. We are like birds that have
not discovered their wings. No wonder that the “relevance of our
shared humanity”117 is rationalized into irrelevance. No wonder that
the international community remains hesitant and clumsy trying to
translate its partially blocked awareness into action.
At the beginning the point was made that the ‘operationalization’
of awareness may have to start in the mind. The mental ‘operation-
alization’ of awareness extending to the interlinkage of right and
responsibility is easy to describe. The tool is both simple and
challenging: whenever a responsibility towards others and towards
nature is seen as burden and limitation, an examination might be in
RUGHUWRÀQGRXWLIDGLIIHUHQWYLVLRQFRXOGEHSRVVLEOHPRELOL]LQJ
the energizing potential of a right to protect and care. Whenever the
notion of having a right might induce a person or a state to make
one-sided pronouncements or demands, an attempt to employ instead
the concept of responsibility should be tried, possibly leading to ap-
proaches more fruitful for mutual understanding. In other words, the
tool uses the positive associations of one concept to compensate and
surpass the negative associations of the other one. The switch can be
done back and forth, strengthening not only the understanding about
117
Supra note 9.
the interlinkage of right and responsibility in the process of caring,

but helping also in the recurring choice between unilateral and multi-
ODWHUDOVWDWHDFWLRQDQGLQWKHÀQGLQJRIÀQHWXQHGVROXWLRQV118
7KHÁHHWLQJLUULWDWLRQZKLFKPD\DULVHDWHDFKWDVNWRUHRULHQWWKH
mind throws sand into the intra-generational and inter-generational
perpetuum mobile of narcissism, permitting the urgent step out of
entrapment. There are wings to unfold.119
118
Compare Richard B. Bilder, “The Role of Unilateral State Action in Preventing
International Environmental Injury”, 14 Vanderbilt Journal of Transnational
Law 51 (1981). For the advantages of unilateral action (promptness, precedent
VHWWLQJJDLQRIH[SHULHQFHEHQHÀFLDOLPSDFWHVSHFLDOO\LI¶QRUPDO·LPSDFWRI
state is large, promotion of the development of international agreement, evolu-
tion of customary law) see pp. 79-83, for the disadvantages (discouragement
of growth in international order based on accommodation, cooperation and
ODZWHQVLRQDQGFRQÁLFWOLPLWHGHIÀFLHQF\DQGHIIHFWLYHQHVVGLVSURSRUWLRQDWH
negative effects on trade especially if unilateral requirements vary) see pp.
83-86, for policies and criteria to curtail the disadvantages pp. 86-90.
119
Philip Allott, supra note 79, at p. 25: “It is inevitable, biologically if not
historically, that there will be an end to a world in which mass murder and the
mass degradation of human beings are treated as the natural products of public
policy. Great political change begins and ends in the mind, in feelings and in
ideas.”
Chapter 5
THE UN SECURITY COUNCIL’S

COUNTER-TERRORISM EFFORTS
Eric Rosand*
In the aftermath of the attacks of 11 September 2001 and subsequent

acts of terrorism across the globe, from Morocco to Turkey, Russia
to Saudi Arabia, and Spain to the Philippines, the world turned its
focus to counter-terrorism and various measures were initiated at all
levels and in all areas. The United Nations Security Council was no
exception and has taken the necessary measures to counter terrorism.
This article will provide an overview of the different counter-terrorism
programs adopted by the Security Council, highlight what the author
sees to be the substantive overlap between and among the different
initiatives, and then conclude with some suggestions on how both
the UN and the global institutional counter-terrorism effort might
be improved.
The Security Council, because of it primary responsibility within
the UN system for maintaining international peace and security and
its ability to impose obligations on all 191 UN Member States, was
expected to play a leading and unique role in the global effort to
combat terrorism. These attributes pointed to the Council as offering
WKH TXLFNHVW URXWH IRU JOREDOL]LQJ WKH ÀJKW DJDLQVW WHUURULVP7KH
* Deputy Legal Counselor, United States Mission to the United Nations, New
<RUN7KHYLHZVDQGRSLQLRQVH[SUHVVHGDUHWKRVHRIWKHDXWKRUDQGGRQRW
necessarily represent those of the United States Mission or the Department of
State.
Security Council’s strategy to combat terrorism can be divided into

four prongs: condemnation of discrete acts of terrorism, imposition of
binding counter-terrorism obligations on all states, capacity-building,
and imposition of sanctions.
$V IRU WKH ÀUVW SURQJ DOWKRXJK WKH &RXQFLO KDG DGRSWHG D IHZ
resolutions condemning discrete acts of terrorism before 9/11, with
Resolution 1368 on 12 September 2001, the Council began the
general practice of adopting resolutions or presidential statements
following most major terrorist attacks. These resolutions and state-
ments are political condemnations, urging all states to cooperate in
bringing to justice those behind the particular attack; however, they
have no legal effect. Most recently, in the aftermath of the events in
Beslan, Russia, the Council, in Resolution 1566, issued its strongest
condemnation to date of indiscriminate attacks targeting civilians,
regardless of motivation, and called upon states to prevent and punish
such attacks. Many, including the Secretary-General’s High-Level
Panel on Threats, Challenges and Change mistook this language
IRU D GHÀQLWLRQ RI WHUURULVP VRPHWKLQJ WKDW LW LV QRW DQG ZDV QRW
intended to be.
Resolution 1373, which imposed a series of counter-terrorism
obligations on all Member States, lies at the heart of the Council’s
second counter-terrorism prong. This Resolution also established the
Counter-Terrorism Committee (CTC) to monitor states’ implementa-
tion of their obligations. By requiring all states to take certain steps
to combat terrorism, it created uniform global obligations, thus going
beyond the existing counter-terrorism treaties, which bind only those
that have voluntarily become parties to them. Resolution 1373 requires
all states, among other things, to freeze terrorists’ assets, criminalize
WKH ÀQDQFLQJ RI WHUURULVP EULQJ WHUURULVWV WR MXVWLFH UHIUDLQ IURP
providing support to terrorists, prohibit active or passive assistance
to terrorists, and ensure that all terrorist acts are established as serious
FULPLQDORIIHQFHVLQGRPHVWLFODZ6LJQLÀFDQWO\WKH5HVROXWLRQLV
OLPLWHGLQWKDWLWGRHVQRWDWWHPSWWRGHÀQHWHUURULVPQRUWRLGHQWLI\
VSHFLÀFWHUURULVWV,WVVSRQVRUVZDQWHGLWWRSDVVTXLFNO\DQGWKRXJKW
WKDW HQJDJLQJ LQ GHÀQLWLRQDO GHEDWH LH DUH ÍUHHGRP ÀJKWHUVµ
terrorists?), similar to the one that has bogged down the General
5. The UN Security Council’s Counter-Terrorism Efforts 75
Assembly for more than 30 years, would complicate negotiations.

7KH5HVROXWLRQWKXVDOORZVHDFKVWDWHWRGHÀQHWHUURULVPXQGHULWV
domestic system.
Following the precedent of Resolution 1373, in April 2004, the
Council adopted Resolution 1540 to address the threat of weapons of
mass destruction (WMD) and their means of delivery into the hands of
non-state actors, including terrorists and terrorist -groups. It requires
all states to take a series of legislative and regulatory steps to prevent
the proliferation of WMD. It also established a committee with an
initial mandate of two years to monitor states’ efforts to implement
the Resolution. The Committee has got off to a slow start, due largely
to its composition during 2004. Its current (i.e., 2005) composition,
however, has allowed it to proceed more quickly. The Committee
has hired a handful of independent experts to begin to review the
state reports that were called for by Resolution 1540 and expects to
KLUHIRXUPRUHE\0D\6LJQLÀFDQWO\RQO\VOLJKWO\PRUHWKDQ
half of UN Member States have sent in a report, which was due on
28 October 2004.
The Council’s adoption of both Resolutions 1373 and 1540 has
been questioned and criticized by some commentators and govern-
ments as falling outside the Security Council’s mandate. The Council,
they argue, was not intended to act as a “global legislator”. They
fear that such action could disrupt the balance of power between the
Council and the General Assembly as set forth in the UN Charter.
Moreover, they assert that having the Council, a 15-member body
not accountable to the other UN organs, impose obligations on all
191 Members, threatens to weaken one of the cornerstones of the
traditional international law structure, namely, the principle that
international law is based on the consent of states. Others, however,
argue that the UN Charter has evolved to allow the Council to act as
a “global legislator” under certain circumstances and that the Council
needs to be able to use this tool to address effectively, within the
state-centred UN Charter system in which it operates, the threats
posed by non-state terrorists and terrorist groups.
The third prong of the Council’s counter-terrorism program – that

of capacity-building – is represented by the CTC, and now also
the 1540 (or Non-Proliferation) Committee. In its more than three

years of work, through its capacity-building and global coordination
LQLWLDWLYHVWKH&7&KDVVRXJKWWREHFRPHDVLJQLÀFDQWHOHPHQWRI
the worldwide campaign against terrorism. It has sought to energize
states and organizations around the world to pay more attention to
combating terrorism, whether through the adoption of new or the
LPSURYHPHQWRIH[LVWLQJFRXQWHUWHUURULVPOHJLVODWLRQWKHUDWLÀFDWLRQ
of the 12 international conventions and protocols related to terrorism,
or the development and implementation of counter-terrorism action
plans. For example, since the CTC’s establishment, the number of
States Parties to all 12 international counter-terrorism instruments
has grown from two to more than sixty. While bilateral pressure and
prodding from other organizations has helped fuel this increase, the
&7&KDVKDGVRPHLQÁXHQFHKHUH
Based on the more than 550 reports it has received from states
detailing their efforts to implement their obligations under Resolu-
WLRQWKH&7&LVFRQGXFWLQJWKHÀUVWZRUOGZLGHDXGLWRIVWDWHV·
counter-terrorism capabilities, laying the groundwork for effective
capacity-building. It has been a catalyst for more than 60 interna-
tional, regional, and sub-regional organizations to become active in
combating terrorism. Finally, it has sought to assume a central role
in the facilitation of technical assistance to states, trying to serve as
a switch-board for donors and interested states.
Some two years into its work, it became clear that the CTC had
reached its limits as it was then organized. The ad hoc support
structure of some eight independent experts, hired on short-term
contracts, and without a leader, had its limitations. These became
more apparent as the CTC’s mandate expanded into areas of technical
assistance and working with scores of other organizations. While the
CTC had been able to assemble a large body of data based on the
country reports, it did not have the means to verify the information
independently and to assess “ground truth,” that is on-the-ground
implementation of the resolution.
On 26 March 2004, after months of deliberation, the Council
decided to restructure the CTC to try to make it more effective. With
the adoption of Resolution 1535, the Council decided to transform
the ad hoc staff into a larger, more permanent, and more professional
body (the Counter-Terrorism Executive Directorate or CTED). After

lengthy delays due principally to the UN budget and personnel proc-
esses, the CTED is expected to become fully operational very soon,
more than a year after its establishment and almost two years from
when the US and UK conceived of the idea. It should allow the CTC
to assess states’ on-the-ground efforts to implement Resolution 1373
through site visits, and to recommend remedial action to the Council
ZKHUHQHFHVVDU\,QIDFWWKH&7&&7('FRQGXFWHGLWVÀUVWYLVLWLQ
March 2005 to Morocco and is scheduled to visit Kenya, Albania,
and Thailand later in 2005.
:KLOHWKH&7&KDVKDGVRPHVXFFHVVLWKDVKDGGLIÀFXOW\PRY-
ing beyond the paper exercise of receiving and responding to state
UHSRUWV,QIDFWLWKDVKDGGLIÀFXOW\DQDO\]LQJDQGUHVSRQGLQJLQD
timely fashion to the often lengthy country reports it has received.
In addition, the 15-member CTC, which currently meets weekly and
operates by consensus, rather than focusing on concrete problems or
case studies, has become bogged down in negotiating process-oriented
papers, arguing over commas and periods. It remains to be seen
ZKHWKHUWKH&7('ZLOOHQDEOHWKH&7&WRIXOÀOLWVEURDGPDQGDWH
more effectively and show the UN community that it is not just a
paper-processing machine.
Even a fully staffed CTED will only be able to conduct one or two
ÀHOGYLVLWVSHUPRQWK0RUHRYHULWLVE\QRPHDQVFOHDUWKDWRWKHU
parts of the UN system, let alone those organizations outside the UN,
will allow the CTC/CTED to assume a lead role in capacity-building
and facilitating technical assistance. Already, the IMF has baulked at
an invitation to join the CTC/CTED on visits to UN Member States,
asserting that it wanted to continue to conduct its own visits. The
IMF expressed concern about having its narrow technical mandate be
confused with the CTC/CTED’s politically focused counter-terrorism
mandate that derives from Chapter VII of the UN Charter.
$VLJQLÀFDQWFKDOOHQJHIRUWKH&7&DVLWFRQWLQXHVZLWKLWVZRUN
is to move beyond its focus on capacity-building and agree on which
states are failing to meet their obligations under Resolution 1373 and
report such states to the Council for appropriate action. A prerequisite
will be to reach agreement on a set of common standards against
which to measure states’ performance. Since 9/11, a number of inter-
governmental bodies have adopted recommendations or guidelines

IRUVWDWHVWRIROORZLQDVSHFLÀFFRXQWHUWHUURULVPÀHOGRIWHQEXLOGLQJ
upon the provisions in Resolution 1373. For example, the Financial
Action Task Force has adopted its “nine special recommendations”
LQ WKH ÀHOG RI WHUURULVW ÀQDQFLQJ WKH ,QWHUQDWLRQDO &LYLO$YLDWLRQ
Organization has adopted airline and airport security guidelines,
and the World Customs Organization has adopted a set of standards
related to port security. The Council could adopt a resolution or a
presidential statement that formally endorses these guidelines and
best practices, which could eventually serve as the formal standards
by which all states would be measured. The Council is in fact moving
in this direction. In the absence of such Security Council guidelines,
LW ZLOO EH GLIÀFXOW WR IRU WKH &7& RU DQ\ RI WKH 6HFXULW\ &RXQFLO
counter-terrorism bodies to decide which states are failing to comply
with the relevant Security Council-imposed obligations.
(YHQZLWKDQDJUHHGVHWRIVWDQGDUGVKRZHYHUWKH&7&PD\ÀQG
LWGLIÀFXOWWRUHDFKDJUHHPHQWRQZKLFKFDWHJRULHVRIVWDWHVVKRXOG
be reported to the Council. For example, should all those who fail to
meet the standards regardless of whether they are seeking technical
assistance be reported, or only those who fail to meet the standards
and reject help.
7KHIRXUWKDQGÀQDOSDUWRIWKH&RXQFLO·VFRXQWHUWHUURULVPVWUDWHJ\
involves the imposition of sanctions. Through a series of Resolutions,
most recently Resolution 1526 (30 January 2004), the Council has
imposed global sanctions against Osama bin Laden, the Taliban,
Al-Qaeda and their associates. These sanctions require all states to
freeze the assets of, and impose a travel ban and arms embargo on,
individuals and entities listed as having ties to the Taliban, Osama
bin Laden, Al-Qaeda or their associates. The list is managed and
updated by a Security Council committee that was established in
part to monitor states’ efforts to implement the sanctions. Today,
there are some 400 names on the list, the vast majority of which
were submitted by the United States, either alone or in conjunction
with other UN Members. Although there are a variety of problems
with the process for adding and removing names from the list, it still
VHUYHVDVWKHSULPDU\YHKLFOHE\ZKLFKWKH8QLWHG6WDWHVLGHQWLÀHV
suspected Al-Qaeda and Taliban members and empowers states to

freeze their assets.
Resolution 1526 established an eight-member Analytical Support
and Sanctions Monitoring Team to “collate, assess, monitor, and
report on” steps being taken to implement and enforce the sanction
measures against those on the consolidated list and to recommend
new measures to address the evolving Al-Qaeda threat. This team
replaced the old Monitoring Team, whose mandate was allowed
to expire in January 2004 after some two years of much maligned
work. The criticisms of the old team included a tendency to be too
independent, not always heeding the wishes of its parent Committee,
as well as sloppy reporting, and overstepping its narrow mandate.
The work of the new Team, whose mandate expires on 30 July 2005,
UHSUHVHQWVDVLJQLÀFDQWLPSURYHPHQW$WWKDWWLPHWKH&RXQFLOZLOO
need to decide whether to extend this mandate.
With respect to the effectiveness of the sanctions themselves, the

record is mixed. The travel ban and arms embargo have produced few
tangible results and have been shown to have little value beyond the
political statement that states cannot allow Al-Qaeda, the Taliban, or
associated group members to transit through their territory or to gain
access to arms. Both the High-Level Panel Report and the Secretary-
General have indicated that more must be done to ensure that these
and other UN sanctions are fully enforced. The United States does not
appear to devote much attention to these components of the sanctions
UHJLPH SHUKDSV UHFRJQL]LQJ KRZ GLIÀFXOW WKH\ DUH WR LPSOHPHQW
on a global basis. The requirement to freeze assets, however, has
proved to be more valuable. Because members of Al-Qaeda and its
supporters are unlikely to park their wealth in the United States and
WKH8QLWHG6WDWHVFDQQRWEORFNWHUURULVWDFFRXQWVLQIRUHLJQÀQDQFLDO
institutions, foreign governments must be persuaded to act. The
list has led foreign governments to take action in situations where
pressure from the United States was unlikely to have worked. So far,
international freezing actions have netted some USD 200 million
in assets of persons and entities with ties to terrorist networks, and
LQPDQ\FDVHVWR$O4DHGD$OWKRXJKLWLVGLIÀFXOWWRTXDQWLI\KRZ
much of this can be attributed to having the UN requirement to freeze
assets, the Security Council resolutions have formed the legal basis
for freezing terrorist assets on a global basis.
Looking ahead, the Al-Qaeda Committee needs to continue to
ÀQGZD\VWRLQFUHDVHWKHOHYHORIFRRSHUDWLRQLWUHFHLYHVIURPVWDWHV
in terms of both reporting to the Committee (almost one-third of
UN Member States have still not submitted the reports the Security
Council called upon them to submit to the Committee and many of
WKRVHWKDWGLGUHVSRQGIDLOHGWRLQFOXGHVXIÀFLHQWGHWDLOWRSHUPLWD
thorough assessment of their sanctions regimes) and implementation
of the sanctions themselves. Both the old and new Monitoring Teams
KDYHUHFRPPHQGHGWKDWWKH&RXQFLOUHÀQHDQGWRXJKHQWKHPHDVXUHV
and urged the Council to put more pressure on states to cooperate
fully with the committee. Toward the end of July 2005, the Council
is likely to adopt a new Al-Qaeda/Taliban sanctions resolution, which
would include any improved measures.
Imposing additional measures or toughening the existing ones,
however, is not likely to produce greater compliance. In many
instances, lack of capacity rather than lack of will is causing the
low level of cooperation with the Committee and implementation
of the sanctions. Both the Committee and its Monitoring Team have
highlighted the importance of technical assistance in their recent
reports.
The longer non-compliance is allowed to continue, the less
threatened states will feel, and the more empowered they will feel to
persist in not implementing the measures without suffering repercus-
sions. Allowing this pattern to continue risks weakening not only the
Council’s sanctions regime, but the credibility and authority of the
Council itself.
Despite the operation of the Al-Qaeda/Taliban Committee as a sanc-

tions committee and the CTC as a capacity-building one, there is a
growing overlap between the two and thus their two staff bodies.
The sanctions imposed against the Taliban, Al-Qaeda, Osama bin
Laden, and their supporters constitute a subset of the measures states
are obligated to take under Resolution 1373. Thus, the CTC’s efforts
to raise the capacity to implement Resolution 1373 will necessarily
increase the ability to implement the sanctions against those on the
FRQVROLGDWHGOLVW0RUHRYHUDQ\DQDO\VLVUHODWHGWRWKHGLIÀFXOWLHVRI
states in implementing the Al-Qaeda/Taliban sanctions regime may
not only be relevant to, but duplicative of, analysis related to the
GLIÀFXOWLHVRIVWDWHVLQLPSOHPHQWLQJWKHLUREOLJDWLRQVXQGHU5HVROX-
WLRQ7KLVSDUDOOHOLVPLVPRVWDSSDUHQWLQWKHWHUURULVWÀQDQFLQJ
context, where the Monitoring Team (both old and new) and the CTC
experts (now the CTED) have reached many of the same conclusions
not only as to the nature of the gaps in states’ capacity to implement
WKHUHOHYDQWREOLJDWLRQVEXWDOVRZKDWLVQHHGHGWRÀOOWKHP
Security Council Members are becoming increasingly aware of
the substantive overlap between these two Committees and their staff
bodies and the need to ensure full cooperation and coordination so
as to minimize the duplication of efforts and maximize the limited
UN resources available to address the terrorist threat.
Rather than focusing on how to improve the existing Security
Council counter-terrorism programs, however, the Security Council
established yet another counter-terrorism body; this one creatively
called the 1566 Working Group, named after its founding Resolution.
This new body, which is chaired by the Philippines, is considering
what types of sanctions might be imposed upon individuals, groups
or entities involved in or associated with terrorist activities, other
than those on the Al-Qaeda/Taliban consolidated list. In essence,
the group will be discussing whether to expand the application of
counter-terrorism sanctions beyond Al-Qaeda and the Taliban. In
addition, it will be looking at possible mechanisms for providing
compensation to victims of terrorism.
As this brief overview indicates, since 9/11, we have seen the pro-
liferation of UN Security Council counter-terrorism programs and
LQLWLDWLYHV,QVXIÀFLHQWDWWHQWLRQKRZHYHUKDVEHHQSDLGWRDGGUHVV
the substantive overlap between and among them. Rather than elimi-
nating or at least minimizing the stove-piping, the situation appears
to be getting worse. The underlying problems of having different
staff bodies, each with a different head, overlapping mandates, and
unaccountable to each other will need to be addressed.
The consolidation of the different staff bodies into a single unit,
perhaps an expanded Counter-Terrorism Executive Directorate, would
certainly enhance the UN’s counter-terrorism efforts. In the end,

however, this may not be enough to enable the UN Security Council,
largely through its Counter-Terrorism Committee, to effectively
play the coordinating role among states and organizations engaged
in counter-terrorism capacity-building and to monitor states’ efforts
to implement the counter-terrorism obligations imposed by Security
Council resolutions or international treaties. The enormity of this
task – combined with the political, administrative, and budgetary
challenges faced by operating within the UN – make it unlikely,
however, that the Council will be able to succeed in the long run.
For one, the 15-member Council may lack the broad representation
to enable it to maintain its international support. In addition, even
with a consolidation of the existing counter-terrorism expert bodies
into a single unit, there would only be a team of some 40 experts,
which is still considerably fewer than what will likely be needed to
IXOÀOWKH&RXQFLO·VEURDGFRXQWHUWHUURULVPPDQGDWH0RUHRYHUWKH
funding for all of the UN’s counter-terrorism programs comes from
the regular UN budget. Thus, this competes with other important UN
programs for limited resource. As time passes and the events of 9/11
or other major terrorist attacks further recede into memory, there is a
risk that the these programs will no longer have the funding priority
WKDWWKH\KDYHWRGD\DQGPD\ÀQGWKHPVHOYHVORVLQJRXWWRZKDWDUH
perceived as “higher” priorities within the UN system, such as the
ÀJKWDJDLQVWKXQJHUSRYHUW\DQG+,9$,'6
Monitoring the implementation of states’ counter-terrorism
obligations requires an enduring and unwavering commitment, since
it may take some states decades to develop an infrastructure capable
of complying fully with them. Given the long-term and complex
nature of the task, and the limitations imposed upon the Council’s
counter-terrorism bodies in their current form, serious consideration
should be given to the creation of a permanent international counter-
terrorism organization. Such a global body could subsume the UN’s
various programs, as well as some programs being undertaken by
other international bodies.
Despite the global threat that terrorism continues to pose and the
growing counter-terrorism activity worldwide, counter-terrorism
remains one of the few global issues that does not have an inter-
national body dedicated to addressing it. Refugees, human rights,

atomic energy, police, customs, civil aviation, maritime, chemical
weapons, children, development, food and the environment are just
some of the global issues that have a UN specialized agency or a
global organization outside of the UN system devoted to them. The
time is now ripe for undertaking a comprehensive study regarding
the feasibility of creating one for counter-terrorism, and possible
avenues for doing so.
Chapter 6
REFLECTIONS ON THE SECURITY

COUNCIL’S COUNTER-TERRORISM
RESOLUTIONS
Giuseppe Nesi*
,QWKHODVWÀIWHHQ\HDUVWKH6HFXULW\&RXQFLOKDVFKDQJHGLWV modus
operandi LQVLJQLÀFDQWZD\V2QHRIWKHPRUHUHPDUNDEOHGHYHORS-
ments relates to the adoption of an increasing number of “enforceable”
resolutions under Chapter VII of the United Nations Charter. Those
resolutions concerning the struggle against terrorism in particular
imply both a greater intrusiveness of Security Council decisions into
domestic legal systems and an erosion of the national sovereignty of
Member States.
The implementation of the anti-terrorism resolutions adopted
E\WKH6HFXULW\&RXQFLOLQWKHODVWÀYH\HDUVXQGHU&KDSWHU9,,LV
having a strong impact on UN Member States at the national level.
Two cases in point are Security Council Resolutions 1267 (1999)
and 1373 (2001), which required states to adopt laws and regulations
to implement the prescriptions set forth in those resolutions. For
instance, paragraph 4 of Resolution 1267, declares that
“all States shall:
(a) Deny permission for any aircraft to take off from or
land in their territory if it is owned, leased or operated by
/HJDO&RXQVHO3HUPDQHQW0LVVLRQRI,WDO\WRWKH811HZ<RUN
or on behalf of the Taliban as designated by the Committee

HVWDEOLVKHGE\SDUDJUDSKEHORZXQOHVVWKHSDUWLFXODUÁLJKW
has been approved in advance by the Committee on the
grounds of humanitarian need, including religious obligation
such as the performance of the Hajj;
E )UHH]H IXQGV DQG RWKHU ÀQDQFLDO UHVRXUFHV LQFOXGLQJ
funds derived or generated from property owned or controlled
directly or indirectly by the Taliban, or by any undertaking
owned or controlled by the Taliban, as designated by the
Committee established by paragraph 6 below, and ensure
WKDWQHLWKHUWKH\QRUDQ\RWKHUIXQGVRUÀQDQFLDOUHVRXUFHV
so designated are made available, by their nationals or by
DQ\SHUVRQVZLWKLQWKHLUWHUULWRU\WRRUIRUWKHEHQHÀWRIWKH
Taliban or any undertaking owned or controlled, directly or
indirectly, by the Taliban, except as may be authorized by
the Committee on a case-by-case basis on the grounds of
humanitarian need”.
The operative paragraphs of Resolution 1373 state that the Security

Council:
“1. Decides that all States shall:
D 3UHYHQWDQGVXSSUHVVWKHÀQDQFLQJRIWHUURULVWDFWV
(b) Criminalize the wilful provision or collection, by any
means, directly or indirectly, of funds by their nationals
or in their territories with the intention that the funds
should be used, or in the knowledge that they are to be
used, in order to carry out terrorist acts;
F )UHH]HZLWKRXWGHOD\IXQGVDQGRWKHUÀQDQFLDODVVHWVRU
economic resources of persons who commit, or attempt
to commit, terrorist acts or participate in or facilitate
the commission of terrorist acts; of entities owned or
controlled directly or indirectly by such persons; and of
persons and entities acting on behalf of, or at the direction
of such persons and entities, including funds derived or
generated from property owned or controlled directly or
5HÁHFWLRQVRQWKH6HFXULW\&RXQFLO·V&RXQWHU7HUURULVP5HVROXWLRQV 87
indirectly by such persons and associated persons and

entities;
(d) Prohibit their nationals or any persons and entities within
WKHLUWHUULWRULHVIURPPDNLQJDQ\IXQGVÀQDQFLDODVVHWV
or economic resources or financial or other related
VHUYLFHVDYDLODEOHGLUHFWO\RULQGLUHFWO\IRUWKHEHQHÀW
of persons who commit or attempt to commit or facilitate
or participate in the commission of terrorist acts, of enti-
ties owned or controlled, directly or indirectly, by such
persons and of persons and entities acting on behalf of
or at the direction of such persons;
2. Decides also that all States shall:
(a) Refrain from providing any form of support, active or
passive, to entities or persons involved in terrorist acts,
including by suppressing recruitment of members of
terrorist groups and eliminating the supply of weapons
to terrorists;
(b) Take the necessary steps to prevent the commission of
terrorist acts, including by provision of early warning to
other States by exchange of information;
F 'HQ\VDIHKDYHQWRWKRVHZKRÀQDQFHSODQVXSSRUWRU
commit terrorist acts, or provide safe havens;
G 3UHYHQW WKRVH ZKR ÀQDQFH SODQ IDFLOLWDWH RU FRPPLW
terrorist acts from using their respective territories for
those purposes against other States or their citizens;
H (QVXUHWKDWDQ\SHUVRQZKRSDUWLFLSDWHVLQWKHÀQDQFLQJ
planning, preparation or perpetration of terrorist acts or in
supporting terrorist acts is brought to justice and ensure
that, in addition to any other measures against them, such
terrorist acts are established as serious criminal offences
in domestic laws and regulations and that the punishment
GXO\UHÁHFWVWKHVHULRXVQHVVRIVXFKWHUURULVWDFWV
(f) Afford one another the greatest measure of assistance
in connection with criminal investigations or criminal
SURFHHGLQJVUHODWLQJWRWKHÀQDQFLQJRUVXSSRUWRIWHU-
rorist acts, including assistance in obtaining evidence in
their possession necessary for the proceedings;
(g) Prevent the movement of terrorists or terrorist groups
by effective border controls and controls on issuance of
identity papers and travel documents, and through meas-
ures for preventing counterfeiting, forgery or fraudulent
use of identity papers and travel documents”.
On the sensitive issue of weapons of mass destruction, the Security
Council adopted Resolution 1540 in 2004, again under Chapter VII.
This Resolution also creates obligations for States to adopt laws and
regulations of implementation.1
1
Resolution 1540 (2004) states that the Security Council:
2. Decides also that all States, in accordance with their national procedures,
shall adopt and enforce appropriate effective laws which prohibit any non-
State actor to manufacture, acquire, possess, develop, transport, transfer or
use nuclear, chemical or biological weapons and their means of delivery, in
particular for terrorist purposes, as well as attempts to engage in any of the
IRUHJRLQJDFWLYLWLHVSDUWLFLSDWHLQWKHPDVDQDFFRPSOLFHDVVLVWRUÀQDQFH
them;
3. Decides also that all States shall take and enforce effective measures to
establish domestic controls to prevent the proliferation of nuclear, chemical,
or biological weapons and their means of delivery, including by establishing
appropriate controls over related materials and to this end shall:
(a) Develop and maintain appropriate effective measures to account for and
secure such items in production, use, storage or transport;
(b) Develop and maintain appropriate effective physical protection meas-
ures;
(c) Develop and maintain appropriate effective border controls and law
enforcement efforts to detect, deter, prevent and combat, including
WKURXJKLQWHUQDWLRQDOFRRSHUDWLRQZKHQQHFHVVDU\WKHLOOLFLWWUDIÀFNLQJ
and brokering in such items in accordance with their national legal
authorities and legislation and consistent with international law;
(d) Establish, develop, review and maintain appropriate effective national
export and trans-shipment controls over such items, including appropri-
ate laws and regulations to control export, transit, trans-shipment and
re-export and controls on providing funds and services related to such
H[SRUWDQGWUDQVVKLSPHQWVXFKDVÀQDQFLQJDQGWUDQVSRUWLQJWKDWZRXOG
In addition to these prescriptions, these Resolutions create subsidi-

ary bodies of the Security Council which monitor the implementation
of the pertinent Security Council decisions at the national level. Some
of these subsidiary bodies are sanctions committees whose primary
assignment is to draw up lists of individuals and entities suspected
of being or supporting terrorists. States are required to prosecute, or
in some cases extradite, those whose names are on the lists.
The fact that all of these Resolutions – 1267, 1373, and 1540 – were
DGRSWHGSXUVXDQWWR&KDSWHU9,,VLJQLÀHGWKDWWKHVHREOLJDWLRQVZHUH
binding upon all States members of the UN; in other words, that they
were law. The results achieved through this process, therefore, are
VLPLODUWRWKRXJKSUREDEO\PRUHVSHFLÀFDQGXQLYHUVDOWKDQZKDW
might hope to be achieved by an international treaty or convention.
+RZHYHULQWKHFDVHRIWUHDWLHVD6WDWHLVQRWERXQGE\DVSHFLÀF
treaty unless that State has given its consent to be bound and, then,
XVXDOO\DIWHUWKHWUHDW\KDVJRQHWKURXJKWKHUDWLÀFDWLRQSURFHVV
What is particularly objectionable about these Security Council
Resolutions is that they obviate the need for states’ consent and, to
that extent, constitute an affront to the principle of state sovereignty.
What is more, the Security Council has effectively taken control of
states’ domestic legislative procedures by requiring every Member
State to implement prescriptions that directly affect the fundamental
rights of individuals living and conducting activities in its territory,
such as those who are arrested or extradited or have their assets frozen
because their names appear on a sanctions committee’s lists.
Some have argued that, by joining the UN, states accepted once
and for all to be bound not only by the Charter but also by the acts
deriving therefrom, such as decisions of the Security Council.2 This
argument, however, is unconvincing. The only states which could
contribute to proliferation, as well as establishing end-user controls; and

establishing and enforcing appropriate criminal or civil penalties for
violations of such export control laws and regulations;
…”
2
Article 25 of the UN Charter states, “The Members of the United Nations agree
to accept and carry out the decisions of the Security Council in accordance with
the present Charter.”
be said to have given their consent to these resolutions were those

of the 15-member Security Council that voted for them. Moreover,
these Resolutions, while not contrary to the purposes of the Charter,
surely exceed the Security Council’s competencies under Chapter
VII, which are enumerated in Articles 40,3 41,4 and 425 of the Charter.
The Charter may have intended for the Security Council to order
blockades, sanctions, or the movement of armies hither and yon,
but it never contemplated the Security Council becoming a global
legislator in the matter of municipal criminal laws.
If the Security Council has become a global legislator, one might
ask whether there is any judicial power in the UN system which can
operate as a check on the Security Council’s legislative activities.
The simple answer is: not to my knowledge.
Conceivably, national courts and tribunals of other international
organizations, such as the European Court of Human Rights and
European Court of Justice, could be called upon to evaluate the
propriety of these Security Council Resolutions. Those who are
adversely affected by the domestic legislation implementing the
3
Article 40 of the UN Charter states, “In order to prevent an aggravation of the
situation, the Security Council may, before making the recommendations or
deciding upon the measures provided for in Article 39, call upon the parties
concerned to comply with such provisional measures as it deems necessary or
desirable. Such provisional measures shall be without prejudice to the rights,
claims, or position of the parties concerned. The Security Council shall duly
take account of failure to comply with such provisional measures.”
4
Article 41 of the UN Charter states, “The Security Council may decide what
measures not involving the use of armed force are to be employed to give
effect to its decisions, and it may call upon the Members of the United Nations
to apply such measures. These may include complete or partial interruption
of economic relations and of rail, sea, air, postal, telegraphic, radio, and other
means of communication, and the severance of diplomatic relations.”
5
Article 42 of the UN charter states, “Should the Security Council consider
that measures provided for in Article 41 would be inadequate or have proved
to be inadequate, it may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security. Such action
may include demonstrations, blockade, and other operations by air, sea, or land
forces of Members of the United Nations.”
Resolutions may well bring such a challenge. The outcome of that

challenge would hinge, in part, on:
– whether the implementing legislation violated another legal
obligation;
– the source of the other obligation;
– whether that obligation is inferior or superior to a Security
Council resolution which mandated the implementing legisla-
tion; and
– the validity of the Security Council resolution.
Undoubtedly, the implementation of these Resolutions raises interest-

ing questions about state responsibility. On the one hand, States that
took no part in the adoption of those Security Council resolutions
might face litigations brought against them for implementing those
Resolutions. On the other hand, States that do not implement the
Resolutions (e.g., either because of outright hostility, or a court’s
ruling that the Resolutions contravene a higher municipal law or
international law with the status of jus cogens) risk punishment by
the Security Council. This dilemma is not unrealistic. Those questions
are at the root of many recent Security Council resolutions that seek
to improve the mechanisms in Resolutions 1267 and 1373.6
In sum, the counter-terrorism Resolutions’ goals may be laudable,
but the means by which they have been effected are objectionable.
The Resolutions run roughshod over the sovereignty of states which
never consented to such an intrusion in their domestic affairs. In any
event, regardless of the propriety of these Resolutions, the Security
Council should try to be more considerate in the future of the various
domestic legal systems and the fundamental human rights that may
be impacted because of its decisions.
6
See, more recently, as regards Resolution 1267 (1999), Resolution 1526 (2004);
as regards Resolution 1373 (2001), see Resolution 1535 (2004).
Chapter 7
ASSISTANCE TO STATES CHALLENGED BY

UNCONSTITUTIONAL MEANS
Roy S. Lee
I. Introduction
More than one hundred nations from all regions of the world have
been participating in the work of the Community of Democracies1 and
of the New or Restored Democracies.2 They have produced solemn
instruments for the promotion and consolidation of democracy. All
WZHOYHLQWHUJRYHUQPHQWDOLQVWLWXWLRQVKDYHDOVRGHYHORSHGVSHFLÀF
programs and activities to assist their member governments to im-
plement policies of democracy. The African Union, Organization
1
The Community of Democracies is an international coalition of nations and
its objective is to promote democratic principles and consolidate democratic
institutions all over the world. Its most important event is a meeting that takes
place every two years, the Ministerial Conference of the Community of
Democracies. So far three such meetings have been held: Warsaw (June 2002),
Seoul (November 2004) and Santiago de Chile (April 2005). Over 100 nations
attended upon invitation. The Governing Group of the Community determines
the list of invitees.
2
A small group of countries initiated in 1988 the process of holding International
Conferences of New or Restored Democracies (ICNRD) at an interval of every
three years for the purpose of sharing experience of democratization processes
and promoting good governance. For more details see <http://www.icnrd5-
mongolia.mn>.
of American States, La Francophonie, Economic Cooperation of

West African States (ECOWAS) and Organization for Security and
Cooperation in Europe (CSCE) have gone further and can take a range
of measures to help a Member State whose government is threatened
by unconstitutional challenges.3
Almost every year, one elected government is overturned by
military forces.4 Since 1989, in the Sub-Saharan region alone, national
armies have intervened in political affairs in some 13 countries, or one
in four of the nations in the region.5 During the past century, about
170 million people, mostly civilians, women and children were killed
largely as a result of struggle for power.6 There is a need to protect
constitutionally elected governments from internal threat.
Many of the new or restored democracies are still in transition and
some may be fragile and likely to face unconstitutional challenges
from within. While some of them may have access to their respective
regional or linguistic institutions,7 about 30-40 governments of the
Community of Democracies or of the Conference of New or Restored
Democracies do not belong to any such groupings and would have
no institution to turn to should there be unconstitutional challenges.
While they may turn to the Security Council when the threat is to
international peace and security, unconstitutional challenges may
not fall within this category. The process of democratization could
be greatly strengthened if the Community of Democracies or the
Conference of New or Restored Democracies could lend their support
to this group of states to confront unconstitutional moves. Even for
those states that have access to regional institutions, any additional
support from the Community or the Conference would only further
3
They include the Council of Europe, International Organization of La Franco-
phonie, the Common Wealth, the African Union and Economic Community for
Western African States. See infra section III.
4
See Human Development Report 2002, p. 6. According to the Report, 46 elected
governments were forcibly overturned by authoritarian rule in the latter half of
last century.
5
Ibid.
6
Ibid.
7
See infra section II.
7. Assistance to States Challenged by Unconstitutional Means 95
strengthen their effort. Threats to democracy are a serious matter and

should be of general concern. A democratic government needs and
certainly deserves all the support that it can get.
It is, therefore, important that the Community and the Conference
should consider what they can do for their member governments when
threatened by unconstitutional challenges. The subject is no doubt
highly political and requires careful consideration. To help these
LQVWLWXWLRQVÀQGDQRSWLPXPDSSURDFKWKLVDUWLFOHÀUVWH[SODLQVWKH
working of such measures in existing institutions and then suggests a
possible mechanism focusing on six core issues for the consideration
of those interested institutions. The last section provides a list of basic
elements that should be embodied in a constitution.
II. Institutional measures for supporting constitutional

governments
This section surveys existing institutional procedures or mechanisms
that may be taken by the respective regional or international organiza-
tion to promote or assist democratization in general or to lend support,
in particular, to a member or participating state whose democracy is
threatened by unconstitutional activities.8
As will be seen, what constitutes a threat to democracy varies
from institution to institution. Most procedures apply only to internal
VLWXDWLRQVZKLFKDUHGHÀQHGDVUDQJLQJIURPFRQWLQXRXVGLVWXUEDQFHV
and tensions (riots and acts of violence), through internal armed
FRQÁLFWV EHWZHHQ JRYHUQPHQWDO DXWKRULWLHV DQG RUJDQL]HG DUPHG
groups, or between such groups), to coups d’état. A second type
8
See for instance, Final Warsaw Declaration: Towards a Community of Democra-
cies Ministerial Conference, Warsaw, 27 June 2000; Declaration de Bamako par
les Ministres et Chefs de délégation des Etats et gouvernements des pays ayant
le français en partage, A/55/731; Inter-American Democratic Charter (IADC);
The Cotonou Declaration for Peace, Security, Democracy and Development
(Cotonou), A/55/889. Moscow 1991, OSCE; Economic Community of West
$IULFDQ6WDWHV(&2:$63URWRFRO5HODWLQJWRWKH0HFKDQLVPIRU&RQÁLFW
Prevention, Management, Resolution, Peace-Keeping and Security Done at
Lome, 10 December 1999.
goes further and includes also external threats: cross-border invasion,

transnational organized crime and terrorism. A third type addresses
not only undemocratic means for acquiring power but also when
an existing government seeks to stay in power illegally beyond its
constitutional terms. In general, institutions with larger membership
DUHPRUHOLNHO\WRFKRRVHWKHÀUVWW\SH5HJLRQDORUODQJXDJHJURXSV
are more inclined to select the second or third type.
Some institutions condemn unconstitutional acts and the effects
are largely declaratory. Examples are the 1991 Moscow Declaration
of the OSCE,9 the Warsaw Declaration in 2000 of the Community of
Democracies10 and the Cotonou Declaration of 2001 of the Conference
of New or Restored Democracies.11 Sometimes, the institutions go
9
In 2000, the Community of Democracies declared jointly “to cooperate to
discourage and resist” the overthrow of a constitutionally elected government,
and not to include in its membership those countries “where there is currently
a disruption of constitutional rules or severe persistent erosion or lack of es-
sential elements of democracy.” The Community members are to cooperate in
order to face such “transnational challenges to democracy” as state-sponsored,
cross-border and other forms of terrorism; organized crime; corruption; drug
WUDIÀFNLQJ LOOHJDO DUPV WUDIÀFNLQJ WUDIÀFNLQJ LQ KXPDQ EHLQJV DQG PRQH\
laundering. How to strengthen the cooperation is not mentioned. Presumably,
that is left for further consideration.
10
The OSCE participating states condemn any forces seeking to take power from
a representative government. (See, Moscow Meeting 1991, OSCE, paragraph
17.) In case of overthrow or attempted overthrow of a legitimately elected
government by undemocratic means, the participating states support “vigorously
the legitimate organs of that state, in accordance with the UN Charter.” The
phrase seems to suggest that they would support any action that may be taken
by the United Nations pursuant to the Charter. (The enforcement measures under
Chapter VII may only be triggered in connection with the breach or threat to
international peace or security. The focus may be different but could include
situations referred to in the Moscow Declaration.)
11
In 2001, the Conference of New or Restored Democracies condemned any
unconstitutional moves against democratic governments, which included “all
military coups d’état, all forms of terrorism and violence against democratic,
freely elected Governments, all undemocratic means of gaining, wielding and
staying in power and all unconstitutional changes of government.” See Cotonou
Declaration for Peace, Security, Democracy and Development (Cotonou),
A/55/889.
further than a mere condemnation; they identify a list of measures

that may be taken by each individual member, though the institu-
tion itself takes no position on those measures.12 As will be seen,
several institutions can prescribe coercive measures. In most cases,
the procedures may only be triggered at the request of the member
government concerned. In very few other cases, the institution itself
may take step to initiate an action.
This section will also refer to other complementary activities of
these institutions relevant to democracy and good governance.
1. La Francophonie13
This is an organization comprising 55 Member States using French
as a common language and its principal objectives are restoration and
development of democracy, and the support of the rule of law and
human rights. It holds biannual summit meetings which are attended
by the heads of state and government.
Similar to article 96 of the UN Charter which empowers the
Secretary-General to bring a situation to the attention of the Security
Council, the Secretary-General of La Francophonie can also trigger an
institution’s action upon his/her “evaluation of democratic practices
in the community”.14 This means it may be done on the initiative of
the Secretary-General. The quoted phrase seems to provide adequate
12
In 2002, the Community outlined a series of measures that could be used by
countries individually, together or as members of international or regional
organizations to respond to violence against a democratic government, disruption
of constitutional rule, persistent unconstitutional alteration of the democratic
order, or support for terrorism. Such measures include: suspending bilateral
relations, creating trained experts, developing systems for monitoring crises,
DQGRIIHULQJJRRGRIÀFHVWRSURGXFHUHPHGLDOPHDVXUHV
13
See the web site of La Francophonie: <http://www.francophonie.org/frm/
publications/frm.html>.
14
The Bamako Declaration issued by the Symposium on the Practices of De-
mocracy, Rights and Freedoms in the French-speaking Community, November
2000; see A/55/731, paragraph 5. It seems that the term “democratic practices”
would include an existing government trying to stay in power illegally beyond
its constitutional terms. The decision lies essentially with each Community
member.
latitude for the Secretary-General to make a decision. But if the

institution decides to send a facilitator or observer to the country to
ÀQGVROXWLRQVWKHFRQVHQWRIWKHFRXQWU\LQTXHVWLRQLVUHTXLUHGVLQFH
ZLWKRXWZKLFKLWZRXOGEHGLIÀFXOWIRUWKHIDFLOLWDWRURUREVHUYHUWR
gain access to the country concerned.
But, when there exists a “breakdown of democracy or massive
human rights violations” in a Member State, the Standing Council,
the executive body of the organization, may convene a special session,
after having consulted the membership. At the special session, a range
of measures may be taken: to
L FRQÀUPWKHEUHDNGRZQRIGHPRFUDF\RUWKHH[LVWHQFHRIPDV-
sive human rights violations,
(ii) issue public condemnation, or
(iii) call for the re-establishment of the constitutional order or an
immediate halt to such violations.
On the basis of a mission report, the Council may also decide to

apply a range of sanctions depending on the seriousness of the situ-
ation. For instance, the Council may refuse to support that country’s
nomination to elective posts in international organizations, to hold
events or conferences that are to be held in that country, or to accept
that country’s representatives at meetings of the Community. It may
also recommend non-issuance of visas to current national authorities
and reduce inter-governmental contacts, suspension of multilateral
cooperation with that government or country,15 or suspension auto-
matically of membership in the institution in the case of a military
coup d’état. La Francophonie may also reach out to other international
or regional organizations inviting them to take part in the measures
that it has taken.
While the decision is likely to be based on political consideration,
it is encouraging that such a range of measures are available.
3URJUDPV
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conducive to the re-establishment if democracy are however excluded from
the suspension.
2. Organization of American States (OAS)

The constituent instruments of the OAS recognize that representative
democracy is indispensable for the stability, peace and development
of the region.16 One of its purposes is therefore to promote and con-
solidate representative democracy, with due respect for the principle
of non-intervention.17 But it was not until the late 1980s that the
principle of representative democracy gained ground and acquired
UHDOSROLWLFDOVLJQLÀFDQFH
Thus, the 1992 Washington Protocol to the Charter lays down
institutional sanctions against any member violating the principle of
representative democracy. A member’s right of participation in the
Organization may be suspended if its “democratically constituted
government” has been overthrown by force.18 This means that any
change of a constitutionally elected government can only come about
through democratic processes.19
The Heads of State of the Americas meet regularly on intra-
hemispheric policy matters and have made important commitments
to democracy and good governance.20 The resulting instruments
(declarations and plans of action) are then followed up by a Special
&RPPLWWHHWRIRUPDÀUPOLQNDJHEHWZHHQWKH2UJDQL]DWLRQDQGWKH
Summits.21 As a Head of State has exclusive competence to make
16
The OAS Charter of 1948 speaks of “ political organization” of the American
States “on the basis of the effective exercise of representative democracy.”While
WKHWHUPÚHSUHVHQWDWLYHGHPRFUDF\µLWVHOIPD\QRWEHVSHFLÀFHQRXJKLWKDV
been understood to mean that the government, which forms the basis of the
Organization, should be democratically constituted to represent the people.
17
Articles 2 and 3, the 1985 Protocol of Cartagena de Indias amending the 1947
Charter.
18
Article 9, Protocol of Washington, 1992.
19
In practice, no sanctions have been applied, even in the case of Haiti (1991),
Peru (1992) and Guatemala (1993). The events in Peru (1992), however, led
to the taking of initiatives which resulted in the adopted of the Inter-American
Democratic Charter in 2001 (see below).
20
That is the Special Committee on Inter-American Summits Management.
21
The First (Miami) Summit of the Americas was convened by President Clinton,
whereas the decision to hold a second, Santiago Summit of the Americas was
jointly convened by all the Heads of State. Active participation of sub-regional
commitments on behalf of the state, instruments emerging from the

Summits possess as binding a status as do treaties.
The Quebec Summit adopted, for instance, a “democracy clause”
proclaiming that any unconstitutional alteration or interruption of the
democratic order in a Member State constitutes an “insurmountable
obstacle” to the participation of that state’s government in the Sum-
mits process. This democracy clause has also been introduced to such
sub-regional institutions as the Andean Community, Mercosur, the
Rio Group and the Central American Integration System.
These Summits have also led to the adoption of important instru-
ments on democracy, including the Inter-American Democratic
Charter of 2001.22
Procedural rules have also been developed to maintain and restore
representative democracy.23According to these rules, the executive
body of the Organization must, within ten days of the occurrence, meet
to examine any “sudden or irregular interruption of the democratic
political institutional process or of the legitimate exercise of power
by the democratically elected government” in any Member State.24
A meeting of the Ministers of Foreign Affairs or a special session of
the General Assembly may be convened to examine such a situation
collectively and adopt any appropriate decisions.25
In addition, meetings of the Foreign Ministers may also be called
to consult on “problems of an urgent nature,”26 which would seem
to include matters of representative democracy.
organizations such as the Caribbean and the Rio Group has always been stressed
(see <http://www.summit-americas.org/eng/summitprocess.htm>).
22
Summits have taken place in Miami, USA, 1994, in Santiago, Chile, 1998, and
in Quebec City, Canada, 2001. For further information on the Summits of the
Americas see <http://www.summit-americas.org>.
23
Ibid.
24
See General Assembly Resolution 1080 (XXI-O/91) on Representative
Democracy.
25
Ibid.
26
OAS Charter, Art. 61. Chapter X of the Charter establishes the Meeting of
Consultations of the Ministers of Foreign Affairs.
A Unit for the Promotion of Democracy (UPD) was created in

1998 to act as the primary agent for responding to Member States’
request for advice or assistance in matters relating to their political
institutions and democratic procedures.27 The activities of the Unit
have thus included electoral assistance and observation, collaboration
with national legislatures and parliaments, civic education, and mat-
ters relating to decentralization.28 The UPD has carried out dozens of
HOHFWLRQREVHUYDWLRQPLVVLRQVDQGKDVEHHQSDUWLFXODUO\LQÁXHQWLDOLQ
the recent political developments in Peru and Mexico.29
Under the Organization of American States, a Member State may
request assistance when it considers that “its democratic political
institutional process or its legitimate exercise of power is at risk.”30
This means that a request from a Member State is required to trigger
the procedure. With the consent of that government, visits or missions
may be arranged to analyze the situation.31
The Permanent Council, the executive body, may meet immedi-
DWHO\WRWDNHWKHQHFHVVDU\GLSORPDWLFLQLWLDWLYHVHJJRRGRIÀFHV
to foster the restoration of democracy. The General Assembly may
also be convened in a special session to adopted decisions that it
deems appropriate.
A member’s right to participate in the OAS may be suspended
ZLWKLPPHGLDWHHIIHFWE\DWZRWKLUGVDIÀUPDWLYHYRWHRIWKH0HP-
ber States, if the special session determines that there has been an
“unconstitutional interruption of the democratic order.”32
27
AG/RES. 1603 (XXVIII-O/98)
28
For further details, see <http://www.upd.oas.organization/Introduction/history.
htm>.
29
It is important to note that the OAS’s resolutions in support of democracy
are not a novelty. As early as 1959, the Fifth Meeting of the Consultation of
Ministers of Foreign Affairs called for representative democracy throughout
the hemisphere.
30
See Articles 17-22, Inter-American Democratic Charter.
31
Its participation in the Permanent Council is not affected at this stage. See
Article 19, Inter-American Democratic Charter.
32
In the OAS, an unconstitutional interruption of the democratic order or an
unconstitutional alteration of the constitutional regime constitutes “an insur-
mountable obstacle” to that government’s participation in OAS meetings.
3. Organization for Security and Cooperation in Europe 33

Under its human dimension objectives, the Organization for Security
and Cooperation in Europe (OSCE) has adopted instruments, cre-
ated norms and initiated activities for the promotion of democracy
and governance.34 The OSCE instruments are “politically binding
commitments” for the participating states,35 and become effective
upon adoption, and are implementable without having to wait for
VXEVHTXHQW GRPHVWLF DSSURYDO RU UDWLÀFDWLRQ 7KLV SURFHVV DOORZV
also the OSCE to react quickly to new needs.36
33
The geographic scope of OSCE is not limited to Europe but includes Canada
DQGWKH8QLWHG6WDWHVDVZHOODVFRXQWULHVIURP&HQWUDO$VLDDQGWKH3DFLÀF6HH
“OSCE Human Dimension Commitments: A Reference Guide” published by
the OSCE/ODIHR in 2001.The work of its predecessor, CSCE, is also covered
under the present section.
34
It may be recalled that the Final Act of the 1975 Helsinki Conference addressed
the principle of non-intervention in internal affairs and relations between
participating states, and the respect for human rights and fundamental freedoms
of thought, conscience, religion or belief. Though only an initial instrument, it
set out a cooperation network and exchange programs in economics, science,
technology, education, information and environment, which are key to democ-
racy and open society. The Final Act also provided a framework for follow-up
conferences and meetings to continue the development. The OSCE focuses
on regional security which encompasses not only politico-military aspects but
also human, economic and environmental dimensions. In the eyes of OSCE,
all these aspects are of equal relevance to regional security. See OSCE Human
Dimension Commitments: A Reference Guide published by the OSCE/ODIHR
in 2001, pp. 11-12.
35
According to OSCE practice, the instruments are adopted by consensus at sum-
mits or ministerial meetings following careful preparation, intensive negotiation
and hard bargaining. The gathering of the Heads of State or ministers further
bears witness to each other’s undertaking and further increases the political
importance of the products. Each participating government is politically bound
to honour such instruments. They are not subject to reservation and must be
accepted as a whole. The governments concerned are however free to choose
any appropriate means of implementation. They may choose legislative,
administrative or regulatory measures for implementation. This innovative
process of norm-making is therefore noteworthy
36
For example, when human rights violations in regard to minorities increased at
WKHEHJLQQLQJRIWKHVLWZDVWKH26&(WKDWÀUVWGUDIWHGDFRPSUHKHQVLYH
VHWRIVWDQGDUGVLQWKHÀHOGRIPLQRULW\SURWHFWLRQ/DWHUWKHVHSROLWLFDOVWDQGDUGV
For instance, in 1990 the Conference for Security and Cooperation

in Europe (CSCE) members declared that “the will of the people,
freely and fairly expressed through periodic and genuine elections, is
the basis of the authority and legitimacy of all government,”37 and that
democracy is an inherent element of the rule of law. They recognized
“the importance of pluralism with regard to political organization”38
and also elaborated provisions on free elections.39
In the Paris Charter, CSCE members declared a “new era of de-
mocracy, peace and unity” that committed them to build, consolidate
and strengthen “democracy as the only system of government of
our nations.”40 In the Moscow Document, the participating states
XQDQLPRXVO\DIÀUPWKDWLVVXHVUHODWLQJWRKXPDQULJKWVIXQGDPHQWDO
freedoms, democracy and the rule of law are “of international
concern, as respect for these rights and freedoms constitutes one of
the foundations of the international order.”41
In early 1990s, the OSCE developed a set of procedures allowing
one participating state to raise “questions relating to the human
dimension” in another OSCE state.42 Later, such “bilateral approach”
by an individual state gave way to measures that may be initiated by
WKH2UJDQL]DWLRQ6SHFLDORIÀFHVZHUHFUHDWHGWRDFWRQEHKDOIRIWKH
Organization to handle emerging issues in participating states. The
OSCE found that institutional action was more objective, produc-
served as basis for the legally binding Council of Europe Framework Convention
on the Protection of National Minorities.
37
CSCE Document of the Copenhagen Meeting of the Conference on the Human
Dimension, 29 June 1990, paragraph 6.
38
Ibid., paragraph 5.
39
Ibid., paragraphs 7 and 8.
40
Conference on Security and Cooperation in Europe, Charter of Paris for a New
Europe and Supplementary Document to give effect to certain provisions of the
Charter, 21 November 1990.
41
Conference on Security and Cooperation in Europe, Document of the Moscow
Meeting of the Conference on the Human Dimension of the CCE, 3 October
1991, Preamble.
42
These procedures were developed as a follow-up of the Vienna Concluding
Document of 1989 and the Conference on the Human Dimension of 1991 held
in Moscow.
tive, and carried more weight than that undertaken by an individual

state. But institutional action is subject to voting by the participating
states. Since the OSCE takes decisions generally by consensus, this
procedure requires extensive consultation, persuasion and coalition
building.
Special organs were also set up to deal with the issues of self-
GHWHUPLQDWLRQPLQRULWLHVHOHFWLRQDQGKXPDQULJKWV$QRIÀFHÀUVW
created in 1990 to deal with free election was broadened to handle
also rule of law, torture prevention, election assistance, freedom
RI PRYHPHQW 1*2V JHQGHU WUDIÀFNLQJ IUHHGRP RI UHOLJLRQ RU
belief, and election observation. It uses well-developed procedures
to monitor elections in the new or restored democracies in eastern
Europe and central Asia.
A High Commissioner for National Minorities was created in
199743 whose task is to avert tensions which have the potential of
EHFRPLQJDFRQÁLFWDIIHFWLQJVWDELOLW\RUUHODWLRQVEHWZHHQSDUWLFLSDW-
ing states.44
The OSCE representative on freedom of the media works with
governments, parliaments, the media, and NGOs and advocates and
promotes “full compliance with OSCE principles and commitments
regarding freedom of expression and free media.” 45 The office
handles serious problems involving obstruction of media activities
and unfavourable working conditions for journalists.
4. The European Union

European Union members pursue a common foreign and security
policy of consolidation of democracy which is based on the guiding
principles of liberty, democracy, respect for human rights, fundamen-
tal freedoms and the rule of law.46
43
OSCE Permanent Council decision No. 193, 5 November 1997.
44
CSCE Conference, Helsinki 1992, para. 3
45
Mandate of the OSCE Representative on Freedom of the Media Copenhagen
1997 (Annex 1) para 2
46
See Articles 6 and 11 of the Treaty on the European Union and Article 177(2)
of the Treaty establishing the European Community.
Election support is a key element in the Union’s global strategy

for implementing democracy because its presence at elections in third
countries is a political statement and may contribute to increasing
WKHFRQÀGHQFHRIWKHHOHFWRUDWHLQWKHHOHFWLRQSURFHVVUHGXFLQJWKH
possibility of fraud, and improving election systems. Assistance has
been provided to national electoral commissions, as well as training
of observers, and monitoring of the media through independent bod-
ies. To make its support effective, it requires a thorough assessment
of and preparation for the political situation and potential effect in
that country, and the resource need, before sending a mission. The
ÀQGLQJVDQGUHFRPPHQGDWLRQVRIHDFKPLVVLRQDUHXVXDOO\IROORZHG
up in political dialogues and subsequent assistance programs. After
the election, the authorities of the country concerned are invited to
identify shortcomings and to address them.
The Union has also adopted guiding instruments for the promotion
of democracy and human rights not only for its members but also
for potential members and third countries. For instance, the Council
recommended that respect for human rights and democratization
should be based on international norm and instruments, particularly
those of the United Nations, and should form part of all EU political
dialogues and bilateral relations with third countries. It requires that
democracy issues be included in planning, design, implementation
and monitoring of poverty reduction programs. For the third countries,
the Council acknowledges that rights of the child, freedom of the
media and active involvement of civil society should be given priority
in the promotion of democracy. The promotion of corporate social
responsibility, increased trade and further trade liberalization can
contribute to democratization and human rights.
5. Economic Community of West African States

The ECOWAS is a multidimensional institution encompassing
economic and development goals as well as political and security
REMHFWLYHV2QHRILWVVSHFLÀFSULQFLSOHVLVWRSURPRWHDQGFRQVROLGDWH
“a democratic system of governance in each member state.”47
47
See, the Declaration of Political Principles adopted in Abuja on 6 July 1991.
Article 4, Fundamental Principles. Other relevant principles include: recognition,
Member States are urged to conduct democratic elections and

cooperation between communities and townships, which are consid-
ered effective measures to prevent or resolve internal or inter-state
FRQÁLFWV48
In 1997, when a coup d’état took place in Sierra Leone after the
holding of internationally monitored elections a year earlier, the
Organization of African Unity (OAU) condemned the coup and
endorsed the use of “all necessary means” with a view to protecting
the people and restoring the elected government. With the invitation
of the elected Sierra Leone government, the ECOWAS Heads of State
“endorsed the use of force as a response to the coup” and enforced
embargoes. In February 1998, the Nigerian-led troops drove out the
rebels and recovered Freetown.49 Subsequently, UN peacekeeping
forces were deployed to protect the people and to maintain peace
and security.
Although the Sierra Leone situation may be a special case, it
indicates, nevertheless, that the ECOWAS and the OAU are prepared,
under certain circumstances, to use force, to protect civilians and to
restore an elected government.
In 1999, the ECOWAS adopted a mechanism to deal with “seri-
ous and massive violation of human rights and the rule of law,” and
an overthrow or attempted overthrow of democratically elected
promotion and protection of human and peoples’ rights in accordance with the
provisions of the African Charter on Human and Peoples’ Rights; accountability,
economic and social justice and popular participation in development; promo-
tion and consolidation of a democratic system of governance in each Member
State as envisaged by the Declaration of Political Principles; equitable and just
GLVWULEXWLRQRIWKHFRVWVDQGEHQHÀWVRIHFRQRPLFFRRSHUDWLRQDQGLQWHJUDWLRQ
solidarity and collective self-reliance; inter-state cooperation, harmonization of
policies and integration of programs; maintenance of regional peace, stability
and security through the promotion and strengthening of good neighbourliness;
active cooperation between neighbouring countries and promotion of a peaceful
environment as a prerequisite for economic development.
48
Article 58, Treaty of ECOWAS.
49
See also Security Council Resolution S/1997/886.
government.50 As appropriate, a wide range of measures may be

WDNHQ LQFOXGLQJ UHFRXUVH WR WKH &RXQFLO RI (OGHUV IDFWÀQGLQJ
missions, political and mediation missions or military intervention
by the ECOWAS.
Under the ECOWAS Protocol, where the authority of a member
government is absent or has been seriously eroded, the processes
towards restoring political authority may be initiated through electoral
assistance in cooperation with relevant regional and international
organizations and in conjunction with the development of respect
for human rights, and the enhancement of the rule of law and the
judiciary.51
6. African Union
On 9 July 2002, the 53-nation African Union replaced the 28-year
old Organization of African Unity. This new organization requires
its members to hold free elections, to establish independent elec-
toral commissions, to safeguard freedom of expression, to allow all
political parties the freedom to campaign, to consolidate democratic
institutions and culture, and to ensure good governance and the rule
of law. Sanctions may be imposed on any Member State that fails to
comply with the decisions and policies of the Union.52
The Union may intervene in Member States’ affairs to halt or deal
with genocide, war crimes or gross violations of human rights. Any
50
The mechanism, HQWLWOHGWKH0HFKDQLVPIRU&RQÁLFW3UHYHQWLRQ0DQDJHPHQW
5HVROXWLRQ3HDFHNHHSLQJDQG6HFXULW\DOVRDSSOHVWRDDJJUHVVLRQRUFRQÁLFW
LQ DQ\ 0HPEHU 6WDWH RU WKUHDW WKHUHRI E FRQÁLFW EHWZHHQ WZR RU VHYHUDO
0HPEHU 6WDWHV F LQWHUQDO FRQÁLFW WKDW WKUHDWHQV WR WULJJHU D KXPDQLWDULDQ
disaster or that poses a serious threat to peace and security in the sub-region.
6HH$UWLFOH 3URWRFRO UHODWLQJ WR WKH 0HFKDQLVP IRU &RQÁLFW 3UHYHQWLRQ
Management, Resolution, Peacekeeping and Security adopted by the Heads of
State and Government of the Member States of the Economic Community of
West African States (ECOWAS), done at Lome, 10 December 1999.
51
3URWRFRO
3URWRFRO 5HODWLQJ
5HODWLQJ WR
WR WKH
WKH 0HFKDQLVP
0HFKDQLVP IRU IRU &RQÁLFW
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Resolution, Peace-Keeping and Security Done at Lome, 10 December 1999,
Article 45.
52
See the Constitutive Act signed in Lome on 1 July 2000, Articles 3, 4 and 23
of the Act.
governments that come to power through unconstitutional means

will not be allowed to participate in the activities of the Union.53
Members also agree to work towards establishing an Pan-African
Parliament, a Peace and Security Council, a central bank and a
common currency.
The principle of non-recognition was immediately applied in 1999
when the Union decided not to recognize Mr. Marc Ravalomanana
as Madagascar’s leader on the grounds that he took power uncon-
stitutionally.54
The African Peer Review Mechanism (APRM) is a self-monitoring
oversight mechanism voluntarily acceded to by Member States of the
Union.55 The APRM consists of a group of eminent persons whose
tasks are to ensure that the policies and practices of participating states
conform to the agreed political, economic and corporate governance
values, codes and standards contained in the Declaration.56 The
Secretariat of this review body maintains database information on
political and economic developments in all participating countries,
propose performance indicators and track performance of individual
countries. The group conducts reviews relating to early signs of
impending political or economic crisis in a Member State.
53
Ibid., Article 30.
54
It may be noted that the OAU Charter “unreservedly condemns, in all forms,
political assassination as well as of subversive activities on the part of a neigh-
bouring State or any other State”. This general condemnation can be interpreted
to include any undemocratic means of obtaining (or removing someone from)
power. In 1999, the OAU Assembly of Heads of State and Government adopted
two important decisions pertaining to the basic elements of democracy and to
the restoration of democracy. Decision 141 sets out the essential elements for
EXLOGLQJUHSUHVHQWDWLYHDQGVWDEOHJRYHUQPHQWDQGIRUSUHYHQWLQJFRQÁLFWVWKH
principles of good governance, transparency and human rights. Decision 142
relates to the need to restore constitutional legality to Member States whose
governments came to power through unconstitutional means.
55
See July 2002 Declaration on the Implementation of the New Partnership
for Africa’s Development (NEPAD), Assembly/AU/Decl. 1(1), AHG/235
(XXXVIII), annex 1.
56
Ibid.
The APRM encourages the government concerned to take correc-

tive measures and it seeks to engage the government in constructive
dialogue. The participating Heads of State and Government may
put the government concerned on notice of their collective intention
to proceed with appropriate measures by a given date to provide a
IXUWKHURSSRUWXQLW\IRUDGGUHVVLQJWKHLGHQWLÀHGVKRUWFRPLQJV6L[
months after consideration of the situation, the report of the group is
to be formally and publicly tabled in key regional and sub-regional
structures.
7. The United Nations

The concept of democracy and governance is rooted in the United
Nations Charter and manifests itself in several manners.
The membership of the Organization is based on “sovereign equal-
ity,” irrespective of a member’s size, economic or political power.
This is then expressed by and large in the voting (one-nation-one-
YRWHGHFLVLRQPDNLQJPDMRULW\DQGFRQVHQVXVEXLOGLQJÀQDQFLDO
contributions (ability to pay) and geographical representation and
distribution of seats in its various bodies. The Permanent Members
RIWKH6HFXULW\&RXQFLODQGWKHLUYHWRSRZHUDUHH[FHSWLRQVUHÁHFWLQJ
the compromise reached after the Second World War.
The Charter opens with the words “We the Peoples of the United
Nations”57 which signify “the rooting of the sovereign authority of
the Member States, and thus the legitimacy of the Organization which
they were to compose, in the will of their peoples.”58 Therein also lies
the very basis of the sovereignty of the Member States.
The following Charter provisions also illustrate the close links
between democracy and purposes of the Organization: 59
² 7RUHDIÀUPIDLWKLQIXQGDPHQWDOKXPDQULJKWVLQWKHGLJQLW\
and worth of the human person, in the equal rights of man and
women and of nations large and small;
57
3UHDPEOH
3UHDPEOHRIWKH&KDUWHUUHDIÀUPVÍDLWKLQWKHHTXDOULJKWV«RIQDWLRQVODUJH
RI WKH &KDUWHU UHDIÀUPV ÍDLWK LQ WKH HTXDO ULJKWV « RI QDWLRQV ODUJH
and small.” Article 2(1) states that “The Organization is based on the principle
of sovereign equality of all its Members.”
58
5HSRUWRIWKH6HFUHWDU\*HQHUDO)LIW\ÀUVWVHVVLRQRIWKH*HQHUDO$VVHPEO\
5HSRUW RI WKH 6HFUHWDU\*HQHUDO )LIW\ÀUVW VHVVLRQ RI WKH *HQHUDO $VVHPEO\
59
Article 1, United Nations Charter.
– To establish conditions under which justice and respect for

the obligations arising from treaties and other sources of
international law can be maintained;
– To promote social progress and better standards of life in larger
freedom;
– To practice tolerance and live together with one another as good
neighbours;
– To employ international machinery for the promotion of the
economic and social advancement of all peoples;
– To take collective measures to prevent and remove threats to
the peace, to bring about by peaceful means, and in conformity
with the principles of justice and international law, adjustment
or settlement of international disputes;
– To develop friendly relations among nations based on respect
for the principle of equal rights and self-determination of
peoples;
– To achieve international cooperation in solving international
problems of an economic, social cultural or humanitarian char-
ter, and in promoting and encouraging respect for human rights
and for fundamental freedoms for all.
Article 1(2) of the UN Charter, together with the implementation

provisions contained in Chapters XI, XII, and XIII of the Charter,
has served as the basis for the work of the Organization in bringing
equal rights and self-determination to the peoples.
The General Assembly’s proclamation in 1960 of the historic
Declaration on the Granting of Independence to Colonial Countries
and Peoples further set forth the objectives and procedures for freeing
the peoples of the non-self-governing territories through their freely
expressed will and desire.60 As a result, millions of people have gained
60
See Resolution 1514(XV), 14 December 1960. This Declaration states, inter
alia, that “subjecting peoples to alien subjugation, domination and exploitation
constitutes a denial of fundamental human rights” is contrary to the Charter, and
is an impediment to the promotion of world peace and cooperation. It further
states that immediate steps shall be taken to transfer all powers to the peoples
of the non-self-governing territories “without any conditions or reservations, in
accordance with their freely expressed will and desire, without any distinction as
independence or self-government through the de-colonization efforts

of the United Nations.61
7KH8QLWHG1DWLRQV&KDUWHUUHDIÀUPVÍDLWKLQIXQGDPHQWDOKXPDQ
rights, in the dignity and worth of the human person, in the equal
rights of men and women …”.62 A principal task of the Organization
has therefore been to promote and encourage respect for human rights
and fundamental freedoms for all without distinction as to race, sex,
language or religion.63 Member States have pledged to take joint
or separate action in cooperation with the Organization to achieve
universal respect for human rights.64
To establish a common standard of achievement for all persons,
the General Assembly adopted in 1948 the Universal Declaration of
Human Rights and spells out basic civil, cultural, economic, political
and social rights that all human beings in every country should enjoy.
Indeed, many countries’ constitutions or basic laws have subsequently
incorporated provisions of the Universal Declaration.
To take the Declaration a step further, the General Assembly
promulgated in 1966 two Covenants – one on Economic, Social and
Cultural Rights and the other on Civil and Political Rights – translat-
ing these basic concepts into legally binding commitments and setting
up mechanisms to monitor the compliance of States Parties.65 For
to race, creed or colour in order to enable them to enjoy complete independence

and freedom.”
61
More than 80 nations have gained independence and some 53 territories have
acquired self-government status through political association or integration with
other independent states. See Basic Facts About the United Nations1HZ<RUN
United Nations publications, 2000) p. 275.
62
Preamble, the United Nations Charter.
63
Article 1, the UN Charter.
64
Article 56, the UN Charter.
65
The Covenant on Civil and Political Rights has two Optional Protocols: the
ÀUVW3URWRFROSURYLGHVIRUUHFRXUVHSURFHGXUHVWKDWH[WHQGWRLQGLYLGXDOVWKH
right of petition, the second Protocol aims at the abolition of the death penalty.
It established an 18-member Human Rights Committee to consider reports
submitted periodically by States Parties to the First Protocol on measures taken
to implement the Covenant. The Covenant on Economic, Social and Cultural
Rights, which entered into force in 1976, requires States Parties to submit
instance, the right to vote is contained in Article 21 of the Universal

Declaration and was incorporated in Article 25 of the Covenant on
Civil and Political Rights.66 Today, close to 150 states are parties to
each of the Covenants. The mechanisms set up to monitor the system
are also in operation.67
The Covenant on Civil and Political Rights deals with eight
categories of right:
– freedom of movement;
– equality before the law;
– the right to a fair trial and presumption of innocence;
– freedom of thought, conscience and religion;
periodical reports to a Committee established by the ECOSOC, on measures

taken to implement its provisions.
66
Article 21 of the Universal Declaration on Human Rights provides:
1. Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government;
this will shall be expressed in periodic and genuine elections which shall
be by universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures.
Article 25 of the International Covenant on Civil and Political Rights pro-
vides:
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely
chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall
be by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his
country.
67
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5HVSHFWLYHO\DQGFRXQWULHVKDYHUDWLÀHGWKH,QWHUQDWLRQDO&RYHQDQWRQ
DQG FRXQWULHV KDYH UDWLÀHG WKH ,QWHUQDWLRQDO &RYHQDQW RQ
Civil and Political Rights (ICCPR) and the International Covenant on Economic,
6RFLDODQG&XOWXUDO5LJKWV,&(6&56HH6WDWXVRI5DWLÀFDWLRQVRIWKH3ULQFLSDO
,QWHUQDWLRQDO+XPDQ5LJKWV7UHDWLHVKWWSZZZXQKFKURUJ!2IÀFHRIWKH
United Nations High Commissioner for Human Rights.
– freedom of opinion and expression;

– peaceful assembly;
– freedom of association, participation in public affairs and
elections; and
– protection of minority rights.
7KH&RYHQDQWDOVRSURKLELWVÀYHFDWHJRULHVRIDFW
– arbitrary deprivation of life;
– torture, cruel or degrading treatment or punishment;
– slavery and forced labour;
– arbitrary arrest or detention and arbitrary interference with
privacy; and
– war propaganda, and advocacy of racial or religious hatred.
The Covenant on Economic, Social and Cultural Rights seeks to

promote and protect three types of human right:
– the right to work in just and favourable conditions;
– the right to social protection, to an adequate standard of living
and to the highest attainable standards of physical and mental
well-being; and
² WKHULJKWWRHGXFDWLRQDQGWKHHQMR\PHQWRIEHQHÀWVRIFXOWXUDO
IUHHGRPDQGVFLHQWLÀFSURJUHVV
In addition, the United Nations has also established, through the Gen-
HUDO$VVHPEO\GHFODUDWLRQVDFRGHRIFRQGXFWRUSULQFLSOHVVSHFLÀF
standards for the protection and enhancement of such vulnerable
groups as women, children, disabled persons, minorities, refugees
and migrant workers. Many of the standards have subsequently been
embodied in international agreements and more and more states have
become parties to those instruments.68
68
These instruments include: The Convention on the Status of Refugees (1951); the
International Convention on the Elimination of All Forms of Racial Discrimina-
tion (1996); the Convention on the Elimination of All Forms of Discrimination
against Women (1979); the Convention on the Rights of the Child (1989); the
International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families (1990).
,Q UHVROXWLRQV DGGUHVVLQJ VSHFLÀF KXPDQ ULJKWV VLWXDWLRQ LQ D

given country, the General Assembly has sometimes indicated its
preference for democratic governance. Thus, for instance, in a recent
resolution on the Islamic Republic of Iran, the Assembly “welcomed
the democratic progress [of] the parliamentary elections held during
February and March 2000, which expressed the true commitment
of the Iranian people to the democratic process”.69 In its resolutions
on the human rights situation in Myanmar, the General Assembly
“strongly urged” the Government of Myanmar to take all necessary
steps towards the restoration of democracy, in accordance with the
will of the people, as expressed in the democratic elections held in
1990.70
On a number of occasions, the Security Council has called for
WKHLQVWLWXWLRQRUUHVWRUDWLRQRIGHPRFUDF\LQDVSHFLÀFFRXQWU\)RU
instance, in 1994, when the Haitian government was taken over by
a coup, the Security Council by its Resolution 940 (1994), which
authorized a multinational force to restore the legitimately elected
3UHVLGHQWUHDIÀUPHGWKDWWKHJRDORIWKHLQWHUQDWLRQDOFRPPXQLW\
remained “the restoration of democracy in Haiti and the prompt return
of the legitimately elected President.”
The situation in Sierra Leone is another example. Following a coup
there in 1997, the Security Council invoked Chapter VII of the UN
Charter and called for the “restoration of the democratically elected
government and a return to constitutional order”.71 The Security Coun-
cil also expressed its strong support for the efforts of the ECOWAS
Committee to resolve the crisis in Sierra Leone and encouraged it to
continue to work for the “peaceful restoration of the constitutional
order,” including through the resumption of negotiations.72
Since 1994, the General Assembly has adopted a series of
resolutions in support of the new or restored democracies.73 These
69
A/RES/55/114, Situation of human rights in the Islamic Republic of Iran.
70
A/RES/55/112, Situation of human rights in Myanmar.
71
See Security Council Resolution 1132 (1997).
72
Ibid., operative paragraph 3.
73
See, for instance, General Assembly Resolutions A/49/30, A/50/133, A/51/31,
A/52/18, A/53/31, A/54/36, A55/43.
resolutions reinforce the links amongst those countries and also sup-
ply a legal basis for the United Nations system to provide assistance
in response to requests from interested governments. Furthermore,
these resolutions encourage the “established democracies” to promote
democratization and to “make additional efforts to identify possible
steps” to support the efforts of the new or restored democracies.74
The conclusions of the Conference of New or Restored Democra-
cies are usually transmitted to the United Nations and some of those
FRQFOXVLRQVDUHUHÁHFWHGLQWKHZRUNRIWKH*HQHUDO$VVHPEO\75
III. A suggestion
As mentioned, although the Community of Democracies has adopted
a list of measure that its participating states may take individually, the
Community itself does not take a collective decision on the measure
to be taken. The experience of OSCE showed that institutional meas-
ures are preferable to individual action.76 Perhaps the Community
could take this matter further. The Conference of New or Restored
Democracies has no such measure for handling unconstitutional
challenges in a participating state. This section discusses six core
issues most relevant to any further consideration that may be given
by these institutions in this regard:
– selecting a type of situation;
– role of the institution, active or passive;
– who may request for help;
– what may be done when received a request;
74
Ibid.
75
For instance, the 2000 Cotonou Conference had recommended the establishment
of a monitoring mechanism for implementing the Cotonou Declaration and
encouraged the UN system to mobilize resources to promote and strengthen
GHPRFUDWLFGHYHORSPHQW7KLVUHTXHVWZDVWKHQUHÁHFWHGLQ*HQHUDO$VVHPEO\
Resolution 56/96.The Resolution formally requests the Secretary-General to
examine options for strengthening the support provided by the UN system for
the efforts of Member States to consolidate democracy, including through the
designation of a focal point.
76
See supra section II.3, OSCE.
– reaching for consensus; and

– secretariat services.
The subject is no doubt highly political and requires careful con-

sideration. These issues are inter-related and should be considered
together.
1. Selection of situations
7KHÀUVWFRUHLVVXHLVWKHNLQGRIVLWXDWLRQVWKDWZRXOGEHDSSURSULDWH
for these institutions to consider. Two major types may be envisaged:
(i) situations involving more than one member government; (ii)
situations involving only one member government.
In a situation where more than one member government is
LQYROYHGSDUWLFXODUO\LQFDVHVLQYROYLQJDUPHGFRQÁLFWVWKH&RP-
munity/Conference would necessarily be forced to take sides or to
determine the rights and wrongs of its members. It would not seem
appropriate for the Community/Conference to get involved in this
kind of situation at its present stage of development.
But the second situation should be considered when only one
single member government is involved and there is no other states
are involved. But even in this case, the Community/Conference
should have no proprio motu power. In other words, the case must
be initiated by the government itself. The Community/Conference
must wait for the country concerned to approach it.
Examples of such situations would be: continuous disturbances
DQG WHQVLRQV ULRWV DQG DFWV RI YLROHQFH LQWHUQDO DUPHG FRQÁLFWV
(between governmental authorities and organized armed groups,
or between such groups), overthrow, attempted overthrow, planned
or threat of overthrow and other unconstitutional moves to acquire
power. These are supposedly unconstitutional challenges involving
no other member government. But if this is not the case, the nature of
the matter would be changed and the Community/Conference would
have to carefully consider its position.
Whether it would be appropriate for the Community/Conference
to consider a member government’s attempts to stay in power beyond
LWV FRQVWLWXWLRQDO WHUP ZRXOG DOVR SUHVHQW D GLIÀFXOW FDVH VLQFH LW
would require the institution to pass judgment on the constitutionality
of the acts taken by the government (e.g. postponing or suspending

elections, amending election procedures or changing the terms of
RIÀFHV$OOWKLQJVFRQVLGHUHGWKH&RPPXQLW\&RQIHUHQFHVKRXOG
avoid getting involved in such a situation until a much later stage
ZKHQVXIÀFLHQWH[SHULHQFHKDVEHHQDFTXLUHG
2. The institution’s role: passive or active

As mentioned, the Secretary-General of La Francophonie is given
the power to begin an investigation of a situation upon his or her
own initiative if he or she deems appropriate. This power allows the
institution to be active, rather than being passive and wait. Should
the Community/Conference adopt a similar role? Thus, an active
role by the Community/Conference would mean having the power to
LQLWLDWHRQLWVRZQDQLQYHVWLJDWLRQRID´VLWXDWLRQµZLWKRXWÀUVWEHLQJ
requested to do so by a member government. The Secretary-General
or the organ in charge of the initiation would have to be objective,
trustworthy and dependable. While active role is a good thing, the
question is whether these conditions could be met and whether the
participating states would allow themselves to be challenged in this
manner. This would also require a full-time Secretariat headed by a
Secretary-General. At the present stage, the Community/Conference
should be cautious and should limit its role to cases that are brought
to it by a member government concerned.
3. Who may request the Community/Conference’s support?

Consideration of the foregoing suggests that a request for support is
receivable only when it comes directly from the member government
concerned. Under this formula, the government concerned is entirely
free to decide if it needs help and when to approach the Community/
Conference about a situation. Obviously, no member government is
likely to request support if the situation is not critical in its view. But
it should be that government’s decision alone.
Upon this assumption, the Community/Conference would not
accept any request from an entity or faction within that state, since
such a request would constitute a challenge to the legitimacy of the
existing government. The Community/Conference should however
consider at some later point other alternatives for handling situations
that would require institutional action even if there is no request, for

instance, where the government is paralyzed. This would, however,
become more complicated and far-reaching. Perhaps this should
also be left to a later stage when the institution has acquired more
experience.
4. What should the Community/Conference do when a request

for support is received?
Unless the requesting government indicates otherwise, it seems that
the Community/Conference should communicate the request to all
its members. Each member would have the opportunity to consider
the request and decide what it can do and what the institution should
do.
It seems appropriate that the Community/Conference should also
communicate the request to other conferences, and international
DQGUHJLRQDORUJDQL]DWLRQVDFWLYHLQWKHÀHOGRIGHPRFUDF\7KHVH
organizations should be invited to consider the matter raised in the
request and disseminate the information to other interested bodies,
including civil society and the media. The objectives are to increase
the level of awareness of the situation and to mount an international
campaign to bring support to the affected government and to bring
pressure to bear on those who are acting unconstitutionally.
5. The process of consensus-searching

After the request for support has been communicated to all its
members, the question is then when the Community/Conference
itself should consider the request and decide if it should take any
additional steps.
In certain circumstances, it might be desirable to immediately
convene the whole membership. As a general rule, the request should
ÀUVWEHH[DPLQHGE\DVPDOOJURXSHJWKH%XUHDXRIWKH&RP-
munity/Conference) upon whose recommendation the plenary may
then meet. This procedure could protect the Community/Conference
so that it is held in reserve to handle situations truly requiring its
attention.
$VWKHSUHVLGLQJRIÀFHUWKH3UHVLGHQWRIWKH&RPPXQLW\&RQIHU-
ence should immediately consult the four Vice Presidents to seek their
views.777KLVJURXSRIRIÀFHUVVKRXOGPDNHWKHLUUHFRPPHQGDWLRQV
E\FRQVHQVXVRUWKHKLJKHVWPDMRULW\IRXURXWRIÀYHLQRUGHUWR
maintain the strength of its recommendation.
The group should be entirely free to consider all appropriate
measures that may make a difference to the situation, including the
need for further consultation with the neighbouring countries in the
region. Since the group may face various situations that are extremely
GLIÀFXOWWRSUHGLFWLQDGYDQFHWKHJURXSVKRXOGEHFRPSOHWHO\IUHH
to make its recommendation.78
After careful deliberation, the group should decide what recom-
mendation it should make, if any, and in what form the decision should
be announced, if it is to be announced. If it is so recommended by
the group, a special or emergency session of the Conference may be
convened to consider the recommendation.
The subject is highly political. In order to demonstrate strength
and unity, it is important that the Community/Conference should, in
such case, make its decision by consensus or near unanimity.
77
The practice of the Conference of New or Restored Democracies is to have a
President and four Vice Presidents.
78
For the group’s ease of reference, the following examples may be considered:
– statement or declaration in support of the constitutional government;
– visit to the country;
– inter-party dialogue;
– collection of relevant information;
– recommending NGO presence;
– appeals for restraint;
² ÀHOGSUHVHQFHE\GLSORPDWVPRQLWRULQJIDFWÀQGLQJ
– peace conference;
² JRRGRIÀFHVDQGRWKHUGLSORPDWLFLQLWLDWLYHV
– refusal of acceptance of any unconstitutional changes;
– non-recognition of the unconstitutionally constituted regime;
– recourse to regional or international organizations;
– recourse to the UN Security Council;
– no action to be taken.
6. Provision of secretariat services

The proposed processes call for the setting up of a secretariat to
provide concentrated services and to act as the centre of communica-
tion for the membership.79
Since 1997 the Conference of New or Restored Democracies have
been considering the setting up of a permanent secretariat to replace
the current ad hoc secretariat provided by the host government. 80
As an interim measure, the United Nations might be called upon to
perform this particular function.
In the meantime, a feasibility study should be prepared to explore
the various issues involved, including the possible funding of a
permanent secretariat by institutions or governments that are active
in promoting democracy.
The Conferences of New or Restored Democracies have continued
on an ad hocEDVLVVLQFH$IWHUIRXU&RQIHUHQFHVDQGÀIWHHQ
\HDUV·H[LVWHQFHWKHWLPHKDVFRPHWRWDNHVWHSVWRSODFHLWRQÀUPHU
ground which would advance its political standing, elevate its inter-
national legal status and would provide better services to its member
governments. In comparison, the Community appears more formal
and has adopted a list of measures that each participating government
is invited to consider taking if a member’s government is threatened
by unconstitutional moves. This is certainly an important achievement
in its own. It might be timely for it to advance further.
The Community/Conference should consider establishing a
working group composed of persons with knowledge and practical
experience in international relations and organizations to prepare a
feasibility study examining all relevant issues, including those already
mentioned above, taking into account its practice. Its report could
be submitted to the next meeting of the Community/Conference for
consideration.81
79
It does not have to create an institution for that. Its function could be performed
through, for instance, the Political Affairs Department of the UN Secretariat.
80
See Bulcarest Declaration.
81
The Community has already had its 2005 meeting but the Conference is meeting
in Qatar in June 2006. The working group’s report could serve as a working
document.
IV. Basic elements for a Constitution

7KH MXVWLÀFDWLRQ IRU WDNLQJ PHDVXUHV WR SURWHFW D GHPRFUDF\ LV
predicated on the assumption that there exists a sound constitutional
government. Although this assumption may not be true in all cases,
the Community/Conference should therefore consider formulating
constitutional guidelines to assist and strengthen those members who
are in the process of improving their constitutional instruments. For
this purpose, the following points are highlighted.
Democracy should be grounded in the Constitution which is the
source of authority upon which a nation is founded and from which
the government derives its legitimacy. The Constitution should
therefore:
– embody a set of fundamental norms for determining the rela-
tions between the people and government institutions and the
interaction among these entities;
– prescribe a list of individual rights and liberties that are protected
against other individuals and against the exercise of state power,
DQGDVVLJQVSHFLÀFIXQFWLRQVWRGLIIHUHQWVWDWHRUJDQVRURIÀFHV
delimit their powers and lay down their interrelationships.
As the foundation and supreme law of the land, the Constitution

must be respected under all circumstances and complied with by the
executive, the legislature and the judiciary, as well as by all the people
of the state. All citizens and government institutions should pledge
their loyalty to the Constitution, not to any individuals, government
and entities. The power is controlled, shared and distributed in such
a way that the holders of the power are each subjected to reciprocal
checks. They are therefore bound to cooperate with each other in
order to exercise political power.
The Constitution should entrust the legislature and judiciary with
the power to hold the executive branch accountable. Mechanisms and
procedures should be developed to implement that objective. Careful
balance should always be maintained between effective scrutiny and
the executive’s need for taking initiative. Over-regulation and probing
may result in inaction or more bureaucracy. Checks and balances
must be maintained.
The Constitution should prescribe a peaceful process for the change

of government through a set of rules binding both on those who are
in power as well as those who are seeking power. Under such rules,
WKHH[LVWLQJJRYHUQPHQWREWDLQVUHDVRQDEOHVHFXULW\RIRIÀFHDQGLV
protected from forcible overthrow, but is barred from staying in power
in violation of the constitutional conditions and is also prevented from
using illegal means against political rivals. Concurrently, the personal
security of those who are seeking power is guaranteed but they may
not use force either and they are bound to follow legal procedures
through which they may themselves constitute the government. They
would be punished if they resorted to force or any unconstitutional
means for the change of government.
Being the fundamental law of the nation, the Constitution requires
certainty and stability and should not easily be altered. The rule of
law is made a mockery if the Constitution can easily be changed to
suit political needs. But if it is too rigid, it loses the ability to change
when real need arises. The amending procedure should require a high
majority but at the same time pay attention to minority needs. Certain
constitutional provisions (e.g. civilian authority over the military)
should not be subject to amendment.
Chapter 8
18&/($59(5,),&$7,21,11257+.25($
AND IRAN
Berhanykun Andemicael*
1. Introduction
This article is based on two case studies that I have done in preparing
D ERRN RQ WKH SURVSHFWV RI HIIHFWLYH LQWHUQDWLRQDO YHULÀFDWLRQ IRU
the elimination of weapons of mass destruction1 to demonstrate the
urgent need to reverse current tendencies towards nuclear-weapons
proliferation.
The most pressing cases of nuclear proliferation today are Demo-
cratic People’s Republic of Korea (DPRK or North Korea) and Iran.
Both became parties to the Non-Proliferation Treaty (NPT) respec-
tively in 1985 and 1968. The two cases have similarities with Iraq in
that they all involved challenges to the effectiveness of international
YHULÀFDWLRQDQGFRPSOLDQFHDWWKHFRUHRIWKHFULVLV
As cases of creeping proliferation by NPT parties, DPKR and
Iran are different from the serious problems caused by Israel,
* Ph.D.; a scholar in international relations and a former Representative of the

Director General of International Atomic Energy Agency to the United Na-
tions.
1
Berhanykun Andemicael and John Mathiason, Eliminating Weapons of Mass
'HVWUXFWLRQ 3URVSHFWV IRU (IIHFWLYH ,QWHUQDWLRQDO 9HULÀFDWLRQ (London and
1HZ<RUN3DOJUDYH0DFPLOODQ
India and Pakistan which are not parties to the NPT and acquired
nuclear weapons without violating any treaty obligations. They have,
however, made a negative impact on the stability of the consensus
to sustain a universal non-proliferation norm. The cases of Iran and
1RUWK.RUHDLQYROYHGHÀDQFHRILQWHUQDWLRQDOOHJDOFRPPLWPHQWVE\
clandestine action. Iran is a case of gradual and systematic cheating
on NPT obligations, whereas North Korea withheld and concealed
YLWDOLQIRUPDWLRQIURPWKHVWDUW7KHLUQRZRSHQGHÀDQFHRIWKH7UHDW\
sets a bad precedent and would undermine the Treaty further if they
are not held accountable for their actions. This article will examine
the similarities and differences between the two cases, their strategic
and political objectives, the nature of their nuclear programs, and the
effectiveness of international safeguards. A constructive approach
will also be suggested to halt the dangerous proliferation trend and
to deter further erosion of the nuclear non-proliferation regime.
A peaceful resolution of the two problems by diplomacy and
YHULÀFDWLRQLVVWLOOSRVVLEOHSURYLGHGWKDWWKHÀYHQXFOHDUZHDSRQ
states,2 as NPT parties also as Permanent Members of the Security
Council, can rebound from their division over Iraq and act in concert
on those issues. Much depends on the resumption of constructive
leadership by the United States. Recent United States policies and
actions have been generally counterproductive, often displaying
hostility to multilateral solutions. The US mistake about Iraq’s non-
H[LVWLQJ:0'VWRFNSLOHVDVQRZFRQÀUPHGDIWHUDFRVWO\ZDUVKRXOG
provide a good lesson on the value of multilateral efforts to assemble
reliable evidence on proliferation threats. The key to compliance is
YHULÀFDWLRQVXSSRUWHGE\WKHOLNHOLKRRGRIWDNLQJFROOHFWLYHPHDVXUHV
in cases of non-compliance.
North Korea and Iran may provide a litmus test on the effectiveness
of the international system for non-proliferation, but the existing
mechanisms should be given a chance to operate fully without being
thwarted as in the case of Iraq. Moreover, to achieve a peaceful and
sustainable solution, we need an approach that is fair and even-
handed. The legitimate strategic concerns and other interests of the
states pursuing proliferation should be addressed before rushing to
2
China, France, Russia, the United States and the United Kingdom.
1XFOHDU9HULÀFDWLRQLQ1RUWK.RUHDDQG,UDQ 125
impose sanctions or apply military force. There is little prospect for

a permanent solution, as long the US and the other nuclear-weapon
states ignore the regional context and apply double standards in
applying non-proliferation principles.
2. Similarities and differences between the two cases

The cases of Iran and North Korea can be compared in terms of
strategic and political issues, the nature of each nuclear program, and
the effectiveness of the international measures employed. While the
two cases differ considerably as regards their underlying strategic
and political contexts, they demonstrate similarities with respect to
YHULÀFDWLRQDQGFRPSOLDQFHLVVXHV7KH\ERWKUHSUHVHQWDYLRODWLRQRI
non-proliferation obligations, both under the NPT and the safeguards
agreements concluded with the International Atomic Energy Agency
(IAEA).
Strategically speaking, the North Korea case is unique in that issues
left over from the Korean War continue to dominate today’s situa-
tion. Korea remains a divided country as a peninsula split between
two contending regimes – the Democratic People’s Republic of
Korea (DPRK) in the north and the Republic of Korea in the south.
While the North seeks to preserve its Stalinist Communist system,
the South maintains a prospering democracy protected by a large
American military presence. In the endless state of armistice since
1953, North Korea has relied on a huge military force protected by the
People’s Republic of China (earlier also by the Soviet Union), while
confronting the combined forces of South Korea and the US, the latter
deploying over 30,000 troops. Despite its severe economic problems,
North Korea has deployed a massive force, set in a confrontational
mode to face powerful US and Korean forces deployed for contain-
ment. While itself pursuing a provocative military strategy, North
Korea blames the US military presence as the central issue causing
its offensive posture.
Iran’s security concerns are more complex but they appear to
KDYHPRUHWRGRZLWKLWVKLVWRU\RIPXWXDOWKUHDWDQGHYHQFRQÁLFW
with Iraq than with any other problems, including those with the
United States and Israel. Its tension with the US cannot, of course,
be underestimated: still unresolved are the enmities caused by Iran’s

unprecedented holding of US hostages in 1979, followed by its open
support of Islamic fundamentalists campaigns abroad, especially
Hezbollah’s activities in Lebanon and its attacks against Israel. While
Iran’s setbacks in its war against Iraq may have blunted its funda-
mentalist offensive, its perceived vulnerability appears to underline
the necessity of effective military defence against any unfriendly
neighbour. Thus, for the Ayatollahs of Iran, Saddam Hussein’s Iraq
remained the archenemy. For its part, a weakened, post-Gulf War Iraq
continued to fear its hostile neighbour to such an extent that we now
know Saddam Hussein had to bluff about possessing some weapons
of mass destruction and decided to stonewall and mislead international
inspectors at the risk of provoking a US invasion.
Even though Ayatollah Khomeini and his successors were initially
not interested in the former Shah’s abandoned program for nuclear
weapons, their skepticism about the effectiveness of Iraq’s disarma-
ment process may well have induced revival of the old program under
the cover of a peaceful one. Iran has always stressed its right to acquire
nuclear and other advanced technology. Even after the disarmament
RI,UDTDVFRQÀUPHGWRGD\LWVWLOOÀQGVLWVHOIVWUDWHJLFDOO\YXOQHUDEOH
facing a strong US military presence in Iraq and Afghanistan, at the
junction of two regions inhabited by newly emerged nuclear powers
outside the framework of the NPT – India and Pakistan on one side,
and a US-supported state of Israel on the other.
The following questions are often asked about the nuclear activities
of Iran and North Korea. Why does Iran, an oil-rich country, need nu-
clear power plants if not to use them as a path to a nuclear bomb? Why
does North Korea, with a failing economy and a starving population,
use scarce resources to develop a nuclear bomb. There are no easy
answers. Ambition for technological advancement and development
may be part of the answer but do not provide a satisfactory explana-
tion. Rightly or wrongly, the two countries perceive a threat to their
sovereignty just as their neighbours consider them as the source of
WKHWKUHDWLQWKHÀUVWSODFH,QWKLVFRQWH[WDQ\DPELWLRQWKDW,UDQDQG
North Korea may have for acquiring nuclear weapons for deterrence
RUSUHVWLJHDQGLQÁXHQFHVKRXOGQRWVRXQGVRVWUDQJHFRQVLGHULQJWKH
examples set by the members of the nuclear club. At the very least,
they can expect that the development of a technological capability,

even short of weapons, might serve as a bargaining chip in their quest
for security assurances. Thus, as we explore ways towards a real
solution, it is essential to understand the issue of threats as perceived
by each side. The ill-conceived and costly war in Iraq illustrates that
a military solution is not a viable option in facing Iran, and is even
less feasible as regards North Korea where the crisis might result in
a military confrontation between China and the US.
3. Nature of their nuclear programs

The North Korean nuclear program started in the 1980s as a peaceful
activity with the assistance of the Soviet Union. With Soviet encour-
agement, North Korea acceded to the NPT in 1985. However, no
safeguards agreement was concluded with the IAEA until 1992 when
the US announced the removal of its tactical nuclear weapons from
6RXWK.RUHD7KHÀUVWUHTXLUHPHQWRIWKHDJUHHPHQWZDVIRU1RUWK
Korea to provide a complete and accurate declaration of its nuclear
SURJUDP7KH$JHQF\ZDVVXSSRVHGWRWDNHDVHULHVRIYHULÀFDWLRQ
measures: initial ad hoc inspections to verify the declarations and
to install a system for future inspections; obligatory special inspec-
tions in case of inconsistencies that could not be resolved through
consultations; and subsequent routine inspections to ensure ongoing
compliance with non-proliferation obligations.
At the outset, the key issue revolved around North Korea’s conceal-
ment of information on its production of plutonium that was subject
to safeguards. It had then a few nuclear facilities in operation. These
included two small research reactors, one of them a small, 5 MWe
power reactor of the graphite-moderated type, which was suitable
for plutonium production; and the second, a fuel fabrication plant. It
was also working on a reprocessing plant for extracting plutonium (a
radiochemical laboratory). Moreover, it had an ambitious construction
plan for two large graphite-moderated power reactors (50 MWe and
0:HZKLFKFRXOGHYHQWXDOO\SURGXFHHQRXJKSOXWRQLXPIRUÀYH
WRWHQQXFOHDUZDUKHDGVSHU\HDU7KHSRLQWRIFRQÁLFWZDVUHDFKHG
when initial inspections revealed a major inconsistency: between the
LQVLJQLÀFDQWTXDQWLW\RIJUDPVRISOXWRQLXPGHFODUHGE\1RUWK
Korea as having resulted from a single experiment on damaged fuel

URGVDQGWKHVXVSHFWHGSURGXFWLRQRIVLJQLÀFDQWTXDQWLWLHVSURGXFHG
on at least three occasions, as indicated by the IAEA’s analysis of
traces of nuclear waste. Whether the undeclared plutonium amounted
to grams or kilograms could only be determined by an analysis of the
ZDVWHVLWHV1RUWK.RUHDUHMHFWHGWKHÀQGLQJVDQGEORFNHGDFFHVVWR
the waste sites, and persisted even after the Director General of the
IAEA activated the rarely used procedure of special inspection with
the backing of his Board of Governors.
,UDQZDVQRWDFDVHRIRSHQGHÀDQFHEXWUDWKHURQHRIUHVWULFWLRQ
of cooperation in order to conceal some important components of
its nuclear activities. The problem occurred after over a decade of
satisfactory transparency, facilitated by Iran as an NPT party subject
to comprehensive IAEA safeguards. Credible signs of a modest clan-
destine program were revealed in 2002, thanks to human intelligence
from opposition groups. In 1979, Khomeini’s Iran had inherited
two partially completed German-supplied nuclear power reactors at
Bushehr, which the new regime had initially decided to put aside. It
was not until 1991 that Iran decided to revive the program by making
a deal with the Russian Federation to complete the construction of one
of the reactors to be supplied with Russian uranium fuel. In response
to US concern about Iran’s nuclear ambition, Russia dropped its
plan also to assist Iran in uranium enrichment and decided to limit
its technical assistance essentially to training Iranians to operate the
reactor. Like a US-made light-water reactor, the Iranian 1000 MWe
pressurized-water reactor is not suitable to produce weapons-grade
material.
When Iran admitted having engaged in certain concealment
activities, it also decided to permit IAEA inspectors to visit most of
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7KHÀUVWWKUHHZHUHUHDGLO\DFNQRZOHGJHGE\,UDQQDPHO\
– unreported processing of imported uranium, including separa-
tion of small amounts of plutonium;
– unreported centrifuge enrichment of uranium; and
– failure to report at least three undeclared facilities used for
enrichment, processing or storage.
However, Iran was uncooperative as regards the other two viola-

tions:
– Iran failed to provide a credible explanation for the traces
of highly enriched uranium revealed by sampling. The issue
was whether this pointed to a concealed program of domestic
processing or was merely the result of contamination caused
by previously used imported centrifuges, as claimed by Iran.
– Iran remained reluctant to provide design information relat-
ing to its technology for uranium enrichment and plutonium
production.
9HULÀFDWLRQDQGFRPSOLDQFHLVVXHV
)URPWKHSHUVSHFWLYHRILQWHUQDWLRQDOYHULÀFDWLRQDQGFRPSOLDQFHWKH
two cases are in sharp contrast: Iran remains progressively coopera-
tive, hoping to reduce the contentious issues to a level amenable
to diplomacy. On the other hand, North Korea keeps escalating
the confrontation, thus undermining the prospects for a diplomatic
solution. The contrasting evolution can be illustrated by outlining
the phases of each crisis.
Four phases of the Korean crisis 3

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to the Security Council. On 1 April 1993, the Board of Governors
found North Korea in breach of its safeguards obligations and reported
the its rejection of special inspections to the Security Council. The
Council’s initial cautious approach was to “invite” North Korea to
IXOÀOLWVREOLJDWLRQVZKLOHUHWDLQLQJWKHLVVXHRQLWVDJHQGD%HFDXVH
of the ongoing obstruction, the Director General was able to persuade
the Board (with the acquiescence of some members who were non-
3
A comprehensive analysis of the origins of the North Korean crisis is given in
Joel S. Wit, Daniel B. Poneman and Robert L. Gallucci, Going Critical: The
First North Korean Nuclear crisis (Washington DC: The Brookings Institu-
tion, 2004). For a thoughtful commentary of later developments, see Joseph
Cirincione and Husain Haqqani, “Nukes Endanger Asia’s Future,” Los Angeles
Times, 29 September 2003.
parties to the NPT) of the necessity to mobilize political support and

pressure including possibly through sanctions.
The second phase involved a diplomatic initiative by the US to
persuade North Korea to retract its announcement of withdrawal
from the NPT before the 90-day deadline. As a result of bilateral
negotiations with the US, North Korea decided on the eve of the
deadline to suspend the “effectuation” of its withdrawal from the
NPT. However, it continued to frustrate IAEA inspections and, even
ZRUVHLWGHÀDQWO\UHPRYHGLUUDGLDWHGIXHOIURPWKHUHDFWRULQDPDQ-
ner that would undermine future prospects of retracing the history
of the reactor core. Tension escalated and the Board of Governors
suspended all technical assistance to North Korea, provoking an
extreme response from the latter. In June 1994, North Korea gave
the statutory one-year notice of withdrawal from the Agency, while
claiming to be in an ambiguous status within the NPT.
The third, more positive phase began with intensive high-level
talks between the US and North Korea, which achieved a compromise
solution in the form of an “Agreed Framework Agreement”. It was
signed in October 1994 and was accepted promptly by both the
Security Council and the IAEA Board of Governors. The agreement
ZDVHVVHQWLDOO\GHVLJQHGDVDYHULÀHG¶IUHH]H·RI1RUWK.RUHD·VSUROLI-
eration-prone nuclear program, matched by a US supply of heavy oil
to compensate for the energy that would have been produced by the
controversial facilities. This would allow time to replace them by a
less risky nuclear power program. This assistance was to be provided
by a consortium, including the US, the Republic of Korea and Japan
as principals, and also by a number of European and other Western
countries. The IAEA’s role was to monitor compliance with the freeze
and to continue inspection of only declared activities. North Korea
would eventually dismantle all the graphite-moderated plants under
,$($YHULÀFDWLRQDQGUHSODFHWKHPZLWKWZRODUJHOLJKWZDWHUUHDFWRUV
funded by the consortium. Although an unconventional monitoring
WDVNZDVHQWUXVWHGWRWKH$JHQF\LWVQRUPDOVDIHJXDUGVYHULÀFDWLRQ
remained provisionally reduced.
To the disappointment of the IAEA, North Korea had declared
WKDWRQO\ZKHQDVLJQLÀFDQWSRUWLRQRIWKHOLJKWZDWHUUHDFWRUZDV
completed would it come into full compliance with its safeguards
DJUHHPHQW6SHFLÀFDOO\LWZRXOGDOORZFRPSUHKHQVLYHLQVSHFWLRQV
just before the delivery of key nuclear material and components for
installation in the reactor core. This meant that the IAEA would have
WRZDLWIRUDWOHDVWÀYH\HDUVWRUHVROYHWKHRXWVWDQGLQJLQFRQVLVWHQ-
cies and then proceed to verify the accuracy and completeness of a
new comprehensive declaration. This phase of restricted monitoring
worked rather well at the beginning but was gradually undermined by
political tension and suspicions about North Korea’s illicit activities
outside the frozen program. The aversion of the incoming Bush
Administration to the terms of the Agreed Framework negotiated
by its predecessor was also counterproductive, even detrimental,
considering the signs of North Korean backsliding.
We are now in the fourth phase. After almost a decade of effort,
WKHZKROHDUUDQJHPHQWKDVFROODSVHGOHDYLQJDKDOIÀQLVKHGSURMHFW
behind. The backward slide was aggravated by North Korea’s 2003
withdrawal from the NPT. North Korea’s withdrawal was accom-
panied by its expulsion of IAEA inspectors as it made the shocking
claim that it had achieved a bomb-making capability beyond the
scope of their monitoring. In the post-Iraq war environment, there is
now some diplomatic effort to diffuse the crisis. The aim is to work
out new arrangements towards a denuclearized Korean Peninsula,
with appropriate security assurances and normalization of relations
between the parties concerned. Rounds of talks are in progress among
the countries with direct security interests – the US, Russia, China,
Japan, South Korea and North Korea.
The Iraq case had demonstrated that adequate legal authority and
political support from higher bodies was necessary to cope with a
regime determined to obstruct inspections. These factors, which
UHLQIRUFHWKH$JHQF\·VFDSDFLW\WRFRQGXFWHIIHFWLYHYHULÀFDWLRQZHUH
EDVLFDOO\ODFNLQJLQWKHFDVHRI1RUWK.RUHD:LWKRXWÀUPVXSSRUW
from the Council, North Korea was thus able to nullify the role of
the IAEA, even at the risk of war. Any prospect of reversing North
.RUHD·VSUROLIHUDWLRQWUHQGDQGLWVUHMHFWLRQRIYHULÀFDWLRQPHDVXUHV
ZLOOGHSHQGSDUWO\RQWKHLQÁXHQFHRIRXWVLGHSRZHUVSDUWLFXODUO\
RQWKHFDSDFLW\IRUFRKHVLYHLQLWLDWLYHVE\WKHÀYHLQWHUHVWHGVWDWHV
currently engaging it in negotiations. Of these, China, Russia and
WKH86DUHZHOOSODFHGWRPRELOL]HXQLÀHGVXSSRUWIURPWKH6HFXULW\
Council, of which they are Permanent Members.
Two phases of the Iran case 4

The two phases represent the passive and active phases of Iran’s
cooperation with inspectors. Phase one began in February 2003 in
a somewhat paradoxical situation. This was a time when the United
1DWLRQVRSHUDWLRQRIYHULÀHGGLVDUPDPHQWLQ,UDTFRQGXFWHGE\WKH
,$($DQGWKH8QLWHG1DWLRQV0RQLWRULQJ9HULÀFDWLRQDQG,QVSHFWLRQ
Commission (UNMOVIC), was being pushed aside by the US to
PDNHZD\IRUWKH868.LQYDVLRQRIWKDWFRXQWU\<HWWKH'LUHFWRU
General of IAEA, Mohamed ElBaradei, managed then to obtain an
invitation from Iran to consult personally with its authorities about
new allegations of Iranian non-compliance. He was accompanied
by an inspection team, which was given access to some undeclared
suspected sites. Backed fully by the Board of Governors, he sought
unfettered access to all suspected sites. It was during his second
visit, in July, when wider access and intensive inspection by his
WHDPSURGXFHGWKHGLVWXUELQJÀQGLQJVFRQVWLWXWLQJWKHÀYHYLRODWLRQV
OLVWHGDERYH,UDQ·VSDVVLYHFRRSHUDWLRQZDVMXVWVXIÀFLHQWWRPDNH
up for its past reporting failures regarding the activities in its three
XQGHFODUHGQXFOHDUIDFLOLWLHV%XWLWZDVQRWVXIÀFLHQWZLWKUHVSHFW
to design information, the nature of Iran’s illicit nuclear transactions
and the extent of any domestic activities to enrich uranium.
The second, active phase began in September 2003 when the Board
of Governors showed a determination to end all concealment efforts.
The requirement was that Iran’s cooperation should become proactive
and consistent. The Board called upon Iran to provide “accelerated
cooperation and full transparency” in the spirit of the Additional
Protocol for strengthening the traditional safeguards, and to do so
even before Iran completed the process of ratifying the instrument.
The Board also requested Iran to suspend further enrichment and
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GOV/2004/83, 15 November 2005: “Implementation of the NPT Safeguards
Agreement in the Islamic Republic of Iran; Report of the Director General.”
with every safeguards requirement. The request was unprecedented,

since the NPT entitles Iran as a State Party to enrich and reprocess
uranium and also to operate research reactors that utilize isotope
products of enriched uranium, provided that the activities are declared
and monitored. Under the original safeguards agreement, a state is
also permitted to build its own reactors as long as it declares them six
months before loading the nuclear material. Iran was asked to accept
the new conditions provisionally and to freeze the situation in order
to allow some time for IAEA’s inspectors to determine when, why
and to what extent it had been engaged in the violations.
It was at this point that France, Germany and the UK, which had
recently patched up their differences over the Iraq war, weighed in to
facilitate Iran’s full cooperation in order diffuse the crisis before the
US pushed the issue up to the Security Council. On 21 October, the
Foreign Ministers of the three European Union states (EU-3) were
able to make a deal with Iran on three points. Iran agreed:
– to cooperate fully with the IAEA and to accept provisionally
WKHUHLQIRUFHGSURFHGXUHVRIVDIHJXDUGVSHQGLQJUDWLÀFDWLRQRI
the Additional Protocol;
– to resolve all outstanding issues and correct any possible
failures; and
– to suspend voluntarily all uranium enrichment and processing
activities, as recommended by the Board.
The EU-3 reciprocated as follows: as a reward for the resolution

RI DOO RXWVWDQGLQJ LVVXHV WKH\ UHDIÀUPHG ,UDQ·V ULJKW WR SHDFHIXO
nuclear energy and promised to facilitate easier access to supplies
and technology for power generation.
7KH,UDQVLWXDWLRQWKXVHQWHUHGLWVÀQDOSKDVHZLWKDSRVLWLYHDQG
sustained trend towards full cooperation: Iran has now signed the Ad-
GLWLRQDO3URWRFRODQGLVSURFHHGLQJWRZDUGVUDWLÀFDWLRQKDVSURYLGHG
access to all requested sites, documentation and personnel and has
provisionally suspended uranium enrichment and reprocessing as a
FRQÀGHQFHEXLOGLQJPHDVXUH+RZHYHUIXOOWUDQVSDUHQF\LV\HWWREH
achieved, especially as regards the pattern of its illicit transactions
and the product of its technological acquisitions. Despite the greater
access granted in 2004, the IAEA needs more active cooperation
from Iran in order to draw a full picture of the undeclared activities

of the past. Even more formidable is the dilemma facing Iran on how
to respond satisfactorily to the US demand to renounce permanently
its uranium enrichment rights in exchange for promises of assured
supply of nuclear fuel by foreign states. The progress achieved so
IDULVVLJQLÀFDQW+RZHYHULWPD\QRWQHFHVVDULO\REYLDWHWKHQHHG
to refer the problem to the Security Council, should Iran backslide,
baulking at setbacks in the negotiations with the European states or
taking any hostile US pronouncements as new threats. Much will
GHSHQGRQWKHH[WHQWRIVHFXULW\DVVXUDQFHVDQGWHFKQRORJLFDOEHQHÀWV
that EU-3 might guarantee, with the support or, at least, acquiescence
of the US.
5. Looking ahead
The crises in North Korea and Iran pose a threat not only to the
integrity of the nuclear non-proliferation regime but potentially also
to the maintenance of international peace and security. However,
they still remain amenable to diplomatic resolutions, provided that
DGHWHUPLQHGHIIRUWLVPDGHE\WKH86DQGRWKHULQÁXHQWLDOVWDWHV
within the framework of the UN Charter. Diplomatic efforts could
succeed if the arms control obligations enshrined in the NPT are
pursued in full recognition of all legitimate national interests and
sovereignty concerns.5 In this light, chauvinist or ideological policies
and pejorative labels like “rogue states” are futile smoke screens at
best and counterproductive at worst.
The two cases involve both national and regional issues but they
also have a global dimension bearing upon the future of the nuclear
non-proliferation regime. Any approach that seeks a peaceful resolu-
5
Two recent studies are of particular relevance in addressing the two cases:
United Nations, A More Secure World: Our Shared Responsibility, Report of the
Secretary-General’s High-level Panel on Threats, Challenges and Change (New
<RUN81'3,SSDQG*HRUJH3HUNRYLFK-HVVLFD70DWKHZV
Joseph Cirincione, Rose Gottemoeller and Jon B. Wolfsthal, Universal Compli-
ance: A Strategy for Nuclear Security (Washington DC: Carnegie Endowment
for International Peace, 2004), pp. 169-190.
tion would need to articulate the interests to be reconciled, the policies

to be adjusted and the diplomatic process to be followed.
North Korea
The paramount issue regarding North Korea is mutual security in
the Korean Peninsula, which could be enhanced by denuclearization
and by upgrading of the existing unstable armistice to a formal peace
treaty. This would ultimately call for a high-level bilateral dialogue
between North Korea and the US, the latter in close consultation with
its South Korean ally. Two basic questions are:
– Under what conditions would the US agree to have a funda-
mentally different relationship with North Korea?
– Under what conditions would North Korea agree to dismantle
its nuclear weapon capabilities and establish peaceful and
cooperative relations with South Korea?
The outlines for a constructive approach already exist; what is lacking

LVPXWXDOWUXVWDQGÁH[LELOLW\LQWKHHVWDEOLVKHGSROLFLHVWRVXVWDLQ
serious negotiations. For both sides, a constructive approach would
KDYHWREDODQFHEHQHÀWVDJDLQVWWKHFRVWVRIQRQFRRSHUDWLRQ,QFHQ-
tives from the US side might include abandonment of any design or
expectation to induce regime change, provision of security assurances
and generosity with emergency assistance, which may all lead to a
normalization of relations. If North Korea remains uncompromising,
the US can then revert to the Security Council to build a consensus
IRU GHÀQLQJ WKH VLWXDWLRQ DV D WKUHDW WR LQWHUQDWLRQDO SHDFH DQG
security. This could entail collective measures ranging from a strict
arms embargo to diplomatic and economic sanctions. Under these
circumstances, the US would be expected to reinforce its allies in the
area and enhance its deterrent capabilities in the Korean Peninsula.
The existing diplomatic dialogue with North Korea, involving the
US, North Korea and also China, Russia and Japan, needs deeper
commitment, and needs to be supplemented by a second track of
US dialogue with North Korea. It is also important to link the whole
process with the Security Council by regular reporting which may
facilitate the Council’s eventual endorsement of the outcome.
Iran
Progress regarding Iran would also depend on how effectively the
concerned states can cope with the central issues between them,
particularly in addressing the underlying problems, in balancing the
FRVWV DQG EHQHÀWV RI FRPSURPLVH VROXWLRQV DQG LQ HPSOR\LQJ WKH
most promising diplomatic approaches.
Despite the demise of the Saddam Hussein’s Iraq, a nuclear-armed
Iran may well be the tipping point in a nuclear arms race in a Middle
East still fraught with uncertainties and tensions. The main issues
include uncertainties about the future direction of Iraq, insecurities
felt by the smaller Persian Gulf states vis-à-vis both Iraq and Iran,
worries expressed about a large permanent US military presence in
the region and concerns about assertive policies of a nuclear-armed
Israel. Iran has maintained an ambiguous policy: whether to keep
its nuclear program peaceful or to avail itself of the nuclear weapon
option despite its NPT obligations. If Iran pursues the latter option,
that would undoubtedly exacerbate the delicate regional security and
foreclose any hope of persuading Israel to renounce nuclear weapons.
It would also deeply undermine the NPT regime. On the other hand, if
Iran determines that its overriding interest lies in nuclear technology
only for peaceful purposes, then it should remove any ambiguities and
IRFXVRQVHFXULQJDÀUPJXDUDQWHHRIVXSSO\7KH137·VSHUPLVVLYH
rules based on the intended purpose are problematic. Iran’s inten-
WLRQVKDYHEHHQGLIÀFXOWWRIDWKRPDQGLWVQXPHURXVYLRODWLRQVRI
safeguards obligations have cast doubts about its promises for the
future. It has thus placed itself in a special category of states requir-
ing additional restraints and constant vigilance. To be sustainable,
the solution should not be punitive but one that is negotiated for
WKHORQJWHUPEHQHÀWVRI,UDQDQGWKHUHJLRQDVDZKROH,WVKRXOG
also be sought in the broader context of reinforcing the global non-
proliferation regime.
A sound solution would depend on diplomatic progress on many
OHYHOV7KHÀUVWUHTXLUHPHQWZRXOGEHDEUHDNWKURXJKLQ,UDQ·VWDONV
ZLWK WKH (XURSHDQ IDFLOLWDWRUV D EDODQFHG FRVWEHQHÀW SDFNDJH LV
underway, lately with a cautious endorsement by the US. The emerg-
ing deal is: guaranteed supply of strictly peaceful nuclear technology
to Iran if it agrees to forgo having its own uranium enrichment and
separation processes. Any threat of sanctions would then be removed

with additional inducements for technical and economic cooperation.
However, success in the talks would also depend on how effectively
the broader sovereignty and security concerns are met. To persuade
Iran to abridge its NPT rights beyond a provisional arrangement, it
is essential to avoid singling it out. This could be done by embarking
on a revision of the NPT rules for all parties in order to reduce the
ULVNRIZHDSRQL]DWLRQE\DQ\RIWKHP,UDQPD\VHUYHDVWKHÀUVWVWHS
towards tightening the NPT restrictions and also as an additional step
after the successful disarmament of Iraq towards the creation of a
nuclear weapon-free zone in the Middle East.
These measures are achievable if progress is also made at the
SROLWLFDOOHYHOWRUHGXFHPXWXDOPLVWUXVW&RQÀGHQFHEXLOGLQJZRXOG
require a political deal whereby Iran would renounce any support to
groups involved in terrorist activities abroad in exchange for a US
renunciation of any attempts for regime change in Iran.
Chapter 9
81,7('1$7,2163$571(56+,36:25.,1*
TOGETHER FOR A BETTER WORLD
Amir A. Dossal*
Introduction
Partnerships for development are not new. What has emerged in the
past few years at the United Nations is a focus on building innovative
partnerships to achieve peace and broad development goals. Two key
trends have driven this enhanced partnership agenda: the increasingly
complex and interconnected nature of today’s global challenges,
DQGWKHJURZLQJLQÁXHQFHDQGHQJDJHPHQWRIQRQVWDWHDFWRUV:LWK
numerous successful innovative partnerships underway, the United
Nations is now working to scale up promising approaches and to learn
from acquired experience. The United Nations Fund for International
Partnerships (UNFIP) plays a lead role in forging new partnerships
in development assistance. Building partnerships for development
with the private sector and civil society, UNFIP mobilizes intellectual
capital, technology, expertise, delivery systems and other resources,
in addition to funding, in order to advance global causes.
Many issues that once were treated as national or regional are now
global in scope and impossible for any one state or even the United
Nations to address on its own, and so require integrated approaches
* Executive Director, United Nations Fund for International Partnerships (UNFIP).
to problem-solving. Finding solutions to problems like HIV/AIDS,

environmentally sustainable economic development, poverty eradi-
cation, peace and security, human rights, good governance and the
digital divide, for example, are too vast and complex to be tackled
by the public sector or private sector alone. Peace and poverty
eradication are unlikely to occur in the absence of good governance
or respect for human rights. Environmental degradation is due in part
to poverty and industrial over-development, and is exacerbated in
DUHDVRIFRQÁLFW,QWXUQHQYLURQPHQWDOGHJUDGDWLRQRIWHQGHHSHQV
poverty. Today’s challenges are an interconnected web of issues that
need to be addressed holistically, which is best achieved through
innovative partnerships.
The United Nations has been building partnerships since it was
established in 1945. But as globalization and information technolo-
gies draw the peoples of the world closer, so do they knit together
social, economic, political and cultural challenges. It is increasingly
GLIÀFXOWWRZRUNLQDQ\RQHRIWKHVHDUHDVZLWKRXWFRQVLGHULQJWKH
impact or repercussions in another. From this, a space has formed
that did not exist before, a space where public-private partnerships
among governments, civil society, foundations and the private sector
are gaining recognition as a promising approach for addressing social
FKDOOHQJHV/HGE\816HFUHWDU\*HQHUDO.RÀ$QQDQWKH´QHZµ
United Nations is forging innovative partnerships in development
assistance to improve the quality of life of the underprivileged and
to protect the environment.
$VWKH816HFUHWDU\*HQHUDO.RÀ$QQDQUHPDUNHGDWWKH
World Economic Forum:
“Creating wealth, which is business’s expertise, and promot-
ing human security in the broadest sense, the UN’s main
concern, are mutually reinforcing goals. Thriving markets
and human security go hand in hand. A world of hunger,
poverty and injustices is one in which markets, peace and
freedom will never take root.”
These words have taken on even more importance in a post-11 Sep-

tember world. What was witnessed on that day was not just the murder
of innocents from over 60 nations, but also the now inseparable links
9. United Nations Partnerships: Working Together for a Better World 141
between politics and economics, between global markets and local

cultures, and between public policy and private interest. Since then
a complex world has become even more uncertain and social and
economic interrelationships more pronounced.
This was not always the case. Towards the end of the Cold War, the
roles and responsibilities of governments, the private sector and civil
VRFLHW\ZHUHZHOOGHÀQHG+RZHYHUWKHSDVW\HDUVKDYHVHHQDQ
explosion of civil society organizations worldwide, the globalization
of business, the revolutionary force of communications and informa-
tion technologies – and this has changed the perspective on what
governments can and should do. New networks between the public
DQGSULYDWHVHFWRUVKDYHHPHUJHGIURPWKLVUHYROXWLRQUHGHÀQLQJ
and, at times, clouding, the previously clear roles of government,
business and civil society.
In light of these developments, private enterprise has an increas-
ingly important role to play. Trade and technology transfer not only
create business opportunities and wealth, but can also help to weave
nations together. Even before 11 September, global companies were
being asked to think beyond the boardroom and bottom line, to act
responsibly and contribute to broader societal goals. At the same time,
FRPSDQLHVZLWKDJOREDOUHDFKDUHÀQGLQJQHZPDUNHWRSSRUWXQLWLHV
by engaging in the developing world.
UN partnerships
The UN, composed of 191 Member States, provides the opportunity
for a truly global partnership. No other organization has the same
combination of reach, experience and expertise. For instance, the
United Nations Development Program (UNDP) alone has a presence
in 166 countries. By working together to achieve common objec-
WLYHVWKH81EHQHÀWVIURPWKHFRPSDUDWLYHDGYDQWDJHVRIHDFKRI
its partners. UN partnerships range from global multi-stakeholder,
multi-issue initiatives to local projects between two partners. They
can be short-term humanitarian or long-term development projects.
Some partnerships take a holistic approach to social, environmental
DQGHFRQRPLFLVVXHVZKLOHRWKHUVIRFXVRQVSHFLÀFLVVXHVRUDUHDV
UN partnerships have one or more of the following purposes:

– policy dialogue;
– advocacy;
– mobilizing private funds;
– information and learning; and
– operational delivery.
3DUWQHUVKLS SURMHFWV DUH GHYHORSHG ZLWK ZHOOGHÀQHG WLPHERXQG

goals to achieve success in a targeted area. Strategic global partner-
ships, by contrast, have the potential for multiple stakeholders to
create broad and sustainable progress by working simultaneously on
different types of activity, such as advocacy, leveraging funds and
harnessing private sector and civil society expertise to design new
approaches to operational delivery. Their goal is a win-win situation
where everyone gains.
Millennium Development Goals and business

The Millennium Development Goals (MDGs) are the blueprint for
UN action in promoting development and serve as the framework for
UN partnerships. In September 2000, 189 world leaders at the United
Nations Millennium Summit agreed to the MDGs, a set of time-bound,
measurable goals and targets for combating poverty, hunger, disease,
illiteracy, environmental degradation and discrimination against
women to be reached by 2015. The goals provide a framework of
accountability and transparency by setting forth concrete targets,
and also help strategically focus programs and grants. To meet these
challenges the UN and its Member States need the infrastructure and
intellectual capital of the private sector. UNDP Administrator Mark
Malloch Brown once said that:
“the real power of the MDGs – what makes them different
from previous development initiatives – is political not
programmatic. [W]e in the UN, and our partners from the
World Bank and other development agencies can – and are
– aligning our main policy instruments and operational work
… behind the MDGs.”
One goal in particular, the eighth, entitled “Develop a Global Partner-

ship for Development,” is the key to achieving all the other MDGs.
This goal is about partnerships making business and civil society part
of the solution. This is not only the best chance for achieving goals;
it may also be the only chance of meeting these global targets, as no
one entity could achieve change of such magnitude.
Conversely, the MDGs are also important to business. There are
growing international demands for companies to be more transparent
and more accountable for their economic, social and environmental
impact. There are three broad reasons why private industry’s support
RIWKH0'*VPDNHJRRGEXVLQHVVVHQVH7KHÀUVWUHDVRQLVLQYHVW-
ing in a sound environment in which to do business, the second is
managing the direct costs and risks of doing business, and the third
is harnessing new business opportunities.
Business can make a contribution to the achievement of the
MDGs through their core business activities, social investment and
philanthropic activities, and engagement in public-policy dialogue.
7KHULVLQJLQÁXHQFHDQGHQJDJHPHQWRIQRQVWDWHSOD\HUV
Over the past ten years, political transition, economic liberalization
and technological transformation have led to a dramatic growth in
WKHQXPEHUGLYHUVLW\DQGLQÁXHQFHRISULYDWHVHFWRUDQGFLYLOVRFLHW\
actors; these actors are involved increasingly in the many challenges
facing the world today. While they are not a substitute for government,
they can be effective partners for development.
Private sector
As the dominant engine of economic growth in today’s globalized
world, the private sector is key to achieving poverty eradication
and development goals. Success in facing social, economic and
environmental challenges has implications for long-term business
VXFFHVV&RQÁLFWDQGUHIXJHHFULVHVIRUH[DPSOHGHVWDELOL]HWUDGH
and market access. Corruption and poor governance increase the cost
and uncertainty of doing business. Global companies, in particular,
face pressure from a growing number of constituencies – consumers,
investors, employees and society at large – to show good corporate
citizenship not only by paying their taxes but also by acting respon-
sibly, being accountable and contributing to broader societal goals.

These stakeholders have been challenging companies to align their
core business activities in a socially responsible way and to help shape
national and international frameworks and institutions, in addition to
supporting community projects through corporate philanthropy. As a
result, many businesses now recognize their responsibility to address
broader societal concerns and have responded.
Outmoded notions of public-private partnerships too often meant
´<RXJLYHXV\RXUPRQH\DQGZH·OOVSHQGLWµ7RGD\SDUWQHUVKLSVDUH
taking on a whole new meaning. The United Nations works to harness
the experience, infrastructure and intellectual capital of the private
VHFWRUQRWRQO\LWVPRQH\6RFLHW\DWODUJHGHULYHVWKHEHQHÀWVQRW
RQO\IURPWKHÀQDQFLDOUHVRXUFHVEXWDOVRIURPEXVLQHVVLQIUDVWUXFWXUH
expertise, technology, products and management skills.
Advocacy for corporate social responsibility

%XVLQHVVOHDGHUVLQFUHDVLQJO\UHDOL]HWKDWSURÀWDELOLW\DQGHFRQRPLF
stability cannot be assured by market power alone. Global markets,
like national markets, can only be sustained if they meet the expecta-
tions of people. And that means that global markets, like national
markets, must be underpinned by shared values where everybody
has a sense of ownership. Civil society actors have long pursued
noble goals but only recently have started to work with market actors
towards common goals. Furthermore, business and civil society
organizations are increasingly realizing that the pursuit of a single
goal cannot be at the expense of other goals.
Giving direction and encouragement to these creative forces and
making them more sensitive to priorities shared by the international
community is a central challenge ahead. It is in this context that
the UN Secretary-General has proposed a United Nations Global
Compact,1 offering a framework for embedding global markets in
universal principles and providing fresh policy space to demonstrate
global citizenship.
The Global Compact is a global platform that aims to set standards
of corporate behaviour by reference to universal principles in the areas
1
<http://www.unglobalcompact.org>.
of human rights, labour and the environment in order to make markets

more stable and inclusive. The UN Secretary-General launched the
*OREDO&RPSDFWLQWRÀOODYRLGEHWZHHQUHJXODWRU\VWUXFWXUHV
and a variety of existing codes of conduct and standards. It has grown
to include more than 1,000 companies, trade unions, NGOs and
DFDGHPLF LQVWLWXWLRQV LQ DGGLWLRQ WR ÀYH 8QLWHG 1DWLRQV DJHQFLHV
WKH2IÀFHRIWKH81+LJK&RPPLVVLRQHUIRU+XPDQ5LJKWVWKH
United Nations Environment Program (UNEP), the International
Labour Organization (ILO), United Nations Development Program
(UNDP) and the United Nations Industrial Development Organization
(UNIDO)). The Global Compact seeks to integrate its principles into
business activities through a range of modalities that include dialogue,
learning forums, outreach and projects on the ground. Recognizing
the importance of local and country-level engagement, the Global
Compact also involves small and medium-scale enterprises, founda-
tions and NGOs from developing countries.
Networks and alliances convert policies into practice

A number of UN partnerships have resulted in ongoing networks that
address an issue over the long term – such as information technology
applications to further development goals or a coalition of partners
to address a global disease. A selection of these type of partnerships
include:
The Equator Initiative,2 funded by the UN Foundation and imple-
mented by the UNDP, is another global, multi-stakeholder partnership
that leverages private sector resources to achieve development goals.
This partnership among the United Nations, governments, civil
society, businesses and foundations links economic improvement
and job creation to protection of the environment by building the
FDSDFLW\ DQG UDLVLQJ WKH SURÀOH RI FRPPXQLW\ HQWHUSULVHV LQ WKH
WURSLFV%\UHFRJQL]LQJVXSHULRUSHUIRUPDQFHRIVSHFLÀFHQWHUSULVHV
the Equator Initiative shows that conserving biological diversity is
an integral part of the business bottom-line for these thriving local
ÀUPV HQJDJHG LQ DFWLYLWLHV UDQJLQJ IURP VXVWDLQDEOH IRUHVWU\ DQG
ÀVKLQJWRRUJDQLFDJULFXOWXUHDQGHFRWRXULVP,QDGGLWLRQWRSURYLGLQJ
2
<http://www.equatorinitiative.org>.
public recognition awards, the Equator Initiative plans to develop

local capacity through community-to-community learning exchanges
and contribute to the creating and sharing of knowledge to make an
impact on policy and public awareness.
7KHSULYDWHVHFWRULVDQLQYDOXDEOHSDUWQHULQÀJKWLQJ+,9$,'6
ZKLFKLVQRZUHFRJQL]HGDVDJOREDOSDQGHPLFWKDWGHÀHVVROXWLRQ
by any one government or sector acting in isolation.
“Governments and civil society must recognize and place greater
emphasis on the valuable contribution business can make, if we are to
stop the spread of this virus,” warned Richard Holbrooke, President
DQG &KLHI ([HFXWLYH 2IÀFHU RI WKH *OREDO %XVLQHVV &RXQFLO RQ
HIV/AIDS, and former US Ambassador to the United Nations.
For their part, companies, especially those operating in heavily
affected regions such as Africa, Asia and Latin America, increas-
ingly view HIV/AIDS as a core business issue. The Global Business
Council on HIV and AIDS3 is a multistakeholder initiative that was
established in 1997 to frame the epidemic as a key business concern
and to advocate for greater business action against it. Over thirty major
corporations now participate on the Council, which works in partner-
ship with UNAIDS, the UN Foundation, the Business Exchange on
AIDS and Development, the Bill and Melinda Gates Foundation, the
International Business Leaders Forum, the International HIV/AIDS
Alliance, the Open Society Institute and numerous others.
Civil society
Civil society organizations, including foundations, NGOs and
community-based organizations (CBOs), are also a source of vital
competencies and resources, ranging from experience, expertise,
information and networks. Foundations bring their intellectual capital,
expertise and other resources to partnerships, in addition to critical
funding.
“Foundations can be an increasingly important source of talent
and resources for the UN system. They can be catalysts for long-term
change. … Our commitment is collaborating with the UN in making a
KWWSZZZEXVLQHVVÀJKWVDLGVRUJ!
3
GLIIHUHQFHµFRQÀUPHG*RUGRQ&RQZD\3UHVLGHQWRIWKH5RFNHIHOOHU
Foundation.
MTCT-Plus,4 a partnership between the UN, numerous foundations
DQG RWKHU FLYLO VRFLHW\ DFWRUV WR WDFNOH +,9$,'6 LV D ÀYH\HDU
HIV care and treatment initiative. It is designed to link prevention
with care and treatment for HIV-infected women and their families
in the poorest countries. Coordinated by the Mailman School of
Public Health at Columbia University and supported by a coalition
of foundations, MTCT-Plus will add HIV care and treatment to
existing programs to prevent mother-to-child transmission (MTCT).
Leaders of foundations met with the UN Secretary-General in 2001
to announce that they and the larger global community of foundations
expect to commit USD 100 million in new funding for MTCT-Plus.
A coalition of nine foundations supports this initiative today: Bill and
Melinda Gates, William and Flora Hewlett, Robert Wood Johnson,
Henry J. Kaiser Family, John D. and Catherine T. MacArthur, David
and Lucille Packard, Rockefeller, Starr and the UN Foundation.
MTCT-Plus will focus initially on sub-Saharan Africa and will work
through partners already engaged in the prevention of mother-to-child
transmission of HIV, including the Elizabeth Glaser Pediatric AIDS
Foundation, JSI Research and Training Institute, Médecins Sans
Frontières, the United States Agency for International Development
(USAID), UNAIDS, United Nations Children’s Fund (UNICEF),
United Nations Fund for Population Activities (UNFPA) and the
World Health Organization (WHO).
In recent years, a major expansion of citizen action, NGOs and
&%2VKDVEHHQPDJQLÀHGE\XQSUHFHGHQWHGFRPPXQLFDWLRQVFDSDFLW\
via the internet and global media. These stakeholders undertake a wide
variety of activities at the community, national, regional and global
levels, ranging from the operational delivery of humanitarian and
GHYHORSPHQWVHUYLFHVWRFRQÁLFWUHVROXWLRQPHGLDWLRQIDFLOLWDWLRQ
capacity-building, awareness raising and advocacy. Most importantly,
civil society organizations voice the concerns of the poor and the
marginalized. To take account of these perspectives, partnerships
must include these key stakeholders.
4
<http://www.mtctplus.org>.
Some of these organizations have extensive global networks and

outreach capability to local communities, which can help the United
1DWLRQVLQLWVÀHOGRSHUDWLRQVHVSHFLDOO\LQKXPDQLWDULDQFULVHV7KH
close linkages between certain NGOs, local communities and citizens
also enable NGOs to act as mediators, building trust and understand-
ing between the state and the people, and between international
policy-making and national or local implementation. Some of these
players also carry out an important monitoring, advocacy and com-
munications role, helping to make the work of the UN better known,
more transparent and more accountable to a wider public.
UN Fund for International Partnerships (UNFIP)

UNFIP itself is part of an innovative partnership with the UN Founda-
tion. In response to Ted Turner’s pledge of USD 1 billion in 1997
to channel his global commitment through the United Nations, UN
6HFUHWDU\*HQHUDO.RÀ$QQDQHVWDEOLVKHG81),3LQ7XUQHUVHW
up the UN Foundation,5 a public charity, to administer this gift.
Turner, Founder and Chairman of the UN Foundation, explained
his vision: “We have focused on creating partnerships that magnify
the power that people, Governments and organizations, public or
private, have – working together – to effect change and promote a
world of good.”
The UN Foundation’s mission is to promote a more peaceful, pros-
perous, and just world through the support of the United Nations. The
UN Foundation makes grants, promotes United Nations awareness,
and mobilizes resources through new and innovative public-private
partnerships, to meet the most pressing health, humanitarian, socio-
economic, and environmental challenges of the 21st century.
As the interface between the UN system and the UN Foundation,
81),3ZRUNVGLUHFWO\ZLWKWKH2IÀFHRIWKH816HFUHWDU\*HQHUDO
DQG'HSXW\6HFUHWDU\*HQHUDO$IWHUPRUHWKDQÀYH\HDUVRIRSHUD-
tion, this successful partnership completed approvals on a portfolio
of over 311 projects executed by 40 UN implementing partners in
5
<http://www.unfoundation.org>.
122 countries, with a value, as of June 2004, of USD 594 million in

four thematic areas: children’s health, population and women, the
environment, and human rights.
UNFIP also plays a leading role in forging new partnerships in
development assistance. Working with companies and civil society
organizations, UNFIP takes the partnership to the next stage: it
HQJDJHVSDUWQHUVQRWRQO\RQDÀQDQFLDOEXWDOVRRQDQLQWHOOHFWXDO
level. UNFIP team members are the “conversion people”, turning
policies into practice, and principles into action.
In addition, UNFIP helps to implement a more coherent and
systematic approach to developing partnerships across the UN system.
UNFIP facilitates partnerships by providing a one-stop service for
SDUWQHUVKLSRSSRUWXQLWLHVZLWKQXPHURXV81DJHQFLHVRIÀFHVDQG
initiatives. UNFIP advises the private sector and foundations on
strategies to support global causes, such as the MDGs. UNFIP helps
UN colleagues to develop new relationships with the private sector
and foundations and to create innovative partnership modalities such
as networks, collaboration on project development, in-kind contribu-
tions, and corporate talent contributions to development projects on
WKHJURXQGLQDGGLWLRQWRÀQDQFLDOVXSSRUW
Working together with a partner like the UN Foundation has helped
the Organization to think in new and innovative ways. They support
the UN, but are not the UN, so they bring a fresh perspective to the
table. For example, a few years ago the UN Foundation and UNFIP
funded the development and launch of the Global Reporting Initiative
– the only existing guidelines for reporting on the economic, environ-
mental, and social dimensions of a company’s activities, products, and
services. Out of this grew more ideas and discussions which led to
the November 2003 Investors Summit on Climate Risk. The Summit
was held at the UN and convened 200 pension fund managers, US
VWDWHWUHDVXUHVJRYHUQPHQWRIÀFLDOVKLJKOHYHOEXVLQHVVH[HFXWLYHV
NGO leaders, and senior UN staff to explore the connection between
FOLPDWHULVNDQGÀGXFLDU\UHVSRQVLELOLW\)RUPHU9LFH3UHVLGHQW$O
Gore was the keynote speaker and a 10-point Call to Action was
VLJQHGE\NH\SDUWLFLSDQWVZKRKDYHÀGXFLDU\UHVSRQVLELOLW\IRURYHU
USD 1 trillion in assets.
Innovative partnerships
Public-private innovative investment mechanisms
Public-private investment mechanisms enable the UN system to
cooperate with companies, business associations and foundations
to leverage private capital for projects with long-term potential,
EXW ZKLFK FDQQRW DWWUDFW VXIÀFLHQW VWDUWXS ÀQDQFLQJ RU WHFKQLFDO
expertise through the market. The Global Environment Facility
(GEF)6LVDVXFFHVVIXOH[DPSOHRIDPXOWLODWHUDOÀQDQFLDOPHFKDQLVP
that has facilitated cross-sector dialogue and partnerships on a local
and global scale without requiring a large bureaucratic structure.
Strengthened after the Rio Earth Summit in 1992 to become more
strategic, effective, transparent and participatory, GEF’s mission is to
IDFLOLWDWHLQWHUQDWLRQDOFRRSHUDWLRQDQGWRÀQDQFHSUDFWLFDOSURMHFWV
in biodiversity, climate change, ozone depletion, international waters
and land degradation. GEF brings together 166 governments, lead-
LQJGHYHORSPHQWLQVWLWXWLRQVWKHVFLHQWLÀFFRPPXQLW\DQGDEURDG
spectrum of private sector and civil society organizations in support
of over 650 projects in more than 140 developing nations. GEF has
allocated nearly USD 3 billion to these initiatives, leveraging nearly
86'ELOOLRQLQFRÀQDQFLQJIURPELODWHUDODJHQFLHVPXOWLODWHUDO
development banks and the private sector. The private capital may
range from mainstream commercial investments to social venture
capital.
Philanthropic resource mobilization

Partnerships between the United Nations and the private sector
also aim to mobilize philanthropic funds, product donations and
volunteers from businesses and foundations to support UN programs
and activities. The accumulation of private wealth over the past ten
years has led to an increase in philanthropy and the emergence of
major new foundations, including the UN Foundation. For example,
donations by the Bill and Melinda Gates Foundation have helped to
leverage millions of dollars of public and private funding in the area
6
<http://www.gefweb.org>.
of health. The Vaccine Fund, supported by a USD 750 million grant

from this foundation, supports the work of the Global Alliance for
Vaccines and Immunizations (GAVI).7 Launched in 2000 at the World
Economic Forum in Davos, GAVI was created to increase support
for immunization activities dedicated to ensuring that all children,
however poor, have equal access to vaccines. GAVI is a coalition of
national governments; UN bodies such as WHO, UNICEF and the
World Bank; foundations such as the Bill and Melinda Gates Founda-
tion and the Rockefeller Foundation; the International Federation
of Pharmaceutical Manufacturers Associations; and technical and
research institutes.
Information and communication technologies (ICT) companies are
deploying resources to support digital divide projects and humanitar-
ian programs, often combining product donations and volunteer
expertise with funding. UNFIP has been a catalyst and an advocate for
the Cisco Networking Academy Program8 at the G-8 Summit in July
2000, which was launched jointly by Cisco Systems, Inc. and UNDP.
Cisco Systems, UNDP, the United Nations Volunteer program (UNV),
the United Nations Information Technology Service (UNITeS) and
USAID have been working together to train students and trainers for
the Internet economy by establishing the Cisco Networking Academy
Program in economic institutions. The Program is a comprehensive
560-hour course designed to provide students with skills to design,
build and maintain computer networks. By the end of 2002, almost
3,500 students were enrolled in 83 different Cisco Networking
Academies in 33 of the least developed countries (LDCs). UNDP
FRQVXOWHG FRXQWU\ RIÀFHV JRYHUQPHQWV DQG DFDGHPLF LQVWLWXWLRQV
of LDCs using its expertise in economic and social development
and familiarity with the local and regional situations in 132 different
countries, while Cisco Systems established a deployment strategy
for each country.
UNFIP facilitated the creation of a network to bring together the
digital diaspora to bridge the digital divide in Africa. The Digital
Bridge to Africa meeting was held in 2002 in partnership with the
7
<http://www.vaccinealliance.org>.
8
<http://cisco.netacad.net/public/digital_divide/ldc/index.html>.
United Nations Information and Communication Technologies (UN

ICT) Task Force, UNDP, Digital Partners and UNFIP. Over 100
participants attended, including leading members of the African
diaspora and representatives from technology corporations and non-
SURÀWRUJDQL]DWLRQV5HVXOWVLQFOXGHGWKHRIÀFLDOODXQFKRIWKHDigital
Diaspora Network – Africa (DDN-A),9DQRQSURÀWRUJDQL]DWLRQWKDW
seeks to promote development in Africa. In addition, AfriShare was
established as a resource and knowledge-sharing facility to match
innovative projects with mentors from the DDN-A network. The
6RFLDO )XQG IRU$IULFD DOVR ZDV LQDXJXUDWHG WR SURYLGH ÀQDQFLDO
support for ICT entrepreneurial activities in the region.
Information technology as a tool for development

The world is in the midst of an information revolution with new
communications technologies being a driving force of globalization.
Such technologies bring people together and provide decision-makers
unprecedented new tools for development. However, the gap between
the information haves and have-nots is widening, and the world’s poor
are increasingly being excluded from the emerging knowledge-based
global economy.
New technology offers a range of opportunities to help countries
“leapfrog” into the new information age and because of this, bridging
the digital divide has become a key focus of the Secretary-General.
There are a number of new partnerships and initiatives underway to
help close the information gap, including:
– The United Nations Information Technology Service (UNITeS),
a volunteer corps that helps people from any country to vol-
XQWHHUWKHLUVNLOOVDQGWLPHWRH[WHQGWKHEHQHÀWVRIWKHGLJLWDO
revolution to developing countries;
– A Health InterNetwork to establish 10,000 online sites in hos-
pitals and clinics in developing countries to provide access to
up-to-date medical information. This initiative is supported by
the Open Society Institute, Bill and Melinda Gates Foundation,
Satellife, the World Health Organization, the UN Foundation
and other partners;
9
<http://www.ddn-africa.org>.
– The UN ICT Task Force was established in November 2001 to

provide overall leadership to the United Nations in formulating
strategies for the development of information and communica-
tion technologies and placing those technologies at the service
of development. Additionally, the Task Force, on the basis of
consultations with all stakeholders and Member States, helps
to forge a strategic partnership between the UN system, private
LQGXVWU\DQGÀQDQFLQJWUXVWVDQGIRXQGDWLRQVGRQRUVSURJUDP
countries and other relevant stakeholders.
Promoting UN values and activities

Advocacy relationships include partnerships between the United
Nations and non-state actors to raise public awareness and support
(which may also include the mobilization of funds, products or vol-
unteers) to advance UN values, goals and programs through activities
such as joint communications campaigns, product licensing and social
marketing. One such partnership is between UNAIDS10 and MTV to
raise awareness of HIV/AIDS among youth. Another partnership
to raise public awareness and support is NetAid,11 launched as a
collaboration between UNDP and Cisco Systems in 1999. NetAid
promotes awareness and mobilizes resources from the private sector,
foundations and individuals worldwide. By operating as an online
community, NetAid avoids the creation of a new bureaucratic struc-
ture. Its mission is to inform people about poverty issues and empower
them to take actions on these concerns through online volunteering
or donations. NetAid intends to make the internet a major catalyst for
efforts to tackle extreme poverty worldwide. Since its launch, over
12,000 donors have contributed nearly USD 1.3 million to NetAid
to support projects in 22 countries. Its operating costs are supported
by its partners such as UNDP, Cisco Systems, UNICEF, UNV and
the Listwin Family Foundation.
10
<http://www.unaids.org>.
11
<http://www.netaid.org>.
Project design and operational delivery

Operational delivery partnerships directly support UN operations in
WKHÀHOG7KH\LQYROYHMRLQWSURJUDPRUSURMHFWGHVLJQLPSOHPHQWD-
WLRQDQGRUHYDOXDWLRQLQDGGLWLRQWRWKHPRELOL]DWLRQRIÀQDQFLDO
in-kind technical or managerial resources. A new development is the
emergence of relationships between UN entities and companies or their
corporate foundations that mobilize philanthropic or social investment
funds from the private sector and also engage business expertise in
the actual design, implementation and in some cases governance and
evaluation of the projects being funded. These collaborative initiatives
KHOSWRDGGUHVVDJURZLQJYDULHW\RIORFDWLRQVSHFLÀFGHYHORSPHQW
or humanitarian issues.
The First on the Ground Initiative,12 a partnership between Erics-
son and the United Nations, is an example of the capacity that exists
in the private sector to bring the power of technology and resources
directly to the service of humanity, and in particular, humanitarian
relief operations. In emergency conditions, communications networks
DUHDPRQJWKHÀUVWYLWDOV\VWHPVWREHGDPDJHGUHQGHULQJLWPRUH
GLIÀFXOW IRU UHVFXH PLVVLRQV DQG UHOLHI RSHUDWLRQV WR IXQFWLRQ HI-
fectively. Ericsson’s “First on the Ground” concept is designed as an
“in-kind” contribution at the disposal of the UN system to provide and
maintain effective and consistent mobile communications equipment
and expertise for humanitarian relief operations. The partnership
includes UN agencies involved in emergency response and mitigation
WKH 2IÀFH IRU WKH &RRUGLQDWLRQ RI +XPDQLWDULDQ$IIDLUV DQG WKH
Department of Peacekeeping Operations) as well as the International
Federation of Red Cross and Red Crescent Societies.
The Global Polio Eradication Initiative is another example of a
global partnership, which includes the UN, NGOs and the private
sector. This partnership involves two UN agencies, WHO and
UNICEF, as well as Rotary International, the Bill and Melinda Gates
Foundation, the UN Foundation, DeBeers in Angola and Coca-Cola
in Nigeria. Coca-Cola, for example, lent the UN its know-how and
its extensive infrastructure of refrigerated trucks in Africa to enable
12
<http://www.reliefweb.int/ ocha>.
large quantities of polio vaccine to be transported to remote villages.

Thanks to efforts like these, the international community now is in
WKHÀQDOVWDJHVRILWVOHQJWK\EDWWOHWRULGWKHZRUOGRISROLR
Challenges and lessons learned

Innovative partnerships are a promising avenue, but not a panacea,
for tackling global problems. They pose a variety of challenges, par-
ticularly in the context of UN-business partnerships, which boil down
WRVHOHFWLQJWKHULJKWSDUWQHUVE\IRUH[DPSOHDYRLGLQJFRQÁLFWVRI
interest. One risk lies in selecting an inappropriate business partner
because it may be involved, or perceived to be involved, in practices
that contradict UN principles. This could undermine the credibility
and integrity of the UN entity in question or even the entire UN
system. Guarding against this risk requires due diligence in the initial
selection, as well as monitoring the performance of the partnership.
Operational and management-related challenges include:
– managing expectations;
– dealing with different interests, incentives, time frames, level
of resources, and competencies among partners;
– engaging more partners from developing countries and countries
with economies in transition;
– building local skills and capacity, such as improving informa-
tion and access;
– building greater efficiency by, for example, overcoming
bureaucracy; and
– learning from experience.
To help manage these challenges and ensure the UN’s integrity and
independence, the United Nations issued Guidelines for Cooperation
between the United Nations and the Business Community in July 2000.
The guidelines indicate that UN partnerships with businesses should
follow certain general principles. Partnerships must:
– advance development goals;
– have clearly delineated roles and responsibilities;
– be accountable and transparent;
– not compromise integrity or impartiality; and
– not confer an unfair advantage.
For instance, use of the UN name and emblem is limited to support

of UN purposes, policies and activities.
A few characteristics of successful partnerships

The United Nations is identifying methodologies for assessing
partnerships based on best practices. Experience at UNFIP has shown
that successful partnerships also share certain characteristics, some
of which are:
– shared vision and commitment to partnership objectives;
– complementary competencies of partners from different
stakeholder groups;
– free, honest, and regular communication;
– clear agreements setting forth roles and responsibilities, with
targets; and
– effective reporting and evaluation mechanisms.
Conclusion
The possibilities for partnership and cooperation with the UN are
endless. The Organization and its family of agencies cover all issues
affecting mankind from trade access to debt relief; from poverty
alleviation to the eradication of disease; from ensuring a sustainable
environment to tackling the problems of low agricultural productivity
in Africa; from strengthening respect for international law to curbing
WKHLOOHJDOWUDIÀFRIVPDOODUPVDQGEH\RQG)RUHDFKRIWKHVHFKDO-
lenges, there is an opportunity for change for the better.
That change will only come, however, by pooling the compara-
WLYHDGYDQWDJHVDQGUHVRXUFHVRIPXOWLSOHVWDNHKROGHUV7KHRIÀFLDO
budgets of countries will always be limited, and in today’s world
we must recognize that the private sector is the dominant engine
of growth. If the private sector does not play a proactive role in
delivering economic growth and economic opportunity around the
world, then the goals of poverty eradication and peace will remain
elusive. This participation can only be fully achieved by governments’

placing more attention on how the private sector can best contribute
for development, and by embracing the knowledge and perspectives
of civil society as a key partner. If innovative partnerships are what
is needed, all stakeholders must be open to new ideas.
Source
Report of the Secretary-General, A/58/227, Enhanced Cooperation
between the United Nations and All Relevant Partners, in particular
the Private Sector, 18 August 2003.
Chapter 10
COMMITMENT TO MULTILATERALISM
A. Missouri Sherman-Peter*
Introductory points: multilateralism versus

unilateralism
(YHQDFXUVRU\ORRNDWWKHP\ULDGFKDOOHQJHVIDFLQJWKHWZHQW\ÀUVW
century world would lead to the conclusion that multilateralism
simply makes good sense. It is fair to say, in that regard, that the
dividing line between what is national and what is international is
not, and can never be, absolute, and never before has that dividing
line been so blurred.
The critical issues of our times – among them poverty and
hunger, globalization and trade liberalization, slow or retarded socio-
economic development, promotion and protection of human rights
and fundamental freedoms, pandemic diseases such as HIV/AIDS,
terrorism and the maintenance of international peace and security
– have several attributes in common. Most notably, these issues are
global in scope, transcend national borders and connect the countries
of the world.
As the key issues on the global agenda impact all states, it follows
logically that cooperation among states is essential to their solutions,
and indeed for global order. International institution building, interna-
* Chief de Cabinet to the President of the Fifty-Eighth session of the General

Assembly.
tional policy setting and coordination, establishment of international

VWDQGDUGV DSSOLFDEOH WR DOO LQFOXGLQJ WKURXJK WKH FRGLÀFDWLRQ RI
international law, promotion of economic and social progress and
other aspects of the framework for international relations are all
underpinned by multilateralism, and vice versa.
Multilateralism makes good sense for another compelling reason:
states agree to it. The range of intergovernmental organizations
– regional, trade, security and special interest, to name a few – is quite
VLJQLÀFDQWDQGFRQWLQXHVWRJURZLQQXPEHUVL]HDQGFRPSOH[LW\
Organizations such as the Commonwealth, the European Union, the
Organization of American States and numerous others can be con-
sidered to explicitly accept the internationalism of issues of common
concern and multilateralism as the means of addressing them.
7KHVLJQLÀFDQFHRIPXOWLODWHUDOLVPEHJVWKHTXHVWLRQDVWRZKDW
the alternatives to it are. There has been considerable discussion
in recent times about unilateralism, particularly in the wake of the
military action in Iraq, which the United Nations Security Council
did not authorize, but to which it also never objected.
In making the point that unilateralism cannot be a guiding principle
in international relations, Robet Keohane and Joseph Nye contend that
“unilateralism my lead to occasional foreign policy triumphs, but it is
an inadequate answer to a host of problems that cannot be addressed
except through international cooperation.”1 In short, the reasoning
WKDWQRVWDWHQRPDWWHUKRZZHDOWK\SRZHUIXORULQÁXHQWLDOFDQGHDO
with the critical issues of our times alone is persuasive. Indeed, many
countries that have attempted to pursue policies on their own, outside
of the multilateral framework have come face to face with the stark
reality that unilateralism cannot resolve multilateral problems.
An interesting proposition has been put forward, particularly since
the military action in Iraq. Robert Kagan of the Washington Post puts
1
Joseph S. Nye and Robert O. Keohane (1985), “Two Cheers for Multilateralism,”
Journal of Foreign Policy, No. 60, Fall. Also Robert O. Keohane and Joseph S.
Nye, Power and Interdependence (3rd edn, 2001) p. 150; Robert O. Keohane,
“International Institutions: Two Approaches” in Robert J. Beck, Anthony Clark
Arend and Robert D. Vander Lugt (eds), International Rules: Approaches from
International Law and International Relations1HZ<RUN2[IRUG8QLYHUVLW\
Press, 1996).
10. Commitment to Multilateralism 161
it this way, “[I]t is possible to be multilateralist and unilateralist at

the core.”2 In short, a country can strive to elicit a desired response
from an international organization, and where this is not possible,
to exercise a unilateral option. This is an approach that would
undoubtedly create uncertainty in international affairs; therefore,
arguments favouring multilateralism over unilateralism also apply
in this case.3
The United Nations and multilateralism

The extensive network of international organizations worldwide
which provide the forums for international cooperation have been
the subject of numerous academic works, such as Jacobson’s Net-
works of Interdependence.4 It is submitted that the United Nations
system is unique among multilateral organizations that comprise
this network.
The United Nations is the world’s premier multilateral organiza-
tion. It has an impressive constituency – the peoples of the world. It
is a universal organization. Having accepted the obligations contained
in the Charter of the United Nations, and having been judged by the
Organization as being willing and able to carry out these obligations,
all 191 of the world’s states are members (United Nations Charter,
Article 4 (1)). Provided they are able to meet the criteria, states yet
to come are also eligible for membership.
The work of the United Nations is global in scope. The initiatives
of its principal organs, specialized agencies and programs, taken
2
Robert Kagan, Washington Post, 4 October 2004.
3
Arguably, uncertainty can just as easily arise from countries’ failure to agree
on a common approach, as much as it can from one country’s unilateralism.
,IDURJXHFRXQWU\ÁRXWVPXOWLSOH816&UHVROXWLRQVDVGLG,UDTWKHIDLOXUH
of multilateral organizations to enforce those resolutions leads to uncertainty.
Furthermore, to place stock in multilateralism for multilateralism’s sake is to
elevate form over substance and can have tragic consequences. In that regard,
multilateralism resulted in the dismemberment of Czechoslovakia and, earlier,
prevented France from taking decisive action against Germany in the Saar.
4
Harold K. Jacobson, Networks of Interdependence: International Organizations
and the Global Political System1HZ<RUN$OIUHG$.QRSI
together, address virtually every area of human endeavour. The

organization is therefore strategically placed to address not only
current global challenges, but also new and emerging issues on the
global agenda. In the United Nations, global policy is conceived and
deliberated upon and decisions are transmitted to states for informa-
tion and implementation.
Whether in respect of development, human rights, peace and
security or any other issue, the United Nations’ work helps to bring
stability and certainty to international relations. The United Nations
standard-setting activities, for example, have been, and are, critical
to global order. Unlike special interest groups such as the Organiza-
tion for Economic Cooperation and Development (OECD) which in
areas such as international tax matters sets standards in the interest
of its Member States, standards agreed by the United Nations are
DSSOLFDEOHWRDOOVWDWHVODUJHDQGVPDOOULFKDQGSRRU6LJQLÀFDQW
strides continue to be made in this area. The International Criminal
Court (ICC), for instance, represents a recent major attempt to order
international affairs in critical areas largely beyond the capacity of
individual states.
,WLVWKH8QLWHG1DWLRQVVSHFLÀFDOO\WKH6HFXULW\&RXQFLOZKLFK
has been given primary responsibility for the maintenance of interna-
tional peace and security by the Charter. This gives the Organization
UHVSRQVLELOLWLHVLQUHVSHFWRIWKHFRQÁLFWVDQGZDUVDIIHFWLQJFRXQWULHV
and regions around the world and other serious issues such as terror-
ism. Those Council’s decisions in these areas adopted under Chapter
VII of the UN Charter are binding on all Member States.
The United Nations is an important sounding board for opinions,
ideas and proposals of the global community. Interestingly, no matter
how much criticism is levelled at the Organization, and how many
questions are raised about its relevance and about the effectiveness
of multilateralism, world leaders from around the globe converge on
the United Nations to put forward their government’s perspectives
on a range of issues. As a result, the Organization has considerable
LQÁXHQFHLQVHWWLQJWKHJOREDODJHQGDHDFK6HSWHPEHU
Over the years, the United Nations has made space for partnerships
with non-governmental organizations and civil society to meet the
goals of the Charter. The Organization has thus extended its reach,
particularly at the grass roots level, in the interest of ensuring that the
SHRSOHVRIWKHZRUOGDUHLQGHHGWKHEHQHÀFLDULHVRI8QLWHG1DWLRQV
initiatives. This is an area that should continue to receive attention,
in light of the report of the Secretary-General’s Panel of Eminent
Persons concerning the relationship between the Organization and
non-governmental organizations and other civil society players.
It is true that solutions to all global problems do not emanate from
the United Nations. Organizations such as the Commonwealth, for
example, have taken the lead in areas as diverse as the vulnerability
of small states and debt. The United Nations does, however, have
important capacity to legitimate decisions made by other intergovern-
mental organizations. This is particularly so in respect of decisions
concerning the maintenance of international peace and security. Also,
other international organizations have made commitments to support
the work of the United Nations.
There can be no doubt, therefore, that a principal commitment to
multilateralism should be a well functioning United Nations.
Relevance and other matters

Recent questioning of the relevance of the United Nations and of
multilateralism has in part to do with perceived unilateral approaches
to global problems, particularly in the wake of military action in Iraq.
While time has shown that these concerns were somewhat overblown,
they warrant a re-evaluation in respect of the United Nations’ role.
The current global situation described by the United Nations
Secretary-General as a “fork in the road” and by others as a period
of crisis for the Organization is encouraging the United Nations to
take a closer look at itself. This is an appropriate course of action for
an organization that is sixty years old.
Many initiatives are underway, as part of the United Nations re-
examination of itself. The Organization is, for example, reviewing
LWVZRUNLQWKHHFRQRPLFDQGVRFLDOÀHOGVZKLFKEHDUVFHQWUDOO\RQ
improving the capacity of the Economic and Social Council to help
bring greater coherence to the Organization’s responsibilities in these
areas. The Secretary-General has established a Panel of Eminent
Persons on Threats, Challenges and Change to recommend to him how
the United Nations might approach the new and emerging challenges
in international affairs.
Two longstanding initiatives have been given new impetus – revi-
talization of the work of the United Nations General Assembly and
reform of the Security Council. The General Assembly has agreed to
VWUHQJWKHQLWVRZQRIÀFHRIWKH3UHVLGHQWDQGWRFODULI\WKHUHSRUWLQJ
relationship between the General Assembly, the Security Council, and
the Economic and Social Council and their respective presidents.
The General Assembly has also considered reforms to its agenda,
such as devising a method to prioritize issues and eliminate repeti-
tion. The agenda has swelled to some 333 items, and these items are
more easily added than removed. In addition, many of these items
deal with the same subjects, and, what is worse, sometimes do so
inconsistently. The volume, repetition and inconsistency of agenda
LWHPVLQWXUQKDYHPDGHLWGLIÀFXOWIRUWKH$VVHPEO\DQGWKHYDULRXV
delegations to keep track of what has been said. More importantly,
WKHVHLQHIÀFLHQFLHVKDYHSUHYHQWHGWKH$VVHPEO\IURPDGGUHVVLQJ
issues in-depth and hindered it from dealing promptly with serious
concerns.
Reform of the Security Council has been ongoing for the better
part of ten years, with no comprehensive resolution. This is despite
JHQHUDODJUHHPHQWWKDWD&RXQFLORIÀYH3HUPDQHQW0HPEHUVDQGWHQ
Non-Permanent Members is not representative of a United Nations
of 191 Member States, and that the system of veto is anachronistic
in the 21st century. The Group of States have taken the initiative to
comment on six of the principal issues in this area.
It is important to note that these reforms, whether of the General
Assembly or the Security Council, have not tended towards grand
GHVLJQV )RU WKH PRVW SDUW WKH\ DUH GHVLJQHG WR DGGUHVV VSHFLÀF
LVVXHVDIIHFWLQJWKHHIÀFLHQF\DQGHIIHFWLYHQHVVRIWKHZRUNRIWKH
two organs, and in respect of the Security Council, to make it more
representative and to improve its transparency.
It is in these efforts to improve important organs of the United
Nations that the frustration inherent in multilateralism comes to the
fore. Pragmatism dictates that in an organization of sovereign states,
none are likely to get exactly what they want. This aside, the often
slow pace of negotiations, arriving at decisions through prolonged
and painful negotiations only to discover that capitals do not agree,

RUWKDWRQH0HPEHU6WDWHXVXDOO\DSRZHUIXODQGLQÁXHQWLDORQHGLG
not consider itself to have been appropriately consulted, and wants
negotiations to begin again are par for the course in doing business
multilaterally. The more complex world issues become, the more
challenging it becomes for the United Nations to reach coherent
decisions and to take action on them.
Some members have also raised the issue of effectiveness of
multilateralism and the United Nations, stemming from the percep-
WLRQWKDWWKH2UJDQL]DWLRQUHÁHFWVWKHLQWHUHVWVRIWKHSRZHUIXO7KH\
perceive that who pays the piper calls the tune, and those who pay get
to establish the rules of the game. There is truth to the reasoning that
WKHLQÁXHQFHRIGHYHORSLQJFRXQWULHVLVQRWFRPPHQVXUDWHZLWKWKHLU
number, and has not been since the Cold War, when most of them
pursued a policy of non-alignment to their collective advantage
Another point, made with caution, concerns the role of the media.
Media reports tend to follow zealously the deliberations of the United
Nations Security Council. The Council’s work is concerned, in large
PHDVXUH ZLWK FRQÁLFWV DQG ZDU DQG WKHLU FRQVHTXHQFHV 0DQ\ D
FRQÁLFW RU ZDU LV DOUHDG\ LQ SURJUHVV ZKHQ WKH 6HFXULW\ &RXQFLO
takes it up, or the situation deteriorates while the matter is before
the Council for decision. Those who formulate their views about the
United Nations through this prism of the Security Council, therefore,
could well conclude that the United Nations and multilateralism
are not faring well. But one also needs to bear in mind the need to
contend with resources, political will and intelligence, as well as
disparate interests.
Why the United Nations and multilateralism?

Whatever the challenges to the United Nations and to multilateral-
ism – and there are many – it cannot be disputed that in a world of
sovereign states, multilateral cooperation of the nature envisaged
in the Charter of the United Nations is in the interest of all because
it offers the most realistic prospects for effectively addressing the
plethora of critical issues on the global agenda.
Within the framework of the United Nations, multilateralism

allows the varied voices of states to be heard; it provides the setting
for cooperation in solving problems of an international nature; it takes
into account that issues may impact different countries or groups
of countries differently, and should be approached accordingly; it
allows balance between the powerful and wealthy minority and the
less powerful and poorer majority; and it fosters mutual cooperation
and respect.
Member States deliberate in the various bodies of the United
Nations, determine the policies the Organization will pursue, agree
to the rules and adopt the resolutions and decisions. The Organiza-
tion cannot impose its will upon Member States. Therefore, it is up
to Member States to carry forward the policies and programs they
formulate, enforce the rules, and take action in respect of the resolu-
tions and decisions.
The United Nations has not been able to meet all the demands made
on it, and it is unrealistic to believe that it could. With the requisite
commitment to multilateralism, however, Member States can ensure
that it functions optimally for greatest impact. Current initiatives at
reform DUHDVWHSLQWKHULJKWGLUHFWLRQ7KHUHUHPDLQVDVLJQLÀFDQW
gap, however, between what the United Nations ought to do and what
it actually does. New perspectives, new ways of doing business are
sorely needed, if the United Nations is to be effective in a world that
is growing ever more complex and challenging. In short, it requires
renewed commitment to multilateralism.
Chapter 11
WILL THE UN HOPE SURVIVE
Newton Bowles*
With the re-election of President Bush for a second term in the United
States, the future of the United Nations has become acutely relevant.
It is not just will the UN Survive, but will the hope invested in the
United Nations survive?
The UN was born in hope, the hope for a new and peaceable world
order in the wake of the great hemorrhage, World War II. But now,
in 2004, how much of that hope in fact had survived?
Iraq and terrorists have shown that the UN cannot work. The UN
millennium celebrations, ushering in the 21st century, were a sham.
After all the talk, it is power that decides. The UN has failed. What
we need is the anatomy of failure, not the anatomy of hope.
War, cynicism, despair. What kind of despair is this? The poet
Nadezhda Mandelstam wrote about despair in her book, Hope Against
Hope, on the tragic political entrapment and death of Russia’s great
poet, her husband Osip Mandelstam.1 Her name, Nadezhda, means
hope. Her suffering is life itself, a poet’s alchemy. How many children
these days are named “Hope”?
* Canadian diplomat who has been with the United Nations in many key areas
since 1945 and continues today as a senior adviser to UNICEF.
1
Russian writer and wife of poet Osip Nadezhda. Her book Hope Against Hope: A
Memoir1HZ<RUN0RGHUQ/LEUDU\ZDVWUDQVODWHGE\0D[+D\ZDUG
But what has this to do with the United Nations? Nadezhda was
one person against the state. Isn’t that precisely our problem? We
have codes of behaviour, moral codes for individuals, and most
people on the whole follow the rules. We have something called a
conscience that keeps us on track. But people in groups, in nations,
seem to revert to a kind of jungle behaviour. Put them all together
and what can you expect?
We have touched on a profound and perplexing problem. What
is it that determines national behaviour? Is there such a thing as
national, and hence international, morality? The historical record is
SUHWW\EDG<HWDORQJZLWKDOOWKHEORRGVKHGLQWKHODVWFHQWXU\RUVR
serious measures and codes have emerged to regulate and mitigate
international violence. There is some kind of tenuous group morality.
Without it there would be no United Nations.
Looking for some sort of metaphor for the UN, I have suggested
that it is the great myth of our times. We make myths to give meaning
WRRXUOLYHV%XWWKLVPHWDSKRUGRHVQ·WUHDOO\ÀW0\WKVFRPHRXWRI
the historical experience of a people, myths project their collective
unconscious. There is not yet the depth of shared worldwide experi-
ence that would yield a global mythology. Computers apart, there is
no lingua franca. People don’t rise up singing their love of the UN
²DQGWKHSDOH81ÁDJÁXWWHUVLGO\DQGXQNQRZQ6RZKDWLVWKHUHWR
build on? Where is some shared world experience? There is fear and
there is hope: these are the twin pillars on which the UN was built.
Without hope, there would be no United Nations.
But the old world of fear is slow to die. The UN, in its short life,
has survived crisis after crisis. The Cold War led to hot peace, if
you can call it that. And now the main architect of the UN, the great
$PHULFDQHDJOHKDVOHWIHDUWDNHRYHUÁ\LQJLWVRZQFRXUVHDZD\
from the UN.
6SHDNLQJWRWKH*HQHUDO$VVHPEO\LQ6HSWHPEHU.RÀ$QQDQ
the Secretary-General, said:
“We have come to a fork in the road. This may be a moment
no less decisive than in 1945 itself, when the United Nations
was founded.
11. Will the UN Hope Survive 169
Now we must decide whether it is possible to continue

on the basis agreed then, or whether radical changes are
needed.”2
A year later, in September 2004, at the General Assembly, the

Secretary-General announced his creation of a High-Level Panel on
threats to peace and security, and on how the UN should respond to
all that. The release of the Panel’s report has been shrewdly delayed
until after 2 November. I will return to this later.
Let us take our discussion outside the institutional context of the
UN, both historically and globally. Early Western attempts to achieve
stability, from Westphalia onwards, rested on balancing power among
governing elites. The French Revolution and Napoleon brought us to
our contemporary world where everyone – yes, everyone – is caught
up in our new holy wars, and where war itself is an excrescence of
industry and technology. Not only is war global, but so is almost
everything else. Freud explored civilization and its discontents3 (we
have to be good and we don’t like it) – and this is now translated
into globalization and its discontents. That word “globalization” has
EHFRPHDVRUWRIFDWFKDOOIRURXUÁXLGVWDWHRIDIIDLUV²HFRQRPLF
social, cultural, demographic, pandemic, and environmental – the
JOREDO ÁX[ WKDW UHVWV RQ WKH HQRUPRXV LQFUHDVH LQ ZHDOWK RYHUDOO
and the revolution in communications and information technology.
Wherever you are, you are in one global space and time. Thus war,
anarchy, greed, violence and crime are global; and so are humane
drives to build, protect, and nourish.
:KHUHGRHVWKH81ÀWLQWRDOOWKLV"7KH81LVDIRUPDODVVRFLDWLRQ
of nation states whose the theoretical autonomy is enshrined in the UN
Charter. But the reality is that no nation, not even the most powerful,
FDQOLYHXQWRLWVHOI<HWWKHQDWLRQVWDWHLVZKDWZHKDYHDQGLWLVIDU
from transferring its authority to the world. So at the UN we have the
anomaly of the diminished nation state, de facto reluctantly yielding
2
UN document A/58/PV.7, p. 3.
3
Sigmund Freud, Civilization and Its Discontents is one of his most interesting
works where he provides his pessimistic commentary of modern society; see
The Basic Writing of Sigmund Freud (Modern Library, 1995).
WRWKHJOREDOÁRZRISRZHUDQGUHVRXUFHVEH\RQGVWDWHFRQWURO.RÀ
$QQDQKDVWULHGWRWDSLQWRWKLVÁRZHVSHFLDOO\WKURXJKWKH81*OREDO
Compact with business and labour; and now with the UN Information
6XPPLW)RUEHWWHURUIRUZRUVHWKHUHLVDQHQRUPRXVÁRZRIHQHUJ\
out there that the UN has hardly touched.
But there is more than one United Nations. There is the UN as
“processµWRXVHDEX]]ZRUG²SURFHVVEHLQJWKHÁRZRISROLWLFDO
power, ideas, commitments, resources. Then there is institutionalized
UN, the organizations that facilitate process and turn process into
action. Central to all this is what I call “Mother UN,” the Charter
UN – the General Assembly, the Security Council and their numer-
ous off-springs set up to dealing with problems of development,
trade, human settlement, refugees, children, women, population and
environment. Beyond all that is what we euphemistically call the
UN System, the World Bank and IMF, the Specialized Agencies,
also many technical organizations to regulate atomic energy in all
its forms, to regulate communications, the air, the sea, the mail and
so on; not to mention the many treaty bodies set up under interna-
tional instruments on civil and political rights and economic, social
and cultural rights. Let us not forget the War Crimes Tribunals for
<XJRVODYLDDQG5ZDQGDFUHDWHGE\WKH6HFXULW\&RXQFLODQGQRZ
at last the International Criminal Court (ICC). Nor should we forget
the several regional economic organizations for Asia, Africa, Middle
East and Latin America. It would take a lot of buckshot to bring down
this international network.
But an attack on Mother UN is hard on all her children, and that
has to be the focus of our concern today. Where is hope and where
is fear?
Writing The Diplomacy of Hope4 took me across the whole
spectrum of UN concerns, its achievements, its failures. It is a rich
and complex story, little known or celebrated. A great achievement
has been human rights law. Within the overarching UN Charter, and
WDNHQWRJHWKHUZLWKWKH*HQHYD3URWRFROVKXPDQLW\KDVIRUWKHÀUVW
time a universal code of conduct. And with the ICC, this code applies
4
Newton Bowles, The Diplomacy of Hope (United Nations Association in Canada,
World Federation of UN Association, 2004).
not only to states but also to individuals. Human rights transcend

criminal law in that rights are the way to go, they set goals for social
and economic development, standards for the good society.
This is an astonishing expression of hope. Hope, yes; but at the
VDPHWLPHLWGHÀQHVRXUGHVSDLULWPHDVXUHVRXUIDLOLQJV)RUWKRVH
who toil in the vineyard, every day confronting the chasm between
words and deeds, the UN can be a school for cynics. Hope should
inspire, not obscure.
To get some distance from easy talk, at the UN Millennium Summit
LQWKH\HDU.RÀ$QQDQGLGVRPHWKLQJGLIIHUHQW+HSURSRVHG
DQGWKHPHPEHUVDSSURYHGVSHFLÀFJRDOVWREHUHDFKHGE\7KH
most radical and all-embracing goal was to cut in half worldwide
DEVROXWHSRYHUW\GHÀQHGDVVXUYLYLQJRQ86'DGD\7KDWJRDOVHW
the framework for related objectives: security, disarmament, health,
education, the vulnerable, and women and children.
Hope is ambitious, and these are hope’s goals. By gross measure,
poverty reduction will be achieved; but only because of overall growth
in China and India – and by no means evenly in those countries,
while Africa lags far behind. Interim reports tell us that performance
has been uneven, but that there is improvement. For a nuanced as-
sessment, we await Jeffrey Sachs’ study, due to come out in 2005.
While these goals are prescribed as goals for the UN, in fact they are
primarily goals for the individual members of the UN
At the level of principle and ideal, the normative function, the
UN has been good. Failure stems from its weak tools for enforce-
PHQW7KH:DU&ULPHV7ULEXQDOVIRU<XJRVODYLDDQG5ZDQGDDQG
now the ICC, are a historic breakthrough, giving some baby teeth to
international law. Indictment and prosecution are international, but
arrest and incarceration depend on national cooperation. Although the
ICC mandate explicitly begins only where state authority ends, the
great superpower of the United States has spread seeds of sovereign
distrust. Iraq may induce another look.
This brings me to the critical issues of peace and security, the latest
cliff where the UN is hanging. Why is 2004 any worse? All eyes
are on the Security Council. Apart from Korea (1950) and the Suez
crises, the Council was largely sidelined during the Cold War. The
US did not take Vietnam to the Security Council; Saddam Hussein
was not blessed in shedding blood in Iran; and the USSR suicide in
$IJKDQLVWDQZDVQRWFHUWLÀHGE\WKH&RXQFLO7KHVHZHUHELJEUXWDO
wars, and the world looked the other way. There was no UN crisis
because the UN was not consulted. The UN came in late, to patch
things up.
For the US-led invasion of Iraq, two things were different. One
was that the UN Security Council was already deeply involved, and
refused to go along with the US. After bitter debate, the US ignored,
snubbed the Council. And then, in panic from the terrorism of 9/11,
the US Administration asserted its right to strike at perceived threats,
suspects, to prevent any possible future attack. As distinct from
“prevention,” preemptive action as self-defence, when hostilities have
begun, would be acceptable within the UN Charter; but not jumping
WKHJXQRQ\RXURZQZKHQ\RXVXVSHFWVRPHIXWXUHWKUHDW<RXNQRZ
the story. If the US could do it, so could everyone. This would mean
anarchy. To rub salt into the wound, there was the bombing of the UN
mission in Baghdad, killing 19 UN people including the distinguished
6HUJHRGH0HOOR,UDTLVDPHVV&DQZHÀQGDQ\81KRSHLQ,UDT"
The only slender hope might be: we told you so.
History dishes up another bitter dish. Iraq was created by the Brit-
LVKDIWHUWKH)LUVW:RUOG:DU7KH%ULWLVKHQFRXQWHUHGÀHUFHUHVLVWDQFH
and simply bombed and strafed. The world neither knew nor cared.
Today norms of behaviour and TV make Iraq a world tragedy.
6RLQWRWKHEUHDFKMXPSV.RÀ$QQDQZLWKKLVGLVWLQJXLVKHG3DQHO
to look at threats and what to do about them. The Panel’s report will
soon be out. Meantime, I have been privileged to be briefed on what
the Panel will say.
The springboard for the Panel is threats, threats to peace and
VHFXULW\REYLRXVO\DMXPSVWDUWIURPWHUURULVPDQG,UDT%XW.RÀ
$QQDQWROGWKH3DQHOWRORRNGHHSGRZQLQWRVRXUFHVRIFRQÁLFW²WKH
Security Council’s mantra of “root causes.” In other words, how to
promote the economic and social development that underlies peace.
At the same time, he wanted the Panel to be real, to think about what
actually can be done. A nice balancing act.
The Panel made the following main points:
First, regarding structures, the General Assembly and the Security
Council. The General Committee should be strengthened so as to take
on the active management of the General Assembly. The General

Assembly should get out of its clutter and focus on some major prob-
lems. Instead of the six “Committees of the Whole,” small working
committees should be created to address current issues.
For the Security Council, two options were presented, both recom-
mending an increase in membership to 24. The option which, I think,
is more likely to work would add eight members with four-year terms
and one more with the existing two-year term.
Then, as to substance, what to do, the main thrust will be on helping
countries to achieve social and economic stability, to be serious about
development, aid and trade, pandemic disease and pollution.
It follows that the Security Council and the Secretary General must
push peace-building, an extension of the principle that governments
are responsible to protect their own people. Peace-building must have
its own prominent place in the Secretariat.
As for DUPHGFRQÁLFW, prevention (early warning) is the way to
go. The preventive arm of the Security Council and the Secretary
General should be greatly strengthened.
What about terrorism? The Panel suggested that state-sponsored
terrorism is already covered by existing treaties; and that the UN
VKRXOGWDNHRQIUHHZKHHOLQJWHUURULVPVSHFLÀFDOO\DLPHGDWLQQRFHQW
civilians. The Security Council must be much more active in the
SXUVXLWRIWHUURULVWVUHDFKLQJRXWEH\RQGRIÀFLDOVWRULHVFRPLQJIURP
governments.
On weapons of mass destruction, the Panel goes along with the
Blix/Salander Commission, pressing states to live up to their com-
mitments under the Non Proliferation Treaty concerning nuclear
ZHDSRQVWRFXUWDLODQGFOHDQXSÀVVLOHPDWHULDOV$EDQRQWKHH[SRUW
of biological pathogens has to be strengthened with help from the
World Health Organization.
Then on transnational crime, the means to follow through the
existing treaties have to be greatly strengthened, with special attention
to money laundering. Europe has led the way on how to get a handle
on international crime.
What is most encouraging is the way that development and security
are brought together, a unifying objective for the UN, indeed for the
whole UN system.
Where can the UN go from here? If the main lines laid out by the
Panel are followed, some old log-jams will be broken and new energy
released into this world drama. Bringing a substantial representation
of the developing world into the Security Council would go a long way
toward easing the tension between the P-5 and the General Assembly.
Managing, shaking down and focusing the General Assembly could
move this show from sterile talk to some useful work. And coalescing
the whole “Mother UN” on building a universal platform for peace
– the good society – would link the authority of the Security Council
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for social and economic development. What a new lease of life would
come if human security along with governing as protecting were to
carry the day. For the long haul, however, the Bretton Woods institu-
tions will have to be married to a new UN, giving some regulation and
direction to the huge global economy. And the sprawl of Specialized
Agencies must also be formally married to a new UN.
In the immediate, surely giant US will need the UN to salvage
Iraq; and to give some dignity and legitimacy to the treatment of
captive Saddam Hussein.
Of the critical importance is civil society, the voice of the people,
especially in those prominent democracies that can make or break
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sensitive issues and their unrelenting energy. What joy to see fresh and
sophisticated young people taking hold, as I have seen in the United
Nations Association in Canada. They are my best hope.
Short of mass suicide – the nuclear winter – the jerry-built UN
will survive and grow.
Nijhoff Law Specials
50. K. Wellens (ed.): Resolutions and Statements of the United Nations Security Council
(1946-2000). A Thematic Guide. 2001 ISBN 90-411-1722-9
51. P. Soar (ed.): The New International Directory of Legal Aid. 2001 ISBN 90-411-1718-0
52. C.M. Mazzoni (ed.): Ethics and Law in Biological Research. 2002 ISBN 90-411-1742-3
53. I. Omar: Emergency Powers and the Courts in India and Pakistan. 2002
ISBN 90-411-1775-X
54. M. O’Flaherty: Human Rights and the UN: Practice Before the Treaty Bodies. 2002
ISBN 90-411-1788-1
<%HLJEHGHUJudging Criminal Leaders. The Slow Erosion of Impunity. 2002
ISBN 90-411-1815-2
56. Marianne van Leeuwen (ed.): Confronting Terrorism: European Experiences, Threat
Perceptions, and Policies. 2003 ISBN 90-411-1960-4
57. Ralf Bredel: /RQJWHUP&RQÁLFW3UHYHQWLRQDQG,QGXVWULDO'HYHORSPHQWThe United
Nations and its Specialized Agency, UNIDO. 2003 ISBN 90-04-13619-3
58. Raphael Walden: Racism and Human Rights. 2004 ISBN 90-04-13651-7
59. Monique Leyenaar: Political Empowerment of Women: The Netherlands and Other
Countries. 2004 ISBN 90-04-14099-9
60. Sjurður Skaale (ed.): The Right to National Self-Determination: The Faroe Islands and
Greenland. 2004 ISBN 90-04-14207-X
61. Edward McWhinney: The September 11 Terrorist Attacks and the Invasion of Iraq in
Contemporary International Law: Opinions on the Emerging New World Order System.
2004 ISBN 90-04-14143-X
62. B.G. Ramcharan: The Protection Role of National Human Rights Institutions. 2005
ISBN 90-04-14526-5
63. Chris de Cooker: Accountability, Investigation and Due Process in International
Organizations. 2005 ISBN 90-04-14793-4
64. Peris S. Jones & Kristian Stokke: Democratising Development: The Politics of Socio-
Economic Rights in South Africa. 2005 ISBN 90-04-14821-3
65. Roy S. Lee (ed.): Swords Into Plowshares: Peace Building Through the United Nations.
2005 ISBN 90-04-15001-3
For more title in this series, consult our web site: http://www.brill.nl
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SWORDS INTO PLOWSHARES:

BUILDING PEACE THROUGH THE UNITED NATIONS

MARTINUS NIJHOFF PUBLISHERS

Printed on acid-free paper.

Koninklijke Brill NV incorporates the imprints Brill Academic Publishers,

All rights reserved. No part of this publication may be reproduced, stored in

Authorization to photocopy items for internal or personal use is granted by

Printed and bound in The Netherlands

“[N]ations…shall beat their swords into plowshares, and

to focus on current issues confronting the United Nations. A second

* Assistant Secretary-General, Department of Political Affairs, United Nations;

achievement: it has presided over an unprecedented 60-year period of

The Security Council and international law

The need for and the practice of teleological interpretation of the

New horizons of teleology

Council took a different approach. By establishing the international

And on April 28, 2004, the Council mandated, in Resolution

And now, how to improve decision-making in the

BUSH’S WAR HAS DAMAGED

apprised of the matter, the right to self-defence disappears, giving

Tension rose. In February 2003, the UK began investigating the

The proffering of so many rationales, sometimes together and some-

however reluctantly, had allowed inspections to proceed; and France

The system of collective security laid down in the UN Charter

President Bush, fortify this bulwark!

HUMAN RIGHTS AND ECONOMIC AND

activities of the Committee on Economic, Social and Cultural Rights

How, then, are we to approach our subject, human rights and

I. Human rights and poverty reduction

The instrumental value of the human rights framework for reducing

This school of thought is accompanied by another strand that

II. The Millennium Development Goals

reducing infant mortality and increasing access to clean drinking

III. Human rights and globalization

A central aspect of the nexus between human rights and globaliza-

IV. The principles of equality in international human

A fourth strand of reasoning in the human rights movement is that

V. Human rights and international trade

Thus, the recent decision of the WTO allowing countries producing

VI. The implementation of the right to development

right to development is potentially a bridge between the normative

made progress in taking the debate forward by arriving at agreed

VII. The least developed countries

two strategies for development in the LDCs. First, the importance

VIII. The United Nations Committee on Economic,

To date, the Committee has adopted 15 general comments, through

IX. The Special Rapporteurs on Economic, Social and

(a) Extreme poverty

a) Relevance of identity documents and keeping civil registration

on Economic, Social and Cultural Rights in its General Comment

I. The need for integrative approaches to sustainable

Environment and Development (Brundtland Commission) when it described

Amin has pointed out.2 While he was mainly referring to awareness

as much urgency to international awareness about the interdepend-

development by the International Court of Justice see *DEĀLNRYR1DJ\PDURV

ment has neither been as developed nor as sustainable as it should

development and social well-being, or civil, political, economic,

II. Resistance against the linkage between sustainable

itself is at issue. Readers of the Johannesburg Plan of Implementa-

acknowledgement of the tie between sustainable development and

ment and human rights” had to be considered a success as much as

participation of Member States of the United Nations and observer States.”

III. Conceptual and political concerns behind the

development by the International Court of Justice see *DEĀLNRYR1DJ\PDURV