This panel was convened at 1:00 p.m., Friday, April 10, by its moderator Niels Blokker of Leiden University, who introduced the panelists: Stephen Mathias of the United Nations Office of Legal Affairs; Kimberly Prost of the United Nations Security Council 1267 Sanctions Committee; August Reinisch of the University of Vienna; and Lisa Tabassi of the Organization for Security and Co-operation in Europe.
INTRODUCTORY REMARKS BY NIELS BLOKKER *
The theme of this year's annual meeting is "adapting to a rapidly changing world." It is obvious that many of the changes that are taking place in today's world bring challenges for international law. But it is also obvious that during the last few decades international law has developed rules and institutions to deal with these changes. Indeed, this is exactly why international organizations have been created: to manage change. The creation and functioning of international organizations is one important way in which the international community is trying to meet the challenges of change.
Kofi Annan stated some sixteen years ago before the UN General Assembly: "State sovereignty, in its most basic sense, is being redefined by the forces of globalization and international cooperation." What the hundreds of existing international organizations have in common is that they have been created because states considered it in their common interest to cooperate within a permanent framework in areas in which states could no longer perform their functions in isolation. This is true both for organizations created in the 19th century, such as the Universal Postal Union, and for those created later. It is also true for the United Nations and the European Union. And it is true for what is one of the most recently established international organizations, the International Commission on Missing Persons, created in December last year. The question to be discussed in this panel is what role international organizations have played in the processes of adapting to a changing world. To what extent have they been able to provide stability where this was required, for example by offering mechanisms for the peaceful resolution of conflicts, or recently by the creation of the Organization for Security and Co-Operation in Europe Special Monitoring Mission in East Ukraine? To what extent have they been able to promote change where this was necessary, for example by improving the UN financial sanctions regimes?
I had three things in mind when proposing and organizing this panel. First of all: many organizations were created long ago. The oldest, the Central Commission for the Navigation of the Rhine, was created exactly two hundred years ago. Many were created during and after the World War II. The powers and institutional structures they have reflect the time of their creation. But the world has profoundly changed. Have international organizations been able to keep pace with changes that occur in the areas in which they carry out their functions? If so, how? If not, why not? What should be improved?
Secondly, there have always been opposite views of international organizations. There are the popular stereotypes that they are either static, sluggish bureaucracies or too dynamic mission creepers. More sophisticated is the distinction between international organizations as forums and as actors. The more traditional view is that they are mostly forums, frameworks available for states to cooperate when they want. According to another view, many international organizations are more than just forums; more than the sum of their members, they are also autonomous actors. Already in 1961, UN Secretary-General Dag Hammarskjold outlined essentially these two views of the United Nations in the introduction to his annual report (the United Nations as a static conference machinery and the United Nations as a dynamic instrument). These views have implications for the role one may see for international organizations in dealing with changes in international society. If you prefer the first view, it is for the member states to use international organizations in taking up current challenges. If you prefer the second view, it is also for the organizations concerned to do so. Always however, it is fundamental to distinguish between the role of the organization and that of its members, as we have seen in recent years when rules were developed on the responsibility of international organizations and when cases were brought before national and international courts in this area.
Thirdly, it is a must, and it is fascinating, to analyze developments in practice in this field. So much is happening in practice. As Einstein once observed: "Die Welt vor uns, ein geoffnetes Buch. Wenn wir es nur lesen konnen" ("The world before us, an open book. If only we were able to read it"). Academics need to calibrate, rethink and, where necessary, adjust their fundamental concepts and views. Otherwise they will not be able to see and understand how in practice international organizations and their members try to find solutions for nowadays' challenges. Therefore most of the speakers in this panel have extensive experience in the legal practice of international organizations.
* Professor of International Institutional Law (Schermers Chair) at the Grotius Centre for International Legal Studies, Leiden University, The Netherlands.
THE UNITED NATIONS: A LABORATORY OF ADAPTATION FOR SEVENTY YEARS
By Stephen Mathias *
Good afternoon. I would like to begin by thanking the organizers and Niels Blokker for inviting me to be part of this panel.
My presentation today will address the experience of the United Nations in the context of adaptation. My thesis will be that the United Nations has served for seventy years as a laboratory of adaptation, and that evolutionary adaptation is the larger part of what the United Nations does.
For example, peacekeeping can be seen as an early adaptation, arising from the fact that practice under UN Charter ("Charter") Articles 43-47 did not develop as foreseen. Today there are 120,000 soldiers, police, and civilians in the field, and the peacekeeping budget far exceeds the organization's regular budget. But adaptation is an ongoing process. There are many other adaptations, including recent ones. Today I will touch on recent cases involving the United Nations' role in addressing Syria's chemical weapons and Ebola. It is also the case that adaptations are themselves adapted, as I will describe some recent adaptations in peacekeeping.
I would like to begin, however, by asking what we mean by adaptation? I will use the term today to mean an intergovernmental organization undertaking functions that may not have been contemplated in its constituent treaty or undertaking contemplated functions in a way other than that contemplated. In such a case, the applicable legal regime must be consistent with the adaptation. The United Nations may be particularly open to adaptation, given its broad purposes and the broad range of responsibilities accorded to its organs in the Charter, and its flexible rules, including in respect of the establishment of subsidiary organs.
It may also be appropriate to note the doctrine of implied powers, as developed by the International Court of Justice (ICJ), and the relevance of the practice of the organs of the organization, as also confirmed by the ICJ. The attractiveness of the United Nations as a forum for adaptation may also be enhanced by its universality, its legitimacy, and its comprehensive and widely accepted privileges and immunities.
Who is doing the adapting? In the first instance, it is the member states acting through the intergovernmental bodies. An example would be the creation of subsidiary organs or related entities, although it must be noted that this is often on the basis of a Secretary-General (SG) report, which reflects an integral role for the Secretariat as a catalyst for adaptation and change. Implementation is most often by the SG and the Secretariat. In the course of implementation, additional adaptations may be introduced. An example of this phenomenon is the Human Rights Due Diligence Policy (HRDDP).
As the nature of peacekeeping changed, so did the relationships with national security forces. Initially in the context of Security Council-mandated UN assistance to the government security forces (FARDC) in the Democratic Republic of Congo, there developed a concern about UN assistance to security forces that may themselves engage in violations of international humanitarian law (IHL) or human rights (HR) law. This led to development of policy, initially called the "conditionality" policy and later implemented on a system- wide basis as the HRDDP, that has three main elements: first, where a UN entity is contemplating providing support to non-UN security forces, but has substantial grounds for believing that there is a real risk of those forces committing grave violations of IHL, HR, or refugee law, then the United Nations is obliged to refrain from providing support; second, if a UN entity is providing support and then receives information that gives it reasonable grounds to suspect that forces are committing grave violations, then it must intercede with the command elements with a view to putting a stop to the violations; and third, if such violations continue, then the UN entity will be forced to suspend or withdraw support from the forces concerned.
In this case, the Secretariat led and the member states followed. The Security Council and the General Assembly have both endorsed the policy. It is also being implemented in practice, as has been seen recently in the UN decision not to support certain units of the FARDC. A similar pattern can be observed in the development of the Human Rights Screening Policy and the policy with respect to sexual exploitation and abuse (SEA).
A more general example of adaptation might be the evolution of the three traditional...