Understanding beyond solutions

Transcrição

UNDERSTANDING BEYOND SOLUTIONS
Bruno Gomes Guimarães (coord.)
Luíza Leão Soares Pereira (coord.)
Athos Munhoz Moreira da Silva (coord.)
Understanding beyond
solutions
UFRGSMUN: beyond modelling
First edition
Porto Alegre, November 2011.
UFRGS Model United Nations
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© 2011 UFRGS Model United Nations
All rights reserved. No part of this book may be reproduced without the consent of at
least two of the organizers, except in the case of brief quotations in scholarly texts.
Guimarães, Bruno Gomes, 1989
Understanding beyond solutions: UFRGSMUN: beyond modelling /
coordinated by Bruno Gomes Guimarães, Luíza Leão Soares Pereira
and Athos Munhoz Moreira da Silva. — Porto Alegre, Instituto SulAmericano de Política e Estratégia (ISAPE), 2011.
viii 287p. : il. ; 21cm.
ISBN: 978-85-65135-00-9 (printed)
ISBN: 978-85-65135-01-6 (eBook)
1. International relations — organizations 2. United Nations 3. Conflict
and conflict resolution I. Title
DDC 327.06
For the understanding among all peoples
Contents
Chapter 1
Chapter 2
Chapter 3
PRESENTATION
1
GENERAL ASSEMBLY: SPECIAL POLITICAL
AND DECOLONIZATION COMMITTEE
2
TOPIC A: Multinational sources of fresh water and
international security
Walter Lorenzo Zilio Motta de Souza, Laura Vicentin
Lammerhit and Bruno Gomes Guimarães
3
TOPIC B: Political, securitarian and infrastructural
state-building
Athos Munhoz Moreira da Silva, Julien Marcel
Demeulemeester, Luíza Gimenez Cerioli, Bruno Gomes
Guimarães and Luíza Leão Soares Pereira
18
UNITED NATIONS HUMAN RIGHTS COUNCIL
43
TOPIC A: The activities of Private Military and
Security Companies and human rights violations
Cláudia Pfeifer Cruz, Luíza Leão Soares Pereira and
Raoni Fonseca Duarte
45
TOPIC B: Extra-judicial killings: targeted killings
of non-state actors
Anaís Medeiro Passos, Gabriela Antunes and Luíza Leão
Soares Pereira
66
INTERNATIONAL COURT OF JUSTICE
87
TOPIC A: Questions relating to the obligation to
prosecute or extradite (Belgium vs. Senegal)
Luíza Leão Soares Pereira, Mariana Camargo Contessa
and Mariana Bom
89
TOPIC B: Application of the Interim Accord of 13
September 1995 (The Former Yugoslav Republic
of Macedonia vs. Greece)
103
Luíza Leão Soares Pereira, Mariana Camargo Contessa
and Mariana Bom
Chapter 4
Chapter 5
Chapter 6
UNITED NATIONS SECURITY COUNCIL
117
TOPIC A: The situation in Côte D’Ivoire
Isadora Loreto da Silveira, Alexandre Spohr, Luiza
Olmedo, Josuá Gihad Soares and Giulia Barão
119
TOPIC B: The situation in Libya
Alexandre Spohr, Isadora Loreto da Silveira, Luiza
Olmedo, Josuá Gihad Soares and Giulia Barão
136
WORLD BANK
154
TOPIC: Energy supply in Asia
Iara Binta Lima Machado, Isadora Steffens, Giovani
Bastiani Roggia, Bruno Gomes Guimarães and Brunna
Bozzi Feijó
155
ASSOCIATION OF SOUTHEAST
NATIONS REGIONAL FORUM
ASIAN
199
TOPIC A: Stability in Northeast Asia: the case of
the Korean Peninsula
Bruno Magno, Rômulo Barizon Pitt and Pedro Vinícius
Pereira Brites
200
TOPIC B: The situation in Myanmar
Marcelo de Mello Kanter and Bruno Kern Duarte
217
REFERENCES
235
ABOUT THE CONTRIBUTORS
281
ACKNOWLEDGMENTS
287
Presentation
UFRGS Model United Nations 2011 is part of a tradition that has somehow been
part of this event since its beginning in 2003 and has been developing for
subsequent modelling generations. For the past nine years, UFRGSMUNers have
come to an agreement that we live in a world which has many flaws, currently
evidenced in the many raging conflicts that somehow affect all of us. The ideas that
we share is that the shaping of a peaceful world is only attainable through the
understanding of possible solutions and of the plurality of views that are given to us
by the international community, so different and so numerous. The
abovementioned harmony that is sought by all that study and try to understand the
world, in our view, passes by severe criticism, high academic standards and
unveiling of naïveté, associated with hope for the best possible solutions.
This study guide and all the work of the 2011 staff is framed by the conscience
that idealism has to be pragmatic, at the stake that utopia will never come to
happen. Hence, in UFRGSMUN’s ninth edition, the six committees and eleven topics
are permeated by one certainty: Their solutions are interwoven with conflicting
interests and definitely carry heavy-weight political meanings. Hence, finding the
best solution means putting a lot of effort in disentangling different views of the
world. Bearing that in mind, it demonstrates that the spirit of UFRGSMUN consists
of a realistic view of the world, which is truly key in the understanding of
International Relations, independent of personal judgments any of us may have on
its merits.
Regardless of what we want International Relations and International Law to be,
the truth is that understanding beyond the solutions given by individual states and
by international and regional organizations is a part of our role. This is what made
us chose this year’s motto, capturing what we feel participants should be given by a
study guide, by a model and by the studying of international matters as a whole.
We have worked restlessly in trying to reach and reveal all reasons beneath
positions, because you can only change what you truly understand. Through that,
we try to recapture the spirit of the United Nations, and the environment in which
decisions are made so as to attain results that are as close to reality as possible. This
way, modeling can be an experience that is faithful to its meaning.
All that said, we wish all participants a glorious event, full of academic
excellence, personal growth and critical thinking. These study guides have carried
our hopes of being the best possible material for preparation and for the fidelity to
high standards that we hope you all take into your Committees, so as to make the
best of this life-changing experience.
Warm regards,
UFRGSMUN 2011 SECRETARIAT
1
Chapter 1
UNITED NATIONS
GENERAL ASSEMBLY:
SPECIAL POLITICAL AND
DECOLONIZATION COMMITTEE
INTRODUCTION
The Special Political and Decolonization Committee (SPECPOL), or the Fourth
Committee of the United Nations General Assembly, as it is also known, was created
in 1993 in accordance with the General Assembly Resolution 47/233. Its main
objective was to address significant political matters that the First Committee
(Disarmament and International Security—DISEC) was not able to handle, such as
self-determination, decolonization, and other international security matters. Later,
SPECPOL was given a broader overall scope with other topics to address due to its
success in coping with the Palestine Question, among others.
Currently, SPECPOL can be viewed as the UN Security Council’s entrance door,
since the issues discussed at the Council are often assessed earlier by the General
Assembly through SPECPOL—not only because of the broader approach it has in
terms of international security, but also because it allows all UN member states to be
heard before the question reaches other organs. Since it is a General Assembly
committee, all of the UN member states can participate in its discussions with one
vote to each one of them. SPECPOL’s resolutions are not binding, but they are very
appealing to the international community, for the reason that they reflect the
opinion of the majority regarding substantive matters.
This year, UFRGSMUN’s SPECPOL proposes two very pertinent and stimulating
topics to be discussed. The first one invites the delegates to consider the threats to
international security which could come from conflicts over multinational sources
of fresh water. The second topic handles with international processes of statebuilding, giving greater attention to infrastructural, securitarian and political issues.
2
TOPIC A: Multinational sources of fresh water and international security
Walter Lorenzo Zilio Motta de Souza, Laura Vicentin Lammerhit and Bruno
Gomes Guimarães
The General Assembly recognizes the right to safe and clean drinking water and sanitation as a human
right that is essential for the full enjoyment of life and all human rights
General Assembly Resolution 64/292
28 July 2010
1. HISTORICAL BACKGROUND
It is well known that many ancient civilizations, such as the ones in
Mesopotamia and Egypt, developed around rivers and deltas, for they already knew
that the survival of the human race depended on water distribution systems. Water
has played a very important role throughout History. It was a main actor in the
evolution of agriculture and in the setting of cultural values of different
communities. It has changed in importance as cities grew bigger, with the process of
industrialization taking place and the world population growing rapidly as it did
back then.
As its importance is so patent, it has also led to several conflicts in the Ancient
world. The first one known by historians happened in 3000 B.C. between ancient
Sumerians. Later, it was the main cause of belligerence between Egyptians,
Armenians, Babylonians, Assyrians, Greeks and Romans (GLEICK, 2008), which
attests that water conflicts are as old as civilization itself. However, not only
conflicts were caused by fresh water issues. The Persians, for example, created an
ingenious hydraulic engineering contribution with their qanats, a subterranean
system of tunnels used to collect and transport water—a method copied in the Arab
world as well as in the Roman Empire, developing the benefits of cooperation
between different peoples.
Since the beginning of the Industrial Revolution and the consequent increase of
urban population, water has started to become an even more delicate issue, forcing
the development of adequate infrastructure to transport huge volumes of water
from distant sources into cities. Later, it has also started being used for the purposes
of energy generation and agricultural intensification. In addition to that, with
industrialization another problem appeared: water pollution. However, no official
policy was adopted by governments to handle the situation—even with the
knowledge of its importance.
The progressive need for water has ended up resulting in several conflicts at
both regional and international levels. Most of them can be related with diseases—
due to the lack of access to basic sanitation—, migration, violence and government
instability, known by many as the “water wars” (CARIUS, DABELKO & WOLF, 2004).
These conflicts involved several different countries. For example, in 1898, there was
a military conflict between Britain and France to gain control of the headwaters of
the White Nile, in Egypt. And during the World Wars, there were quarrels between
China and Japan, Germany and the Netherlands and Germany, Italy, Britain and
3
Romania (GLEICK, 2008), all of which treated water-related issues as military targets
or tools.
During the Cold War, with the decolonization process taking place, more
pressing water-related matters have sprouted in the Middle East, Indochina, Korean
Peninsula, Southeast Asia and Africa. This happened mainly due to the emergence of
newly independent countries.
The dependence of several countries on the same water system may lead either
to conflict or to cooperation between the involved states. In the first case, the
historical examples presented above show the rivalries being responsible for
destroying, blocking or poisoning the water storage facilities of the adversaries. In
the second, the need to control water could motivate collaboration among humans
as well as organizations.
The challenge to the international community evidently relies on the first case,
bearing in mind that water dispute conflicts are getting more and more numerous as
the time goes by, and it is widespread in all continents. Regions such as Southeast
Asia, Northern Africa and the Middle East have historically tended to be, however,
more problematic, not only because of their unsolved political issues, but also
because of their vast semi-arid and arid regions. Classical cases of transboundary
disputes include those that concern the rivers Nile (Africa), Jordan, Tigris-Euphrates
(Middle East), Mekong, Indus, Mahakali, Ganges (Southeast Asia) and some of them
are still not entirely solved.
2. STATEMENT OF THE ISSUE
2.1. INTRODUCTION TO PROCESSES OF WATER AND ITS UNEQUAL DISTRIBUTION
Water is a commodity of great importance for the survival of living beings, the
maintenance of ecosystems and their production processes. Its uses range from the
simple hydration of plants and animals to industrial complexes as an input. In the
case of human activities, the production of food through irrigation systems is the
main use of water for human survival and trading. As the world population
increases, the sound management of water becomes more important, in order to
avoid water pollution and scarcity. Furthermore, misuse of this commodity can lead
to serious inter and intrastate conflicts, whose causes and consequences shall be
discussed later.
In order to understand water processes and its conflicts, it is important to
analyze some basic aspects of water. According to the United States Geological
Survey (2011b), 97% of world water is saline and available in oceans and 3% are
fresh. Of the fresh water, 68.7% is locked up in glaciers and icecaps, 30.1% is
groundwater (aquifers) and 0.3% is surface water (in rivers, lakes and swamps) (US,
2011b). Presently, ground and surface water are the most used sources, given their
availabilities and low prospection costs.
4
Figure 1 — Hydrologic cycle diagram
In order to understand what controls the availability of water in these sources,
one must understand the hydrological cycle (see Figure 1). Therefore, one must
understand that “the hydrological cycle describes the constant movement of water
above, on, and below the Earth’s surface” (HYDROLOGICAL, n.d.). In addition, it can
be noticed that “water percolates to the zone of saturation, or groundwater, from
where it moves downward and laterally to sites of groundwater discharge [rivers,
lakes and oceans]” (HYDROLOGICAL, n.d.). That shows the important connection
between ground and surface water. Therefore, precipitation, infiltration and
evaporation are main keys on water dynamics, so an anthropogenic influence on
them can modify (surface and ground) water distribution and availability in a
region.
As told before, ground water is the main source of freshwater, yet not so
exploited as lakes and rivers. Reservoirs of ground water are known as aquifers.
They are constituted by a water-saturated soil zone beneath the water table (or
phreatic surface) and frequently recharged by precipitation (US, 2011c). On the
other hand, rivers are inserted in another logic: The topographic area where rivers
are recharged is known as drainage basin (or watershed). Moreover:
[P]recipitation, which is the source of virtually all freshwater in the
hydrologic cycle, falls nearly everywhere, but its distribution is highly
variable. Similarly, evaporation and transpiration return water to the
atmosphere nearly everywhere, but evaporation and transpiration
rates vary considerably according to climatic conditions (WINTER et
al., 1998, p. 2).
Thus, water distribution, in the form of basins and aquifers, do have great
variance in time and space as a result of interactions of natural (or anthropogenic)
5
factors. As a consequence of this unequal distribution, river watersheds and aquifers
are not restricted to countries borderlines.
Besides distribution and current availability, studies must also consider future
availability of water due to climate change. The Intergovernmental Panel for
Climate Change (IPCC) publications on climate change showed the uncertainties
about the situation of water throughout the world. In 2008, a technical group of IPCC
prepared a paper related to impacts of climate change on water called “Climate
Change and Water”. According to this report:
by the middle of the 21st century, annual average river runoff and
water availability are projected to increase as a result of climate
change at high latitudes and in some wet tropical areas, and decrease
over some dry regions at mid-latitudes and in the dry tropics (BATES
et al., 2008, p.3).
Additionally, “water supplies stored in glaciers and snow cover are projected to
decline in the course of the century” (BATES et al., 2008, p.3), affecting populations
supplied by melt water from mountains—one-sixth of the world’s population.
Concerning water quality, Bates also alerts that:
higher water temperatures, increased precipitation intensity, and
longer periods of low flows are projected to exacerbate many forms of
water pollution, including sediments, nutrients, dissolved organic
carbon, pathogens, pesticides, salt and thermal pollution (BATES et al.,
2008, p. 43).
Concerns associated to availability and distribution of water established the
concept of “virtual water”, which comprises “the volume of water used to produce a
commodity” (INTERNATIONAL, 2008). In accordance to this theory, international
trading system implies flows of virtual water between countries. Hence, “for waterscarce countries it can be attractive to import water-intensive products, thus
relieving the pressure on the domestic water resources”. From this, virtual water
can be understood as a valuable tool to assess dynamics on water demand and an
alternative for countries with water scarcity.
As uncertainties about future water availability grow, dynamics of virtual water
may become extremely important in states affected by climate change in the short
and medium terms. If a country becomes unable to produce hydroelectricity, food or
goods, it may grow to be extremely dependent on foreign water resources. This
could clearly undermine the economic sovereignty of a country, which in turn may
also raise regional tensions, raising serious threats to the international security,
besides the internal feature of the matter.
2.2. HUMAN SECURITY AND INTERNAL SECURITY
The The concept of human security comes to take the focus from the country—
and defending its borders—to the human being. It involves the conditions for the
wellbeing as well as access to the universal rights. The UNDP (1994) points out two
main aspects of human security: “it means safety from such chronic threats as
hunger, disease and repression; and it means protection from sudden and hurtful
disruptions in the patterns of daily life-whether”. Thus, only a convergence of
6
efforts towards a participatory development and sustainable human development
can lead to increase human security; it is a paradigm shift that puts military tools in
the background.
In order to assess threats to human security in a region, seven main dimensions
shall be considered: economic security, food security, health security,
environmental security, personal security, community security, political security
(UNDP, 1994). Particularly concerning environmental security, water and soil
pollution and maintenance of ecosystem services need to be evaluated.
Consequently the water issue is clearly inserted in an environmental security as well
as in a food security dimension (bearing in mind physical limitations of food
production).
Considering environmental security dimension, water quantity and quality are
critical factors to assess human security. Bates and others’ projections lead to a
situation of water shortage in many regions:
Changes in water quantity and quality due to climate change are
expected to affect food availability, stability, access and utilization.
This is expected to lead to decreased food security and increased
vulnerability of poor rural farmers, especially in the arid and semi-arid
tropics and Asian and African mega deltas (BATES et al., 2008, p.3).
In this sense, water shortage can be understood as a lack of quality, lack of
quantity (when compared to demand) or even lack of economic funds for water
supply systems—known as “economic water shortage”.
In the case of water quality, “increasing levels of industrial and municipal
pollution in developing regions as well as ongoing salinization of water bodies,
especially in the dry lands, threaten existing supply” (WATER, n.d.). Regions where
water resources are polluted require specialized treatment, increasing costs of water
supply systems. Moreover, lack of basic sanitation endangers human security
spreading water diseases and polluting watersheds with wastewater.
Relating to quantity, water scarcity can be measured by Falkenmark Water Stress
Index that considers a situation of water scarcity less than 1000 cubic meters of
water per capital per annum in a region or a country (WATER, n.d.). In arid regions,
like in Middle East, water is normally unavailable and unequally distributed, posing
population in risk in a bad management case. Even in regions rich in water
(superficial or ground water) problems of overexploitation can dry aquifers, starting
local conflicts. Generally in both situations of water shortage, conflicts “threaten to
undermine human security and bring different communities into dispute” (RENNER,
2010), thus weakening internal security of a region or a country.
When considering food security dimension, water constitutes an important
aspect of it. Threats to food security impose consequences of small and large scale:
from human to internal security. Food production clearly depends on water
availability all over the world. In a small scale, rural populations are susceptible to
temporal and spatial variations of hydrological cycle, affecting food availability,
undermining food security.
In a large scale, “recurring drought and floods have led to the loss of rural
livelihoods and food insecurity. These desperate conditions have triggered local
7
conflicts and migration to cities” (RENNER, 2010). These extreme conditions allied to
global warming are subject of some researches on climate change impacts on
agriculture. Although not conclusive, researches point out that some grain crops are
already being affected by climate change (REARDON, 2011).
Consequently, migration appears as an intra-state problem, revealing a new side
of water shortage issue that relates to internal security. Besides food production,
Homer-Dixon apud Khagram et al. (2003) come up with two processes that can lead
to large-scale problems of water scarcity: “resource capture” and “ecological
marginalization”. Resource capture “occurs when the supply of a resource decreases
due to either depletion or degradation and/or demand increases (…) This
encourages the more powerful groups in a society to exercise more control of the
scarce resource” (KHAGRAM et al., 2003, p. 295). Still, the ecological marginalization
“entails the long-term migration of disadvantaged populations to ecologically
fragile areas” increasing social conflicts (KHAGRAM et al., 2003, p. 295).
Internal security shall also be assessed through the risks on real conflicts within
countries. Homer-Dixon (apud DESSLER, 1999) asserts that the influence of resource
scarcity in conflicts is mediated by social, economic and political factors. So, in most
of the cases water scarcity does not lead to conflicts directly, but indirectly.
2.3. WATER AND INTERNATIONAL SECURITY
Degradation of human security effects naturally can cross borders of a nation,
affecting a whole region, which undermines international security. Although
international security is traditionally understood as protection of a state from
military attacks, this concept has expanded in many directions, including
environmental, economic and human security dimensions. Besides, the linkages
between natural resources and international security have increasingly been
gaining importance in international debate. Turning natural resources into a
security issue brings into question the possible role of water resources on peacekeeping and peace-building in the international scene (TIGNINO, 2010).
According to Gleick (1993), “interstate conflicts are caused by many factors,
including religious animosities, ideological disputes, arguments over borders and
economic competition”. His study adds that conflicts are not initiated by water
issues, but they can potentiate them. Increasing demand for water through human
population growing, through living standards increasing and climate changes
uncertainties aggravate the natural unequal distribution and scarcity of water.
In a region of water scarcity, competition for supplies can lead nations to assess
water as a national security issue (GLEICK, 1993). Guslits (2011) points out that water
is “crucial for human survival as well as economic stability”. Lack of water may
undermine economic capability of a country, since industries and agriculture would
be intensely affected. From this contentious social problems occur, weakening the
economic and political power of a state. Combined with economic weakening, largescale migrations of ecologically marginalized populations 1 can take preponderant
role in increasing tension of a region.
1
Due to climate change reality, climate refugees may worsen migration within ecological marginalization
issue.
8
According to UN Water (2008, p.1) there are 263 transboundary lake and river
basins and approximately 300 transboundary aquifer systems, which involves a
great part of the world population. Differences between neighbor countries needs
and interests can create instabilities and disputes on water resources. Competition
of agriculture, hydropower, urban and industrial uses and the limitation of water
quantity and quality threaten economically fragile states. For example Tajikistan, in
the upper Amu-Darya River (Aral Sea basin), interests in hydropower menace
Uzbekistan (lower Amu-Darya River) irrigations. As well, Afghanistan (upper AmuDarya River) can develop its hydropower potential in a future situation of stability,
increasing water demand in the basin (RENNER, 2009).
Analyzing a pattern on water conflicts, Gleick (2009) exposes six typical
categories or types of conflicts on fresh water. They reflect how water can take part
into conflicts.
 Control of Water Resources: when water supplies or access to water is at the
root of apprehensions, due to potentialities of energy and water or even
guarantee of good quality of water;
 military tool: when water resources, or water systems themselves, are used by
a nation or state as a weapon during a military action;
 political tool: when water resources, or water systems themselves, are used by
a nation, state, or non-state actor for a political goal;
 terrorism: when water resources, or water systems, are either targets or tools
of violence or coercion by non-state actors;
 military target: when water resource systems (and sanitation systems) are
targets of military actions by nations or states;
 development disputes: when water resources or water systems are a major
source of contention and dispute in the context of economic and social
development, such as competition on exploitation of aquifers.
When dealing with shared fresh water resources, one state’s act can endanger
another’s environment. Thus, there are two typical situations of this interaction:
transboundary basins (where the upstream country intervenes in water quantity
and quality of downstream one) and shared aquifers (where one’s exploitation
affects another). Water rights of downstream countries can be undermined by
approaches that give absolute sovereignty or priority use (named “prior
appropriation principle”) to the upstream country (APCSS, 1999). Therefore,
equitable principles urge to be better assessed in order to avoid increasing tensions
and degradation of diplomatic relations within basins as well as a sound
management of shared aquifers.
Taking into account the adoption of equitable principles, many multilateral
agreements make explicit the need for individual uses do not cause harm to water
resources from another countries. In this issue, there are at least two difficulties in
finding an optimal point for negotiation: the clearness of “not to cause harm”
principle and the asymmetry of power within states that share water resources.
Concerning the first issue, any enterprise or use of water by a country in an
aquifer will affect water availability in other countries. In other words, to measure
9
harms to water resources is a great challenge that may raise doubts in any
agreement. Further, concerning the second issue, in many river basins states
divergent interests (such as hydropower and irrigation) create instabilities hard to
solve due to the asymmetry of power in the region.
For example in Mekong River Basin (in the Southeast Asia) many countries
depend on irrigation, fisheries and primary uses of water. Thailand (the most energy
demanding state in the region) pressures the approval of hydropower dams in the
basin (SNEDDON & FOX, 2005). Inevitably Thailand interests influence neighbouring
countries’ economy and capacity.
2.4. PREVENTION OF CONFLICTS AND COOPERATION
Although the complexity of water politics and conflict resolution, Mostert (2003)
points out that the pathway to prevention is through cooperation:
Cooperation does not require common goals. Cooperation can also
mean that the cooperating partners reach a compromise to prevent
escalation, or that they jointly formulate a package deal that serves
their (different) objectives as much as possible (MOSTERT, 2003).
Cooperation may be given in various ways, such as the simple exchange of
hydrological and geological information, or to inform future plans and projects that
cause hydrological alteration of the river basin or aquifers, known as principle of
information exchange, notification and consultation. Thus the affected countries
can assess the impact and viability of living with the changes. This assessment can
still be together in the form of commissions (as the Mekong River Basin
Commission).
Some traditional principles guide the strategies of cooperation, since the
introduction of Helsinki Rules (best explained in section 3), such as:
the theory of limited territorial sovereignty; the principle of equitable
and reasonable utilization; an obligation not to cause significant harm;
the principles of cooperation, information exchange, notification and
consultation; and the peaceful settlement of disputes (RAHAMAN,
2009, p. 160).
The theory of limited territorial sovereignty is based on the freedom of using
shared rivers, since this utilization does not undermine interests of co-riparian
countries. The principle of equitable and reasonable utilization follows the same
idea, but set many factors to be assessed in order to determine an equitable
utilization. It was best founded in Helsinki Rules. Yet, the obligation not to cause
harm principle works on the idea that states shall not use the watercourses in order
to cause harm to other countries. And finally, the peaceful settlement of disputes
principle brings the role of an independent organisation, which can arbitrate the
conflict in the case of failure of negotiations (RAHAMAN, 2009).
As seen in section 2.1, due to climate change predictions water conflicts are
expected to increase even more. However nowadays they have already become
reality. Human security, internal security and governance and international security
turn out to be main keys related to current water conflicts in the international
agenda. Integrated management of international aquifers and basins urge to be
10
deeply discussed in order to solve emerging and potential conflicts around the
globe.
3. PREVIOUS INTERNATIONAL ACTION
As stated before, these principles arise along with the need for building
consistent international laws on transboundary water issue. There are three main
documents on this subject which should be considered: Helsinki Rules, United
Nations Watercourses Convention and Berlin Rules.
Although European states subscribed some regional treaties on freedom of
navigation during Industrial Revolution, two World Wars (and security concerns)
restricted international uses of watercourses (SALMAN, 2007a). However, the
growing need of non-navigational uses—such as dams, hydropower and irrigation—
put the challenge of watercourses regulation in the second half of the 20 th century.
For that purpose, in 1966 the International Law Association 2 (ILA) approved the
“Helsinki Rules on the Uses of the Waters of International Rivers”, which is a
document relating good principles of international uses of water, concerning
drainage basins (surface and ground water). Helsinki Rules address many factors to
be considered, such as:
(a) the geography of the basin, including in particular, the extent of
the drainage area in the territory of each basin state; (b) the hydrology
of the basin, including in particular the contribution of water by each
basin state; (c) the climate affecting the basin; (d) the past utilization
of the waters of the basin, including in particular, existing utilization
[clearly understood as prior appropriation]; (e) the economic and social
needs of each basin state; (f) the population dependent on the waters
of the basin in each basin state; (g) the comparative costs of
alternative means of satisfying the economic and social needs of each
basin state; (h) the availability of other resources; (i) the avoidance of
unnecessary waste in the utilization of waters of the basin; (j) the
practicability of compensation to one or more of the co-basin states as
a means of adjusting conflicts among uses; and (k) the degree to which
the needs of a basin state may be satisfied, without causing substantial
injury to a co-basin state (ILA, 1966 apud SALMAN, 2007).
Moreover, reasonable and equitable utilization were the main principles in this
document, as well the obligation to riparian states to share information about the
basin. Although Helsinki Rules are not legally binding, they were a breakthrough in
international water law, inspiring many agreements and culminating in the United
Nations Convention on the Law of Non-Navigational Uses of International
Watercourses, also known as the UN Watercourses Convention (UN, 1997).
This Convention was the result of series of studies sponsored by the United
Nations International Law Commission (ILC), based on Helsinki Rules and on judicial
and arbitral decisions on international watercourses. It was conceived as a legally
2
International Law Association is an independent non-profit organisation dedicated to the study of
international law, based in Great Britain.
11
binding normative instrument for the prevention on water conflicts, and it is based
mainly on “equitable and reasonable utilization” and “the obligation not to cause
harm” (SALMAN, 2007a). In its scope, it sets the obligation to cooperate; prior
notification for planned measures; ways of protection, preservation and
management of water resources; and establishes dispute settlement alternatives
(UN, 1997). The Convention also stipulates that in the absence of agreement, no use
of international waters has inherent priority over other uses, with special regard
given to “vital human needs” in the case of conflicts (UN, 1997, article 10).
As of September 1st, 2011, only 24 countries had ratified the Convention, which is
not enough for the document to enter into force, since:
The present Convention shall enter into force on the ninetieth day
following the date of deposit of the thirty-fifth instrument of
ratification, acceptance, approval or accession with the SecretaryGeneral of the United Nations (UN, 1997, article 36, §1).
Salman (2007b) attributes the failure of the Convention to the paradox between
the “equitable and reasonable utilization” principle (articles 5 and 6) and the
“obligation not to cause harm” (article 7). The author also adds that the first
subjugates the latter, displeasing many lower riparian countries, whose water and
other natural resources remain susceptible to damages due to projects of the upper
riparian state.
Finally, the document entitled Berlin Rules, 2004, is an ILA enhancement to the
rules established in Helsinki. It is based on Helsinki Rules and acquired experiences
of UN Watercourses Convention. Its main objective was introducing the obligation
not to harm to the same level as the equitable use of international waters principle.
Moreover, the Berlin Rules proposes to appear as worldwide guidelines for national
waters, as well as international ones (SALMAN, 2007a).
Based on guidelines, conventions and judicial decisions, many agreements and
joint commissions have been made in order to integrate efforts and interests to
promote the sound management of transboundary waters. Beyond these
international multilateral agreements, bilateral and regional ones have also been
traditional ways to build cooperation on the issue. Yet bilateral or regional
agreements can start negotiations that may afterwards become bigger and more
complete initiatives. The Mekong River Commission is an interesting example of
cooperation built through a long approaching process between co-riparian
countries.
3.1. MEKONG RIVER COMMISSION (MRC)
Mekong River basin comprehends six co-riparian countries, from upstream to
downstream: The People’s Republic of China, Myanmar, Thailand, Laos, Cambodia
and Vietnam. The initiative of managing the Mekong River system (including its
tributaries) dates back to 1957 with the former Mekong Committee and progressed
with bilateral and multilateral agreements. It culminated in the 1995 Mekong River
Commission Agreement between Thailand, Laos, Cambodia and Vietnam.
12
At the root of the negotiations, information about the states’ plans for the river
basin had to be given. Thus, open negotiations on the interests could be assessed.
Phillips et al. provide the political scene in the region:
Thailand seeks cheap energy (hydropower), more water for its
modernized agriculture sector, and enhanced flows in the Chao Praya
Basin stretching through central parts of the country; Laos primarily
wishes to realize its hydropower generating potential; Cambodia
would be best served by the conservation of the current hydrological
regime, including the seasonal flooding which gives rise to the huge
fishery; and Vietnam wishes to construct hydropower facilities in the
central highlands, as well as to protect the efficient agriculture and
aquaculture production in the Delta (PHILLIPS et al., 2006, p. 96).
The contrast in the plans is clear. However, principles of reasonable and
equitable utilization were adopted from the beginning of the partnership. Moreover,
the Mekong River Commission endorses prevention and cessation of harmful effects
and prior consultation principles as other relevant principles.
Still, MRC works along three axes: Water Utilization Program, a technical
working group providing hydrological data and monitoring strategies; the Basin
Development Plan, a political group that aims to plan the utilization of available
water resources of the region, through projects, scenarios modeling ways for the
economic growth of all MRC members; and the Environment Program, that gathers
data on the ecologic system. Despite the theoretical efficiency of MRC activities, it
does not cover the upper basin, namely China—a major player in the region—and
Myanmar. Particularly, China is a major actor in the region and it has plans for
hydropower and water supplies in the Mekong River basin. Also, the lack of
commitment of the co-riparian can compromise the main activities of MRC
(PHILLIPS et al., 2006).
4. BLOC POSITIONS
The European Union (EU) has some of the most advanced legislations regarding
the rational use of multinational sources of fresh water. It has a specific action plan
for Central Asia, recognizing the fact that fresh water is closely linked with
international security, since it is a potential source of conflict (EC, 2007).
Furthermore, in 1992 the Helsinki Convention on the Protection and Use of
Transboundary Watercourses and International Lakes was signed. It was sponsored
by the United Nations Economic Commission for Europe and it copes with regional
freshwater issues, mainly aiming to prevent and control pollution of multinational
sources of fresh water by developing international cooperation (UN, 1992). The EU is
a signatory of this convention, along with Austria, Bosnia and Herzegovina, Bulgaria,
Croatia, Czech Republic, Hungary, Italy, the Netherlands, Romania, Serbia, the
United Kingdom and Ukraine.
France, also a signatory of the Helsinki Convention, made water and sanitation
an international priority, as evidenced in the 2003 G8 Summit in Evian, which holds
that France’s foreign aid to this sector would be doubled. Moreover, France has
13
supported the adoption by the UN General Assembly in July 2010 of a resolution
recognizing the right to water as a human right. Still, in order to face the “growing
water deficit and pollution in the Mediterranean and the growing importance of
water in regional security in Central Asia”, France’s actions are being expanded,
“either through technical or financial development cooperation or through
diplomatic channels” (FRANCE, 2011). The country also prioritizes and welcomes
initiatives in Sub-Saharan Africa, while also recognizing the importance of actions in
Central Asia tackling fresh water and international security (FRANCE, 2011).
Germany encourages and supports cooperation processes such as the Nile Water
Basin Initiative. The country offers scientific and technical support to draw the
objective picture of the situation. Since 2008, the Federal Foreign Office has been
using its Central Asia Water Initiative to shape cooperation in the region. The first
resolution on the right to water and sanitation (Resolution 7/22 (2008)) was adopted
by the UN Human Rights Council in 2008, as a result of a joint initiative by Germany
and Spain (GERMANY, 2011). The country has also ratified the Helsinki Convention
on the Protection and Use of Transboundary Watercourses and International Lakes
besides the UN Watercourses Convention.
Afghanistan, along with India and Pakistan, held the Afghanistan–India–Pakistan
Trialogue which emphasized the need to encourage and promote a high degree of
interaction between the civil society organizations in the three countries. This
region is expressly affected by the water issue, which has generated serious
disagreement between India and Pakistan. Concerning Indus River basin, Pakistan
and India already have an agreement: the Indus Water Treaty, signed in 1960. In
spite of it, India projects an upstream dam—which is forbidden under the treaty—in
Kashmir, further exacerbating historical territorial disputes with Pakistan. India
also shares with Bangladesh, the Ganges river basin, whose use has been contested
especially after the construction by India of the Farakka Barrage diverting the river
flow3. Moreover, both share with the People’s Republic of China the Brahmaputra
river basin, whose flow could be negatively affected, if the latter followed its plans
to build a dam on the river. However, China has assured both countries that its
projects would not have significant effects on its downstream flow. Therefore,
population growth, water availability and conflicting interests take part in the
regional geopolitics in South Asia (RENNER, 2009; SALMAN & UPRETY, 2002).
The People’s Republic of China has the water issue as a major concern. The lack
of good quality water and its energy needs are aggravated by the state’s relations
concerning its transboundary water resources. “Already the largest producer of
hydropower in the world, China plans to triple hydropower capacity by 2020”
(ECONOMY, 2011). Only in Mekong River, China has four hydropower dams, which
contribute to an unstable relation with co-riparian countries, especially with
Myanmar, Laos, Thailand, Cambodia and Vietnam. Concerning the Mekong River
Commission, currently China and Myanmar are solely its dialogue partners.
3
The issue was taken to the UN by Bangladesh in the mid-1970s, a move which was not well received by
India. In 1996 a 30-year bilateral treaty was signed between the countries, but many problems still persist,
mostly in dry seasons (SALMAN & UPRETY, 2002).
14
Similarly in Amu-Darya River basin, a major river in Central Asia, the
competition of agriculture, hydropower, urban and industrial consumers and also
the limitation of fresh water quantity and quality threaten fragile populations.
Tajikistan (upper Amu-Darya) interests in hydropower menace Uzbekistan (lower
Amu-Darya) irrigations. . The first has the Rogun hydroelectric plant project, which
makes tensions between both on the issue very recurrent (SHUSTOV, 2010).
Furthermore, Afghanistan (upper Amu-Darya) could also develop its hydropower
potential in the future, increasing water demand in the basin (RENNER, 2009). For
that purpose, Kazakhstan, Kyrgyzstan, Turkmenistan, Tajikistan and Uzbekistan
have held since 1991 the Interstate Commission for Water Coordination of Central
Asia, in order to approach water resources in the region as an integrate issue.
Moreover, Uzbekistan is the only state that has acceded to the UN Watercourses
Convention, besides having signed the Helsinki Convention on the Protection and
Use of Transboundary Watercourses and International Lakes, which Kazakhstan is
also a part of. These accords specifically affect their relations regarding the Lake
Aral basin.
The Russian Federation has intentions of building new hydropower plants
throughout its territory. The growing demand for energy and the need to develop
Siberia and Far East regions led Putin to announce “a systematic national program
to develop the region and also to encourage large-scale energy exports to Asia”
(SIMONIA, 2006, p. 72). Moreover, Antonova (2009) tells that the country plans to
double its hydropower production until 2020. Bilateral relations are held by Russia
with Central Asian countries and Ukraine.
Jordan has most of its water resources shared with other countries. The Jordan
River basin flows also through Israel, Lebanon, the Syrian Arab Republic and the
West Bank. “Failure so far to develop a unified approach to managing these water
resources has encouraged unilateral development by the various riparian countries”
(FAO, 2008a). Currently, the Joint Jordanian-Syrian Higher Committee is discussing
how to make use of the Yarmouk River basin (a sub-basin of Jordan River Basin)
water and how to protect Yarmouk River water against depletion. Yet, Syrian
authorities have made declarations acknowledging that the Jordan’s water resources
are limited (THE JORDAN TIMES, 2008 apud FAO, 2008a). Nonetheless, Jordan,
Lebanon and Syria are legally committed with the UN Watercourses Convention.
Furthermore, according to FAO (2008c) Turkey “contributes about 90 percent of
the total annual flow of the Euphrates, while the remaining part originates in Syria”.
Turkey guaranteed that it will allow 500 m3/s water flow across the border to the
Syrian Arab Republic, despite of not having any agreement about sharing Euphrates’
water. Problems regarding sharing water might arise between Turkey, the Syrian
Arab Republic and Iraq because full irrigation development by the countries in the
Euphrates–Tigris river basins would lead to water shortages (FAO, 1997; 2008d).
Nigeria is a member of two regional organisations dealing with the management
of shared water resources: the Niger Basin Authority along with—Guinea, Côte
D’Ivoire, Mali, Burkina Faso, Algeria, Benin, Niger, Chad, and Cameroon—and the
Lake Chad Basin Commission—cooperating with Cameroon, the Central African
Republic, Chad and Niger—, which is the oldest African intergovernmental
15
organization to deal specifically with multinational sources of fresh water (WIRKUS
& BÖGE, 2005). The first works together with non-governmental organisations, such
as the World Wildlife Foundation, and its principal aim is “(…) to ensure an
integrated development of the Niger Basin in all fields (…)” (UN, 1980, article 3, §1).
On the other hand, the latter seeks “obliges the parties to the common use of the
natural resources of the river basin.” and “projects from individual states have to be
presented to the other parties on beforehand and may not have negative effects on
them” (WIRKUS & BÖGE, 2005, p. 41, our translation4). Since the whole region’s
economy is based on agriculture, the main aspect considered on international water
security is to sustainably handle irrigation and dams projects (FAO, 2008b). As a
comprehensive instrument to develop cooperation, Nigeria and Burkina Faso
acceded to UN Watercourses Convention, yet has Côte D’Ivoire only signed it.
The Nile Basin States (Rwanda, Burundi, Democratic Republic of the Congo,
Tanzania, Kenya, Uganda, Ethiopia, Eritrea, Sudan, South Sudan and Egypt) have
taken initiatives towards achieving sustainable socio-economic development
through an equitable utilization of Nile River Basin water resources. The region
faces serious water scarcity, the Nile being the great source of water for human
consumption, agriculture and energy. However, since 1929:
Egypt has held a near-monopoly on the water, but in 2010 Burundi,
Ethiopia, Kenya, Rwanda, Tanzania and Uganda signed the Entebbe
Treaty—that neither Egypt nor Sudan recognize—in order to arrest
that monopoly. (…) Under the terms of the treaty, Nile basin countries
will no longer have to ask Egypt’s permission to undertake water
diversion projects on the river (LAYLIN, 2011).
South Africa, Angola, Botswana, Mozambique, Zambia, Malawi and Namibia have
signed and ratified the SADC Shared Water Course System Protocol and the Revised
Protocol on Shared Water Courses that describe how the signatory parties shall
utilize and develop internationally shared water resources. Beyond that, the Revised
Protocol aims “to foster closer cooperation for judicious, sustainable and coordinated management, protection and utilisation of shared watercourses and
advance the SADC agenda of regional integration and poverty alleviation” (SADC,
2000, article 2). Namibia and South Africa have also signed and ratified the UN
Watercourses Convention. Intergovernmental discussions and studies are underway
on the sharing of the Orange River between them as well. South Africa,
Mozambique, Botswana and Zimbabwe are also trying to coordinate the sharing of
Limpopo River, even though the latter has not signed the aforementioned protocols
and the UN Watercourses Convention.
Brazil lies, along with Argentina, Paraguay and Uruguay, over the transboundary
aquifer Guarani Aquifer System. This aquifer got attention due to its extension and
stored volume of water. In 1996, an international cooperation to jointly develop it
was formalized. This agreement originated a mutual long period project with the
objective to support the four countries to implement technical, legal and
4
The original reads as follows: “verpflichten sich die Mitglieder zur gemeinsamen Nutzung der
natürlichen Ressourcen des Seebeckens. Projekte einzelner Staaten müssen den anderen Mitgliedern
vorab angezeigt werden und dürfen für diese keine negativen Auswirkungen haben”.
16
institutional frameworks for management and preservation of the SAG. Brazil—
together with Colombia, Bolivia, Ecuador, Peru, Suriname, Venezuela and Guyana—
is also a part of the Amazon Cooperation Treaty Organization, which aims to
promote a harmonic and integrated development with rational exploration of the
Amazon River basin. Venezuela and Paraguay have signed UN Watercourses
Convention.
As for Costa Rica, it has many problems regarding transboundary water
management, especially with Nicaragua. This happens because the latter is
currently dredging rivers which will probably affect Costa Rican fresh water sources
and wetlands.
The United States of America helps to address water conflicts in Middle East. The
state finances UNESCO and WHO programs in water and sanitation, contributing
with technologies sharing (US, 2011a). Moreover, the US are growing its presence in
South and Southern Asia water concerns (CHINA, 2010). Although helping to avoid
water conflicts, in its border the country has a historical problem with Mexico about
groundwater underneath the border, used for irrigation in both countries (UNDP,
2006).
5. QUESTIONS TO PONDER
i.
How can the availability of fresh water from multinational sources be
internationally guaranteed for co-riparian countries regardless of their
position relatively to the source?
ii.
What changes should be made to the UN Watercourse Convention to build a
new and more successful international instrument for the management of
transboundary waters?
iii.
Since high population density and growth cause great competition for the
use of fresh water resources, what measures should be taken to contain
multiple interests and demands, while reconciling to avoid conflicts?
iv.
What regional arrangements should serve as an example of equitable and
reasonable utilization of multinational sources of fresh water with no harm
caused to co-riparian countries?
v.
How to deal with ecological marginalization with respect to water
availability?
vi.
How to avoid that governments and governance is impaired in states with
severe water shortages?
17
TOPIC B: Political, securitarian and infrastructural state-building
Athos Munhoz Moreira da Silva, Julien Marcel Demeulemeester, Luíza Gimenez
Cerioli, Bruno Gomes Guimarães and Luíza Leão Soares Pereira
1.1. THE EMERGENCE OF THE FIRST STATES
It may be considered that the first states appeared in ancient Mesopotamia as an
evolution of tribal and kinship structures and based on tribal alliances (JAKOBSON &
DANDAMAEV apud DANI & MOHEN, 1996). The societies of those “city-states” had
product surplus enough to maintain a structure of people not directly engaged in
productive labor, as administrators, warriors, priests and the intelligentsia1, needed
to perform essential functions to the organization of those societies (JAKOBSON &
DANDAMAEV apud DANI & MOHEN, 1996).
The evolution of human political organization from families to bands, tribes, and
then states has come as an answer to an increase, not just in size, but also in
complexity of societies. This demanded specialization in the functions performed in
order to reproduce social life, that is, a differentiation, which is usually called in
social sciences modernization (MOUZELIS, 1996).
1.2. THE EMERGENCE OF THE MODERN STATE
Although the state can be considered a product of ancient times, it may be more
useful, in order to investigate contemporary state-building, to address the process of
“Modern States” making. This process started to occur, in Europe, by the 14 th
century (STRAYER, 1970; TILLY, 1990).
The transition from feudalism to capitalism played an essential role, in the way
working relations were changing: Serfdom gave place in great part to employment.
This not just resulted in capitalistic rural activity, but was also important in the
growing and multiplication of cities at that time, which were decisive for capital
accumulation and concentration mainly through manufacturing and trade of goods
(TIMBERLAKE, 1985; TILLY, 1990).
This new structure was mainly characterized by an increasing in the
centralization of state authority, if compared to the previous period, and the
presence of a professional bureaucracy, in order to aid the sovereign. In order to
enforce central authority, the use of force was needed, fostering, as a consequence,
the organization of national armed forces—substituting the traditional use of
private armies—as well as police forces. The role of territory must not be
disregarded as well. The new states were national, what means that they controlled
multiple contiguous regions (TILLY, 1990).
Tilly (apud EVANS, RUESCHEMEYER & SKOCPOL, 1985) considers four fundamental
functions of the state: war-making, or the fight against its external rivals to the
territory it controls; state-making, or fighting its internal rivals; protection, or
1
In this case, intelligentsia means the portion of society dedicated to science and thought.
18
fighting the enemies of their clients (in this case, the population, specially the
bourgeoisie, if a Marxist view is adopted); and extraction, or obtainment of the
means to perform the other three activities, mainly through taxation. In this sense,
the relation among use of force, the formation of a bureaucracy and capital
accumulation is highlighted. Also, the relation among the emergence of “Modern
States”, the expansion of territories and of capitalist activities cannot be ignored
(ARRIGHI, 1994).
War making, extraction, and capital accumulation interacted to shape
European state making. Power holders did not undertake those three
momentous activities with the intention of creating national states
centralized, differentiated, autonomous, extensive political
organizations. Nor did they ordinarily foresee that national states
would emerge from war making, extraction, and capital accumulation.
Instead, the people who controlled European states and states in the
making warred in order to check or overcome their competitors and
thus to enjoy the advantages of power within a secure or expanding
territory (TILLY apud EVANS, RUESCHEMEYER & SKOCPOL, 1985,
p.172).
1.3. THE “MODERN STATE” IN INTERNATIONAL RELATIONS
1.3.1. THE WESTPHALIA SYSTEM AND THE CONCEPT OF SOVEREIGNTY
The process of state-making in Europe, as already affirmed, was linked to the
fight against external rivals, either to expand or to secure their territories which
resulted in many wars. The most important of them came to be the Thirty Years
War, which involved states, kingdoms, principalities and ducats from the whole
continent, mainly Spain, the Netherlands, France and the Holy Roman Empire.
At the end of this war a series of treaties was signed, which became known as the
Peace of Westphalia. This fact is widely accepted as the first attempt to establish a
basic framework for international relations, and it also recognized the
independence of the Swiss Confederation and of the United Provinces (the
Netherlands). Although recently some scholars have been criticizing what they call
a standard view of International Relations, Philpott offers us an interesting point of
view:
In the wake of Westphalia states became the chief form of polity in
Europe and faced no serious rival in the Holy Roman Empire — this is
the heart of the claim about historical change. The United Provinces
and the Swiss Confederation gained effective independence. The
German states regained their “ancient rights” against the empire and
acquired the right to form alliances outside the empire. The
communications between diplomats at Westphalia are laced with
references to state autonomy, the equality of states, an equilibrium of
states, and even an early version of collective security — all notions
that are unintelligible apart from a sovereign states system
(PHILPOTT, 2001, pp. 211–212).
If on one hand there has been the recognition of sovereignty of states by other
states, on the other, the Peace of Westphalia brought the principle of distinction
between civilian and military, and also the freedom of religious practice.
19
1.3.2. THE CONGRESS OF VIENNA
The Congress of Vienna ended the Napoleonic Wars, in the years of 1815 and
1816, and it was another attempt to regulate relations between states. Its main
objective was to create a balance of power among European powers, impeding any
of them to establish a domain over the others (KISSINGER, 1994). Without any doubt,
it was successful in reducing the number of wars among powers in the 19 th century,
according to Kissinger (1994).
Even though this system still considered the principle of sovereignty, the main
powers still intervened in other states. They did that either in order to maintain the
balance of power—as in the Crimean War, when Russia attempted to annex part of
the Ottoman Empire, and France, England and Austria reacted against it—or to
maintain internal stability in some of its “members”—as when European powers
intervened in the Ottoman Empire to avoid the establishment of an autonomous
empire in Egypt (KISSINGER, 1994). Hence, it can be said that back then the
sovereignty principle was to some extent more flexible in reality than it had been
originally intended to.
1.4. INTERNATIONAL INSTITUTIONS AND STATE-BUILDING
1.4.1. THE LEAGUE OF NATIONS
After the failure of the Concert of Europe, beginning with the Crimean War and
culminating in the First World War (WWI), the world underwent significant
changes. As consequences of WWI, it is noticeable the impairment of European
powers and the emergence of a new economic and political power: the United States
of America. This contributed to highlight the presence of its president, Woodrow
Wilson, at the Peace Conference of Versailles, his Fourteen Points 2, and his intention
to create an international institution to mediate conflicts between states and avoid
wars.
The League of Nations was thus created in 1919, reflecting in great part the ideas
of Wilson—despite the later absence of his country in the League. This new
institution, in contrast to the Concert of Europe, was not restricted to European
powers, since many new states emerged after having gained independence
throughout the 19th century.
The idea of self-determination, fostered by Wilson, hindered the acceptance of
colonialism. As a consequence, the colonial territories of Germany in Africa and in
the Pacific Ocean and territories of the former Ottoman Empire (then Turkey) in the
Middle East were not annexed by other powers. They were rather kept under the
authority of the League and administered by other powers under the Mandates
System with supervision of the organization until those territories could claim
independence (POTTER, 1922; SAYRE, 1948). States with a League mandate to
administer territories had the responsibility to demilitarize them and keep an “open
door policy”—equality of economic and trade opportunities for all League members
in those territories (POTTER, 1922; SAYRE, 1948).
2
The Fourteen Points of Wilson was a speech made by the president to a joint session of the American
Congress in which he stated the aims of the United States by fighting WWI and the intended outcomes of
the conflict.
20
1.4.2. THE UNITED NATIONS AND THE POST-SECOND WORLD WAR
The occurrence of the Second World War showed the world that the League of
Nations was not able to fulfill its main objective. Accordingly, in an attempt to tackle
this problem, the United Nations (UN) was founded—a more complex organization
than the League. The emergence of economic and political institutions, attached to
the UN, indicated the rise of a new world order.
The appearance of the United States and of the Soviet Union as the main powers
of this new system marked the decline of colonial powers and fostered the processes
of independence in Africa and Asia. These processes of independence added more
newborn states to the organization, enlarging substantially the international
system.
However, the League of Nations left a legacy to the UN, since the Mandates
System was replaced by the Trusteeship System. The non-self-governing or trust
territories under this system were: “a. territories now held under mandate3; b.
territories which may be detached from enemy states as a result of the Second
World War; and; c. territories voluntarily placed under the system by states
responsible for their administration.” (UN, 1945, Art. 77).
1.4.2.1. PEACE ENFORCEMENT, PEACEKEEPING AND THE UNITED NATIONS
In order to maintain peace and security, the United Nations also intervenes in
internal or international conflicts, under the chapters VI, VII of its charter. The
articles of Chapter VI deal with pacific and non-coercive measures to settle potential
conflicts, mainly through mediation. Chapter VII, on the other hand, addresses
situation in that there is threat to peace and security and acts of aggression,
provisioning coercive measures, such as economic and military sanctions and the
use of force. Operations under this chapter are also called of “Peace Enforcement” or
“Peacebuilding” (UNITED NATIONS, 2008). Peacekeeping Operations (PKO) have
acted under Chapter VI, using force only for purposes of self-defense, although its
articles do not explicitly refer to PKO, which led scholars to coin the term “Chapter
VI 1/2”, considering its closeness with provisions of Chapter VII (WEILER apud
MOORE JR. & PUBANTZ, 2008).
During the Cold War, the majority of measures in relation to settlement of
disputes were taken under Chapter VI, since it was hard to achieve a consensus over
measures under Chapter VII (DE WET, 2004). Since 1990, hence, the invocation of
Chapter VII has been increased (LIPSON, 2007), as in the intervention against Iraqi
attacking of Kuwait and, subsequently, in former Yugoslavia, and other missions UN
have recommended engagement (DE WET, 2004).
In recent years, there has been a great worrying with weak, failing or failed
states. The incapacity to maintain order, as well as to properly provide public goods
such as health and education, in consonance with the concept of human security,
became one of the main threats to international security. This change in the
perception about security was accompanied by a change in the procedure to deal
with post-conflict societies.
3
Under the mandate of the League of Nations.
21
If UN operations were designed with limited functions as to maintain ceasefires
previously, now guidelines for operations include peace consolidation as a means of
conflict prevention (UN, 2008). Capacity building, construction of infrastructure,
economic governance, improvement of law enforcement and of political stability are
among the new goals of UN missions (UN, 2008).
The consequences of state frailty in the outbreak of local and international
instability have put a spotlight on the importance of state-building in mitigating
conflict, establishing peace, and moving towards a society that provides citizens
with stability, security, efficient services, and legitimate institutions. The
complexity of governance reform and institutional reconstruction in fragile states
has been challenging international actors involved in this process, as the foreign
donor and international development organizations. However, even though the
knowledge experience base for state-building is growing, gaps in the understanding
and in the practical application of it still remain. Furthermore, uncertainties still
linger over the legitimacy and over the real objectives of the state-building practices
being pursued (CHANDLER, 2005).
It has become commonplace to observe that we live in a globalized world. Issues,
problems, and people that once seemed distant now appear on our doorstep. Global
and local dynamics interconnect, creating a world characterized by the so-called
“distant proximities”. Globalizing forces penetrate down to the local level
throughout a variety of pathways, while local forces scatter up to the global level.
Localized political instability can engender social tensions, ethnic conflict, and
disorder in fragile states. These local pressures may lead to collapse, creating
negative spillovers not only for the direct neighbors of the state in question, but
affecting nations and people who are geographically removed from the troubled
localities (BRINKERHOFF, 2007).
Therefore, in a world of “distant proximities”, fragile or unstable states are no
longer solely a matter of domestic interest, as the global network also deems them
to bring negative spillovers to third parties which may be far away from the origin
of the instabilities. Insofar, state-building has become a priority in international
politics to achieve peace and stability. However, critics of the state-building model
claim it to have characteristics of imperialism and colonialism, whereby local
leaderships view the foreign donor as an oppressor attempting to impose a foreign
system and culture (FRITZ & MENOCAL, 2007).
Foreign support is supposed to encourage low income or unstable states to
develop, but, sometimes, the question may be polemic, especially when this
assistance consists in the state-building itself. Among the many dilemmas involving
it are the matter of trusting local leaders in unstable countries or not, while some
raise questions about national well-being and self-determination. And, in the
internal scope, a growing tension can be seen between aid donors, who generally
want political liberalizations, and aid recipients, who may want to keep control over
political processes (CHANDLER, 2005).
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2.1. DEFINITION OF THE STATE
Scholars have been trying to find an ultimate definition about what is a state.
Among the most famous attempts are those coined by Max Weber and Charles Tilly.
For Weber “a state is that human community that (successfully) lays claim to the
monopoly of the legitimate use of physical violence within a certain territory”
(WEBER, 1994). Tilly, by his turn, affirms that:
an organization which controls the population occupying a defined
territory is a state in so far as (1) it is differentiated from other
organizations operating in the same territory; (2) it is autonomous; (3)
it is centralized; and (4) its divisions are formally coordinated with one
another (TILLY, 1975, p. 70).
Thus, it is noticeable that both definitions stress structural and organizational
aspects of the state and focus to a large extent on the importance of some kind of
centralized form of authority.
However, the state is characterized not only by its internal dimensions but also
by an important external dimension. Since the peace of Westphalia (1648), the state
has been the central organizational structure in international relations and the
concept of sovereignty has underpinned relations among states, as seen in the
historical background. The principles of sovereignty, legal equality and noninterventionism were further explored in the United Nations System as it originally
emerged after the Second World War. Since then, a state has been considered
sovereign and autonomous at the international level once the UN recognizes it as
such, regardless of whether or not it meets any of the criteria laid out by Weber or
Tilly. However, this constitutes a problem when it comes to the contradiction
between the domestic and the external constitutions of statehood, such as on the
case of those states that possess international judicial statehood, but only very
limited internal state capacity.
Lastly, in International Law, the most widely accepted definition of a state is the
one presented in the Montevideo Convention on the Rights and Duties of States,
which codified some customary aspects of statehood, comprising both internal and
external dimensions: “The state […] should possess the following qualifications: (a) a
permanent population; (b) a defined territory; (c) government; and (d) capacity to
enter into relations with the other states.” (IC, 1933, Art. 1). Besides that, in the
external dimension: “States are juridically equal, enjoy the same rights, and have
equal capacity in their exercise. The rights of each one do not depend upon the
power which it possesses to assure its exercise, but upon the simple fact of its
existence […].” (IC, 1933, Art. 4).
2.2. STATE FUNCTIONS AND STATE-BUILDING
In stable contemporary states, people expect certain benefits from the state to be
provided in an inclusive basis, with security, justice, enabling conditions for the
pursuit of economic livelihoods, as well as public services such as education and
health care. In return, they have obligations to the State to pay taxes, to accept the
State’s monopoly on coercive force and to accept other restrictions to their freedom
according to the law. It is the specific context and history of a given society and the
23
experience of its people with their States, however, that will shape the levels and
nature of expectations towards them, and the way social and political groups engage
with them. Moreover, beyond people’s expectations, the international community
also has certain expectations of how states should perform.
Although there is no general agreement upon what are exactly the state
functions and their hierarchy, there is some consensus on the agenda of the
minimum standards a state should provide to its society and how the reconstruction
of failed states should happen upon state-building. Security—including law and
order—is first priority. Afterwards, albeit in no particular order and often
simultaneously, come reconstruction of legitimate political authority and economic
development, including restoration of basic services (FUKUYAMA, 2004).
The UN and the international aid community have developed a set of widely
accepted priorities and practices that states should perform. The role of the state
may vary from facilitation to direct implementation, according to the context of a
given situation. Accordingly, there are six categories of functions states should
exercise while stabilizing its internal situation. They are: (1) security, (2) public
administration and governance, (3) justice (rule of law), (4) economic recovery and
reform, (5) political representation and accountability, and (6) post-conflict
integration (CMI, 2007).
Establishing the political settlement and re-establishing security are clearly
high-priority activities in fragile and post-conflict societies which are coping with
the lack of security. Without security, the other governance functions cannot be
fulfilled. Re-establishing security may require peacekeeping operations, often
coupled with humanitarian and emergency relief, since many post-war countries
have large numbers of internally displaced persons, wrecked infrastructure, and
disrupted economic activity.
Thus, security is a necessary precursor to stabilization and progress toward a
return to something approaching normal economic and political activity.
Furthermore, the political settlement—including the restoration of a functioning
and legitimate government and of constitutional rules—also lies at the core of any
state-building project. According to Fritz and Menocal (2007), the state structure can
be divided in three layers. The core, which is composed by the political settlement
and surrounded by public administration, security through the establishment of a
legitimate monopoly of violence, and the rule of law, considered the three main
functions of the state. Once this basic foundation is laid out, other more outputoriented functions can be built upon it (FRITZ & MENOCAL, 2007). The second layer
comprises key public goods or outputs such as justice, management of the economy,
and public services such as health and education. This layer is closely linked with
the society. Finally, the last layer concerns contextual factors. Among those, are
state and political regime legacies, resource endowments, climatic and geographic
factors, as well as geopolitics.
On the other hand, it is essential to keep in mind that all domains are closely
interlinked and that their relationship is dynamic and crosscutting. Some processes
across the various domains are likely to be positively reinforcing (e.g. progress with
security and successful economic management), and some may be crucially
24
dependent on the existence of others if they are to prove meaningful or effective.
Some areas within particular domains may constitute core functions and may
themselves yield further outcomes. For example, security as a set of institutions is a
core function of state-building, and it is also an output as a public good enjoyed by
those who feel more secure (FUKUYAMA, 2004).
Security seems to have attracted the greatest attention from external actors, if
compared with political settlement, which relevance has only increased
substantially recently. The added criterion of democratization is also quite
controversial. While democratic institutions are associated with stability and state
legitimacy in the long run, the processes of democratization have historically been
associated with instability. Early elections can be instrumental in establishing a
legitimate postwar government, but can also have negative effects (FRITZ &
MENOCAL, 2007). Notwithstanding, some argue that the state cannot maintain a
legitimate monopoly of force in the absence of a democratic framework. If so,
establishing democratic structures would be a requirement of state building.
2.3. STATE-BUILDING CONCEPTUALIZATION AND DISTINCTIONS
State-building has become a major issue of concern in the international
community, but it lacks conceptual clarity. There is a broad understanding that
state-building, in its simplest formulation, refers to the set of actions undertaken by
national and international actors to create a framework of stability and to institute,
restructure and reinforce state institutions where these have been critically eroded
or are missing Therefore, key goals of state-building usually include the provision of
security, the establishment of the rule of law, the effective delivery of basic goods
and services to the society, and generations of political legitimacy for the new set of
state institutions being built (SCHNECKENER, 2007).
State-building should not be seen as a program nor as a project; it is not only a
part of a post-conflict phase, nor is it limited to peace-building or institutionbuilding. State-building is rooted in the history of states and is an ongoing process
of development and institutionalization relevant to all states. It is worked out over
the long term, although attention is often focused on its short-term characteristics
(FRITZ & MENOCAL, 2007). State-building is often a difficult and non-linear process
in which periods of achievement may be followed by periods of set-back. Moreover,
it is a process that should take place in all levels of the state-society relations.
The concept of state-building has been used by the international donor
community to describe a desired (positive) process of state-building. It is important
to acknowledge, however, that in reality state-building may not be always a positive
experience for populations. History of state formation and processes of statebuilding have included episodes of states seeking to boost their institutional
capacity for the purpose of political, economic and social exclusion, often
experiencing lingering situations where the population suffered with insecurity and
conflict (OECD-DAC, 2008).
However, state-building, nation-building, governance and democratization
should be understood as processes that may overlap in many aspects. Nevertheless,
it is important to bear in mind that they are distinct. While it may not always be
25
possible to attain an international consensus on terms, the objective should be to
promote a better understanding and usage of the conceptual options and of their
distinctions. Therefore, we shall hereinafter to clarify and distinguish these terms.
2.3.1. STATE-BUILDING AND NATION-BUILDING
Nation-building is the process of building a sense of common national identity,
whether defined in an ethnic, cultural or political sense. Nation building can be an
important part of the process of state-building and both can mutually reinforce each
other. The state has historically played an instrumental role in nation-building,
usually in order to create nation-states, or nations that coincide with state
boundaries, both in early developed countries and in today’s developing world.
Fostering at least a loose sense of a common national public space seems to be an
essential component of creating effective states and an effective state-society
relationship (WIMMER & SCHILLER, 2002).
2.3.2. STATE-BUILDING AND INSTITUTION-BUILDING
State-building should not be restricted to a technical process of creating
government institutions or strengthening existing ones—these activities are
described more precisely as institution-building. Functioning institutions not only
depend on formal design, but on the social and political context within which these
institutions operate, and this is where state-building comes into play.
An important distinction that has to be made is that between formal and
informal institutions. Formal institutions need to be rooted in society and to be
supported with legitimacy, otherwise they risk becoming mere shells and being
captured by private patrimonial interests. In weak and fragile states, informal
institutions are often very active and important. The challenge is generally about
how to establish and strengthen more formal institutions—and to develop a
supportive rather than corrosive relationship between formal and informal
institutions (FRITZ & MENOCAL, 2007).
2.3.3 STATE-BUILDING AND PEACE-BUILDING
Peace-building is mainly understood as the activities taken by international or
national actors to prevent conflicts and to institutionalize peace. It is often an
important part of the state-building dynamic, as it helps to consolidate security and
political stability and to establish the foundations for trust and social reconciliation
among societal groups (WIMMER & SCHILLER, 2002).
All the same, it is important not to confuse the immediate challenges of peacebuilding with the long-term challenges of state-building, which should evolve over
generations. Therefore, peace-building should offer the background to overcome
the challenges to pursue a successful state-building procedure, whose outcomes
should help to build an effective and legitimate state.
2.3.4 STATE-BUILDING AND GOVERNANCE
State-building and governance are closely related terms and they both share a
concern about similar issues, especially on how to make institutions work better.
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However, state-building is usually an antecedent task. State-building is about
constructing the foundations of the very government framework within which
governance ought to operate; without prior constitution of this framework,
governance initiatives are likely to have only limited impact. In its broadest sense,
governance is concerned with the way power is exercised and the sets of rules that
govern behavior in different arenas to pursue collective goals and interests. Systems
of governance operate at many different levels, from the international (including
multilateral organizations or supranational ones) to the locals. Thus, the state
represents only one, albeit extremely important, form of the territorial organization
of governance (FRITZ & MENOCAL, 2007).
2.4. SOVEREIGNTY AND THE RESPONSIBILITY TO PROTECT
There is no international consensus upon whom, when, how and to what extent
external actors may intervene in the internal affairs of a fragile country in order to
pursue state-building activities. Still, after the UN Security Council started to
intervene in civil conflicts in the 1990s, recognizing them as threats to international
security and peace, two major failures occurred, namely Rwanda and Kosovo, which
prompted a shift of the view on the matter of interventions (WELSH, 2008; BRAGA,
2009). As a consequence, the principle of the Responsibility to Protect (R2P)
emerged; it was acknowledged in the 2005 World Summit of the UN General
Assembly (UNGA, 2005), and further reaffirmed by the UN Security Council in two
operative clauses of resolution 1674 on protection of civilians in armed conflicts in
2006 (UNSC, 2006). R2P affirms that sovereignty not only brings to the State equality
among other states and the respect of its sovereign rights by others, but also incurs
the responsibility of protecting civilians in its own territory (EVANS & SAHNOUN,
2002). Therefore, sovereignty, according to this principle, comes together with
accountability in two distinct spheres, namely the international and internal one: to
the population and to the international community.
The main challenge in the coining of this principle was to tackle the issue of
genocide, mass murder, ethnic cleansing and other massive human rights violations.
Hence, R2P also states that whenever a state is unwilling or unable to protect
civilians from these calamities, the international community would have the duty of
protecting them (EVANS & SAHNOUN, 2002; BASTOS, 2009). Then the principle of
non-intervention in internal affairs would give space to the international
responsibility to protect. In addition, Penna Filho (2004) even verifies that the
“sacred principle of national sovereignty” was in effect broken, meaning that a new
paradigm emerged: the intervention in internal conflicts, when they are the cause of
widespread humanitarian and human rights violations and of systematic atrocities
against the civilian populations.
As a result, fragile states would fall into the category of states that are unable to
protect their own civilians. This would further mean that the international
community has the duty to fulfill the obligations or responsibilities of these states.
Accordingly, state-building actions coordinated by external actors (other countries,
coalitions and organizations) would be in place. Chandler (2005), however, notices
that this conception of sovereignty as a capacity (the capacity of protecting the
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civilian populations) instead of a right to self-government and international legal
equality would fashion a hierarchy of sovereignty, meaning that some states could
be considered more sovereign, e.g. more capable, than others. Thus, it would
weaken the principle of sovereign equality of the UN Charter (CHANDLER, 2005).
Accordingly, Robert Jackson (1990) introduced the concept of “quasi-states”, in
order to classify those countries with what he considers to be an artificial
sovereignty. These are fragile countries that are under the influence of other states
and do not have the capacity to regulate and control their societies and internal
affairs. Therefore, according to Jackson’s approach, these states possess de jure
sovereignty, the formal international legal rights, but lack de facto sovereignty, the
capacity to govern domestically.
Nonetheless, external interventions for the purposes of state-building could
enhance the target state’s sovereignty and independence in the long run, because it
indeed focuses on capacity building. Yet, there are fears that it could also undermine
the right of self-government through the intrusion of external powers or even the
United Nations. Beyond that, it presumably means that sovereignty (as a capacity)
can be weakened too. This would further undermine the legal aspect of it. Moreover,
the responsibilities that are incurred to a sovereign state would not consist of a
decision made solely by its population or by its representatives, but in partnership
with the international community. Through this, sovereignty is not a barrier to
external interference, but a medium through which the states are integrated in
external regulation networks (CHANDLER, 2005). These networks would, however,
be legitimate, provided that international institutions, chiefly the United Nations,
decide what these responsibilities are comprised of. This way, state-building
operations would involve states being firmly set in international institutional
frameworks. The problem remaining is that the fragile states have little influence
over their decision-making processes (CHANDLER, 2005).
2.5. ROLES OF INTERNAL AND EXTERNAL ACTORS
2.5.1. RELEVANCE OF INTERNAL ACTORS
Even though external actors have become increasingly involved in
contemporary state-building, it is essential to stress that such efforts will remain
limited in their transformative capacity unless they can build on a considerable base
of internal support and whereby key domestic actors are committed. As
Chesterman, Ignatieff and Thakur argue, “states cannot be made to work from the
outside” (CHESTERMAN, IGNATIEFF & THAKUR, 2005, p. 9).
Insofar, without significant participation by key stakeholders and strong internal
political leadership in the state-building process, state-building efforts may more
difficulty to be considered legitimate and to be sustainable over the long term
(BRINKERHOFF, 2007). In other words, donors must bear in mind the relevance of
domestic actors, so that the efforts in state-building procedures may be carried in a
legitimate and sustainable way.
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2.5.2. EXTERNAL ACTORS
Since the 1990s, there has been sustained international engagement with statebuilding efforts, especially in post-conflict and fragile settings. A wide diversity of
external actors is involved. These include bilateral and multilateral donors,
international non-governmental organizations, humanitarian organizations, and
military and diplomatic actors.
Given the relevance of internal actors emphasized above, the potential for
external state-building policies to establish well-functioning states is likely to be
more limited if suitable domestic leaders cannot be identified. However, external
influence and impact, both positive and negative, can still be quite substantial.
International actors should, therefore, focus on minimizing unintentional harm and
on facilitating domestic processes, providing resources and creating the space for
domestic actors to start engaging with difficult challenges of building strong
resilient institutions in the long term. The broad array of actors engaged in statebuilding efforts implies inter alia a scale of coordination, harmonization, and
alignment challenges that is even more substantial than in developing countries
with established states (BRINKERHOFF, 2007).
2.6. STATE-BUILDING AND SELF-DETERMINATION
Ideally, self-determination is understood to represent the right of the peoples to
freely determine their own political status and to freely pursue their economic,
social and cultural development. The attempts to develop multinational states have
been blamed for the failure of state-building processes, because one group often
monopolizes the State and may try to impose its values, views, culture and language
to the rest of the society.
In this sense, democracy may be considered to not have achieved a satisfactory
level in many African countries after state-building practices because they adopted
political institutions that did not recognize and accommodate different groups
existing in the countries. As a result, many countries witnessed violent conflicts,
coups or eventual breakdown of their fledgling democracies (FRITZ & MENOCAL,
2007). On the other hand, some scholars have criticized the effects of power-sharing
agreements as, instead of contributing to political settlement, in practice, they
foster the use of force by non-state actors in order to increase their political power
(TULL & MEHLER, 2005; LEMARCHAND, 2007)
2.7. STATE-BUILDING AND LEGITIMACY
Legitimacy aids the process of state-building, and is reinforced as state-building
delivers benefits for people. The state’s ability to manage state-society expectations
and state-building processes is influenced by the degree of legitimacy it has in the
eyes of its population. As such, legitimacy is both a means and an end for successful
state-building. However, legitimacy has various domestic and international forms
and sources that vary according to context and may not necessarily coincide with a
particular model of democratic legitimacy or other kind of public administration
(OECD, 2008).
29
On the other hand, legitimacy is a very complex concept which includes many
different dimensions and it can, therefore, be very difficult to measure empirically.
States have relied on a combination of one or more methods to establish their
legitimacy and authority over those they rule. Some of the most common ways of
establishing and sustaining legitimacy over time include one or more of the
following: provision of public goods and services, economic performance, ideology
or nationalism, populism, liberal democratic representation.
However, legitimacy based on democratic processes and accountability can be
extremely difficult to achieve, especially in early phases of state-building where
democratic political as well as state institutions may be weak and/or
malfunctioning. At times, a population may come to prefer order and performance
over the perceived disorder that can accompany processes of state-building with
simultaneous democratization (FRITZ & MENOCAL, 2007). Therefore, according to
this point of view, creating accountability, combating corruption, delivering
services, demonstrating the government willingness and capacity to respond to
citizens’ needs and demands may prove useful in order to reconstitute legitimacy.
2.8. VIABILITY OF THE MODEL BEING PURSUED
Perhaps the most overarching test that the international community confronts
in contemporary state-building efforts relates to the viability of the model being
pursued by the countries while delivering aid. According to Fritz and Menocal
(2007), the overall development model adopted over the past two decades, especially
in post-conflict and other fragile settings, relies on the simultaneous pursuit of
three main objectives:
 Political liberalization and the promotion of democracy: elections; promotion
of basic fundamental rights; an inclusive and participatory constitutionmaking process; and initiatives to strengthen civil society organizations and
the media as watchdogs and potential counterweights to the government.
 Economic liberalization towards a market-based economy: structural
adjustment and the concomitant reduction of the State; promotion of
macroeconomic stability; opening-up to trade and foreign investment; and
privatization.
 State capacity-building, which includes creating and strengthening more
effective, accountable and responsive institutions.
The challenge lies, however, in how to get there. Until very recently, the
international community seems to have relied on over-optimistic assumptions
about the inherently beneficial effects of moving toward democratization and
market-oriented reforms while building state capacity and strong government
institutions at the same time. But, the promotion of these processes simultaneously
is not a trajectory that has historically been followed.
Historical cases of states that have been democratic since the moment they were
founded are exceptional. State-building efforts have historically been top-down,
heavily driven and controlled by national elites. Civil society has at best played a
very weak or limited role (LEFTWICH, 1995). Democratization, when it has
30
happened, has taken place only afterwards. Above all, it is essential to understand
that dynamics in the three arenas may not always be mutually complementary and
that that the model may hold significant tensions and set unrealistic expectations
that can prove to be overwhelming, especially in fragile contexts.
This historical sequencing is not entirely coincidental, given that
democratization and state-building often push in opposite directions. State-building
calls for considerable concentration of power, authority, autonomy and competence
in state political and bureaucratic institutions. Democratization, on the other hand,
has an inherent tendency to disperse power and slow down decision-making
processes through the creation of multiple veto players and checks and balances. In
short, while state-building focuses on creating more effective and capable states,
democratic structures are intended to keep the state under check (FRITZ &
MENOCAL, 2007).
Moreover, there is also a problem with the simultaneous pursuit of
democratization and market-oriented reforms. In the developing world,
democratization and market liberalization have often been undertaken in parallel.
This was especially true during the 1990s: With the collapse of the Berlin Wall a
large number of countries characterized by authoritarian regimes and closed
economic systems underwent a transformation towards greater democracy and
economic openness (BRINKERHOFF, 2007). However, the mix of these two processes
has not always been mutually reinforcing, and has often resulted in some kind of
democratic deficit.
In addition, the clear international steer in favor of market-friendly economic
reforms, such as the simultaneous pursuit of state-building and market-oriented
reforms, also tends to limit the range of economic and social policies state leaders
may be able to pursue and therefore reduces the space available for democratic
decision-making. International financial institutions, especially the International
Monetary Fund, are committed to promoting macroeconomic stability and openmarket economies, including in fragile and post-conflict states. They advocate
inflation and deficit reduction; international economic integration; improved tax
collection systems and budgetary management; market liberalization; and
privatization (PARIS, 2006).
2.9. CHALLENGES TO STATE-BUILDING PROCESSES
The establishment and strengthening of government institutions still remains an
enormous challenge, both conceptually and in practice—not only in fragile but also
in more stable developing settings as well. In addition, there are clear limits to the
resources—financial, human and diplomatic—that donor countries are willing and
able to mobilize to engage in state-building practices (FRITZ & MENOCAL, 2007).
2.9.1. POLITICAL ECONOMY CHALLENGES
There are some political economy issues that undermine state-building efforts
more broadly. International as well as domestic actors need to consider the
challenges posed by a poorly governed state, marked by high levels of corruption,
dense patronage networks and weak checks and balances.
31
The configuration of patronage networks will also affect state-building efforts in
important ways. How to include and balance these networks constitutes a central
aspect of managing political stability in a state-building situation. However, to the
degree possible, it seems crucial to constrain the power of informal networks, in
order to ensure that the cohesion of the state is not lost as result of politicking and
power struggles among different strongmen or warlords, and to preserve the key
principles of building a modern state (FRITZ & MENOCAL, 2007).
2.9.2. KNOWLEDGE GAPS
There is a lack of systematic knowledge about “what works” in state-building.
There is also a lack of a clearly defined consensus with regards to a number of issues
in public sector reforms as well as other change and capacity-building processes
essential for successful state-building. This presents a considerable problem for the
international donor community when engaging in state-building. Insufficient
knowledge seems to pervade such efforts: There is remarkably little sharing of statebuilding experiences across countries and among donors, which means that
practices are constantly being reinvented in different individual settings and that
comparative lessons are not being learned.
Reviews of governance, for example, have shown a few gaps between
headquarter policies and actual programs on the ground. On the other hand, part of
the problem identified with knowledge gaps may stem not from a lack of knowledge
as such but rather from a lack of assimilating lessons learned into donor policies and
practice. Some key lessons have emerged over and over again but have yet to be
reflected in donor activities. For example, the problems embedded in donors’ shortterm horizons and the need to develop a more long-term approach to development
concerns in general and state-building efforts in particular is not a particularly new
insight (BRINKERHOFF, 2007).
2.9.3. EXTERNAL COORDINATION
The starting point for this analysis is to recognize that the international statebuilding machinery is, at present, a loosely structured network of national
governments and international governmental and non-governmental agencies.
Despite ongoing efforts on the coordination front, it still remains without a question
a considerable problem besetting state-building efforts in post-conflict and other
fragile states. In most international aid practices, there are many different kinds of
external actors involved—military, diplomatic, humanitarian and developmental.
Coordination problems are evident not only among these different sets of actors, but
also within them. Thus, there are too many external actors on the ground pursuing
a variety of agendas and goals that can often be at cross-purposes (PARIS, 2006).
In fact, problems of coordination exist in all inter-related levels involved in
state-building: first, at the field level, between the various international involved in
state-building missions and domestic actors within the country itself, including
government authorities; second, within the bureaucracies of the major donor
governments, whose different departments and agencies often pursued different
goals and activities within the same mission; third, within the UN system, where
32
bureaucratic procedures are complicated; and fourth, at the headquarters-level
between all the major international state-building actors as well as the major
governments supporting these actors. In substantive terms, coordination involved
bringing greater coherence to political, security, rule of law, human rights and
development activities of state-builders at all of these levels (PARIS, 2006).
3.1. THE UNITED NATIONS
Part of the experience of United Nations with state-building comes from its
action through peacekeeping operations, which initially had the goals of enforcing
or maintaining peace. It has, however, undergone changes from its previous
character, and now also works so as to prevent future conflicts, create post-conflict
recovery, reconstruct and rebuild institutions and promote an environment of
sustainable development through the aforementioned missions.
By the 1990s, the UN Security Council was increasingly willing to intervene in
internal conflicts and in complex humanitarian situations (LIPSON, 2007; WELSH,
2008). In that sense, it is observable that the UN began to provide humanitarian and
technical assistance and administrative support not only in regarding civilianrelated matters, but also mediate political and military situations. Experts describe
that the UN has to always be careful in applying pre-existent models of statebuilding, as different places in need of this policies should have their local
characteristics respected in order to attain an effective built of institutions: This is
both time-consuming and complex (INTERNATIONAL PEACE ACADEMY, 2003). The
ideology of state-building is also criticized: The model taken by the UN in statebuilding is mostly the liberal democracy, which can be somehow challenged by
those who advocate for a more local form of organizing the State according to its
particularities (INTERNATIONAL PEACE ACADEMY, 2003).
One of the appointed situations of UN action in a post-conflict situation in order
to promote state-building was post-apartheid South Africa. The literature appoints
that a new and non-racial, inclusive regime was achieved through patient process of
peace-building (BRAHIMI & LAKHDAR, 2007), what is one of the characteristics that
writers appoint to when describing what an effective process of the sort should be.
Another fundamental mission led by the UN was the peacekeeping mission in
Bosnia. The mission was named UNPROFOR, and was to stimulate peace-talks and
protect the civilian population in the region. Its hastiness towards political
independence and elections, however, was considered as one of the reasons for the
rise to power of the political group that led massive ethnic cleansing and genocide
in the region (INTERNATIONAL PEACE ACADEMY, 2003). Given the horrors
committed towards ethnic minorities in the region and the impossibility of action
by the mission given its mandate, NATO started its famous bombing campaign in
1995 in one of the only widely recognized acts of humanitarian intervention.
The conflict in the aforementioned region was also the trigger to the
establishment of a peacekeeping mission in Kosovo, a region of Serbia. The Federal
Republic of Yugoslavia and the Kosovo Liberation Army fought daily, and, in 1999, in
spite of being a NATO mission, the KFOR was created through the authorization of
33
UNSC Res 1244. Its actions are polemic, given that many consider KFOR to be one of
the supporters of the secessionist movement that led to the unilateral declaration of
independence by Kosovo. The region is nowadays assisted by the UNMIK, which is
an example of a very thorough mission, built on humanitarian assistance (now
phased out due to the discontinuance of its need), civil administration (held by the
UN), democratization and institution building (led by the OSCE), and reconstruction
and economic development (managed by the EU).
The matter of Timor-Leste and their struggle for independence from Indonesia
also led to the absolute wreckage of the region. All infrastructure, let alone
institutions, was destroyed during this late-90s conflict. The UN, given its lack of
resources, sponsored a mission known as INTERFET through UNSCRes 1264 (1999),
led by Australia. The mission was appointed as successful, as it helped reach peace
and begin an actual peace-building process within Timor-Leste. In order to
crystallize institutions, the actual UN took over administration of the region—
holding sovereign powers temporarily—, through UNTAET, that helped in making
the drafting of a constitution and the elections possible (CHESTERMAN, 2009). It was
then replaced by another peacekeeping mission, UNMISET. The UN attempted to
change its presence in the region, being more focused in support of already set
institutions, and established UNOTIL, but, as violence broke out again given the
weaknesses of local police and army in subsequent occasions, once more it had to
take a more assertive approach. UNMIT has replaced UNOTIL, and once again it had
its mandate renewed until 2012 by UNSCRes 1704.
Finally, the best current example of state-building is the MINUSTAH mission, in
Haiti. As building a strong state one of the major roles of UN, on April 2004, the
UNSC adopted resolution 1547, requesting the establishment of the UN Stabilization
Mission in Haiti (MINUSTAH), but it took until February 2005 for the mission to be
fully strengthened. It comprises several groups working together, international and
local civilian staff, UN volunteers, troops and police officers. It helped with the 2006
elections: Electoral assistance became the bulk of UNDP’s program in Haiti this
period. It has also acted in several other areas, such as human rights and security,
which show the tendency of UN policies on state-building is to be as comprehensive
as possible. MINUSTAH has made a decisive contribution, together with the Haitian
National Police, to decline criminal activities. The mission found that the
MINUSTAH violence reduction program continues to play a valuable role in
providing advice to the national commission on disarmament, dismantlement and
reinsertion, focusing on key areas of the country affected by violence. This effort
made by the UN was perhaps its most comprehensive; the one that stretched the
boundaries of peacekeeping to areas related to more than peace, but also to human
rights and democracy, but its success is still very debatable (LEININGER, 2006).
An expert chosen by the UN to make a report on state building in 2007, Lakhdar
Brahimi, appoint mainly four key activities in state-building today, which are the
drafting of a constitution, promoting electoral processes, reintegrating and
reconciling distinct conflicting groups and maintaining/upholding the rule of law.
According to his report, one of the problems of state-building and UN-led
peacekeeping missions are lack of resorts, but the main one is the problem of
34
creating parallel institutions that actually diminish the authority of the ones that
are being construed locally.
3.2. THE AFRICAN UNION
The African Union has been making increasing efforts to become a main actor in
questions of conflict resolution, crisis management, peace-keeping and statebuilding in the continent, nonetheless, it often may still lack efficiency in the matter
of state-building. That is due to the fact that it is a harder task that demands high
military, financial and coercion capacity, and, therefore many of the final decisions
of the organization go in accordance with the United Nations. Alongside all the
political challenges facing peace support initiatives in Africa there are, in most
cases, important geographical and logistical challenges given the magnitude of the
continent and the AU’s members lack infrastructure to support activities in distant
areas. In this line of thought, it is understandable why multifaceted forces,
international and regional ones, often have positive outcomes when working
together in peacekeeping and state-building missions.
3.3. NORTH ATLANTIC TREATY ORGANIZATION (NATO)
The North Atlantic Treaty Organization has taken an active part in peacekeeping
missions with state-building features since 1994 in Bosnia. Since it is a military
alliance, the organization focuses more on securitarian aspects of state-building.
NATO is providing assistance to the AU Mission in Somalia, especially in supporting
capacity-building to its long-term peacekeeping matters; from 2005 to 2007, NATO
also worked together with AU in Sudan. From 2005 to 2007, NATO, together with the
African Union, expanded actions of peacekeeping in Darfur by providing airlift,
transport and training assistance, also providing strategic tactics for the rotation of
troops.
NATO is also involved in military interventions and in its aftermath issues,
providing means for state-building and peacekeeping. Together with the
international community, NATO is working in order to build a functional and
democratic state where armed conflicts had been settled or where the governments
are considered weak or incapable of fulfilling the nation’s needs. Thus, NATO, after
the post-1990 era, focused its efforts in local and regional wars and in their
aftermath situations, known as crucial matters of internal and international security
and stability.
In the 1990s, NATO’s first major action was in the Balkans, coordinating
governments to monopolize the weapons and its storages and to control violence.
After the war, Bosnia and Herzegovina was still lacking adequate military legislation
and had serious problems with privately owned small guns and mines. Moreover,
private—and even international—security companies were taking palace over the
issue of intelligence and logistic, that should be a State’s matter. Thus, NATO worked
progressively to aid the Balkan States to solve questions of border demarcation,
minority protection and rule of law. The biggest success concerning the politics of
state-building in the Balkans for NATO seems to have been its role in the democratic
transformation of the armies of the post-Yugoslav states. NATO’s politics of
35
enlargement initiated the transformation of the region’s militaries from actors of
ethnic violence towards modern, democratic armies, which some consider to be an
ongoing and largely successful process. Moreover, Russia has been working together
with NATO, playing an important role in process of peacekeeping and state-building,
based on the concept of collective defense (WEBBER, 2008).
3.4. OTHER ORGANIZATIONS AND THE EMERGENCE OF THE IMPORTANCE OF STATE-BUILDING
The OECD, as the organization that comprises the g7+ and international partners,
has also been working on the substantial development of the matters related to
state-building by creating the International Dialogue on Peace-building and Statebuilding. Its last contribution to the matter was the 2011 Monrovia Map on Peacebuilding and State-Building, by which the G7 4, gathered with Afghanistan, Burundi,
Central African Republic, Chad, Côte d’Ivoire, the Democratic Republic of the Congo,
Haiti, Liberia, Nepal, the Solomon Islands, Sierra Leone, Southern Sudan and TimorLeste, try to reach solutions on state fragility (OECD, 2011). The OECD has also
promoted the Dili Declaration of 2010, where the organization shows its grave
concern towards the vulnerability of states as a menace to the possibility of
achievement of the Millenium Development Goals (DILI, 2010).
The World Bank (WB), as it also has as one of its concerns matters related to
development, has in that sense contributed to the issue of state-building: important
features related directly to matters of state-building are contained in its ‘Fragile and
conflict-affected situations’. The focus of the WB lies primarily within the sphere of
infrastructure construction: roads, bridges, hydropower plants and others.
Given the range of both the aforementioned organizations, their approaches are
naturally much less related to security per se and much more focused on
development and economic factors. It is unsurprising that their take on statebuilding tends to be leaned towards its last mentioned feature. Their concerns are
with the elimination of poverty and with the promotion of better standards of living
as well as other matters related to human security make their reports very
important in tackling other areas of this problem, which highlights its complexity.
3.5. THE PROBLEMS OF AFGHANISTAN AND THE WAR ON TERROR’S IMPACTS ON STATE-BUILDING
Since the US (and allies) intervention in Afghanistan, a range of national,
regional and international actors have been greatly involved in efforts to bring
possible stability to the region. The Afghanistan Compact, signed in 2006, serves as a
framework for cooperation between Afghanistan and the international community
in achieving a successful process of state-building. The deterioration of a security
environment and the lack of state authority in the country generate a need for a
clear and coordinated policy for reconstruction and development in Afghanistan.
Acting with close coordination with local government and with UN’s
representatives, the program finds progress in their development efforts in
Afghanistan, looking forward to a settlement of a strong, democratic and stable
government (ADAMS, 2009).
4
The United States of America, the United Kingdom, Japan, Germany, France, Italy and Canada.
36
According to Chesterman (2009), indeed the war on terror has been significantly
challenging of the state-building prior to 2001. The author states that there is a
justification in intervention by the replacement of institutions through the
somewhat forced implementation of preexistent models by the most powerful
actors (the United States, more specifically). They would judge the pre-existing
framework of the countries at stake as insufficient or unfit, which would authorize
their forcible actions. One could say that, in a way, this shows how the view on statebuilding can become blurred with political impositions.
4. BLOC POSITIONS
Recently most of the European Union’s state-building practices encompass
strategies through the so called “co-production” of sovereignty for effectively
achieving reconstruction, development and stabilization on target countries.
According to this ideology, there should be partnerships between aiding countries
and the target countries’ domestic governance, thus engaging their domestic policymaking. They defend such an approach has both pedagogical and political benefits
to the target states. International institutions could play a key role in the process
(CHANDLER, 2005). The organization has also been a major actor in the international
state-building of Bosnia and Herzegovina.
Being subject of international state-building since the mid-1990s, Bosnia and
Herzegovina stresses the importance of such processes being conducted by
international and regional organizations, each complementing the framework of the
other. For the country, implementation of securitarian and political measures is
fundamental in state-building strategies, mainly through the establishment of
democracy and capacity-building of local police forces. Croatia also shares this
stance.
Presently, Germany and Japan are two of the most engaged countries in
international state-building activities, since both successfully experienced such
practices in the aftermath of the Second World War. Having learnt from their
experiences, both countries have long-term commitments towards state-building,
especially through the United Nations and other regional organizations. Germany is
an active actor in Bosnia and Herzegovina, Kosovo, Afghanistan and Lebanon, where
it focuses on stabilization and civil society while strengthening the states
(SCHNECKENER, 2007). In 2011, it also started engaging state-building activities in
South Sudan. Some of the German guidelines for state-building lie in financial
issues—with the assistance of international finance institutions, such as the World
Bank and the International Monetary Fund—and the prevention of violence
(GERMANY, 2010). On the other hand, Japan is committed to the state-building in
Cambodia and Afghanistan, where it focuses on the civil society and the rule of law.
The country also reaffirms the importance of the international community in
legitimizing international state-building practices.
The United Kingdom claims the concept that state-building should be addressed
through international partnerships, in order to enhance governance capacities and
increasingly replace third party external pressures. Therefore, the core solution
would lie on the shared responsibilities of national-states and international
37
institutions (CHANDLER, 2005). Similarly, France recognizes that international aid
towards state-building does not appropriately reach the recipients, because of the
fragility of target states. Therefore, the country holds that an integrated and
participatory strategy with the international community must be taken by host
states. France also particularly stresses the importance of reforming security and
justice systems in state-building.
As for Australia, it is a vehement advocate of the principle of responsibility to
protect. Likewise, it also has a major focus on human rights and political measures
within state-building frameworks. Australia currently leads such operations—
bilaterally, regionally and through the United Nations—in Timor-Leste and the
Solomon Islands, besides assisting in Iraq and Afghanistan. Similarly, Canada plays a
significant role in international state-building activities. The country centers its
approach in several realms, ranging from military and police dimensions to the civil
society: security system reform, building of infrastructure, whole of government
engagement, rule of law, political stabilization through inclusion and gender
equality. Canada also draws attention to the coordination of international efforts at
state-building, since the capacity of fragile states to use aid in an effective manner is
weak (CANADA, 2005).
The Russian Federation views state-building as a process of helping fragile states
in the process of institutionalization, creating better relations with its society and
creating legitimate authority. Hence, the intervention would not represent a kind of
external coercion, but an internal matter of administrative assistance for good
governance and for institutional capacity building. The country also deems that
international intrusion in domestic affairs is counterproductive in the long-term.
For Russia, UN missions should not only focus on short-term alleviating measures,
but also medium- and long-term political assistance whenever the target states
acquiesce to it. Finally, the Russian government believes that regional
organizations—such as the Shanghai Cooperation Organization and the Collective
Security Treaty Organization—should play a greater role in guaranteeing the
efficacy of state-building activities.
The United States of America believes that state-building practices should be
often on strengthening sovereignty of the target country by entailing a more
interventionist role, either done by national governments or by external
institutions. However, the state-building strategies should nevertheless be led upon
the alignment of internal and external stake-holders. In order to design and to
implement these strategies, the operation should be reoriented towards a model
where partnership and co-production of sovereignty becomes the aim of both
national leaders and international partners. Therefore, the influence of external
actors would not be conceived as a “strong external force”, but as “part of the state
itself”, through direct involvement in policy-making committees (WEBER, 2008).
In Iraq, the problem of the legality of the US intervention led to severe issues
regarding its state-building (INTERNATIONAL PEACE ACADEMY, 2003), and the
election process and other facets of building political institutions is at least fragile.
The US is still maintaining a significant number of soldiers there, and the situation
continues to be problematic due to issues such as the rejection by the locals. Initial
38
securitarian strategies concerning state-building put in place by the US brought
about not much success.
As for the Syrian Arab Republic, it deems that international practices of statebuilding should occur only with the acquiescence of the host country. Differently,
Israel’s major concerns regarding state-building lie within the political scope,
especially in Lebanon, where Hezbollah5 has built a parallel quasi-state structure
(DAVIS, 2007). According to the country, even though it defends democratic values
in state-building strategies, no armed opposition groups should have a voice in the
establishment of state-building activities while not abdicating the use of arms.
Moreover, for Israel international securitarian strategies should consider neutrality
as long as they do not end up protecting illegitimate armed opposition groups.
Brazil sees state-building as an activity undertaken attempting to build (or
rebuild) the institutions of a weaker, post-conflict or failing state. For the country
national leadership and accountability is centrally important in processes of
internationally guided state-building. Political stabilization, the rule of law,
rebuilding institutions, effective implementation of anti-corruption policies and
government accountability are among its main goals. Besides being a participant in
the International Dialogue for Peacebuilding and Statebuilding, Brazil has been
playing an active role in state-building projects in Haiti since 2004, along with
MINUSTAH, the UN peace-keeping mission in Haiti.
Accordingly, Argentina, Bolivia, Chile, Ecuador, Paraguay, Peru and Uruguay
besides Brazil are South American countries which militarily contribute to
MINUSTAH. They put their state-building emphases in the securitarian realm,
asserting, however, that this strategy must be chiefly sought with the consent of
host governments. Chile particularly defends democratization measures as a means
of international state-building by increasing its legitimacy. Mexico, although not
denying the importance of securitarian and infrastructural state-building measures,
shares the same view as Chile concerning democratization; it holds that for actual
success of state-building operations, democratic political participation is a sine qua
non condition, since it enhances their legitimacy.
Haiti itself being a target country of international state-building efforts poses
many challenges. After the earthquake in 2010, most part of the infrastructure of
the country was lost, therefore, it is an aspect of state-building highly emphasized
by Haiti. Beyond that, it also remembers that international actors and donors should
develop long-term strategies, since short-lived attempts at state-building may thus
fail. Therefore, the country recognizes responsibilities which external bodies have
while implementing state-building. Critical areas for it, in the view of the country,
lie within infrastructure, security, education and health care through the
strengthening of government institutions (CRANE et al., 2010).
Differently, Costa Rica, which was also subject to state-building, claims that it is
highly important for external actors to give room of manoeuvre for the local elites
in such operations. Despite the fact that the first are indeed very significant—
5
Hezbollah is a Shiite Muslim fundamentalist Islamic militant group and political party in Lebanon. It is
supposedly sponsored by the Syrian and Iranian governments. Some states classify it as a terrorist
organization (DAVIS, 2007).
39
particularly in the financial aspect—, it is the latter that actually implement them
and make them last. For the Costa Rican government, an institutional coordination,
including external and domestic actors, is vital for the coherence of state-building
(MORALES-GAMBOA & BARANYI, 2005).
The African Union is making efforts to become a key player in the continent
regarding matters of state-building. Building all African countries into functioning
states is one of the main priorities for its members. However, the African Union still
lacks efficiency and experience in state-building. Hence, the African Union often has
to rely on the United Nations for it. The language that many African countries pose
on what regards to state-building is that of a partnership not based on inequality
and hierarchy, but on mutual respect and solidarity (FLEMMING, 2006).
Nigeria acknowledges the importance of state-building in post-conflict
situations, but believes that they should be dealt with especially through the
mechanisms provided in regional organizations, although also recognizing the need
for UN features. Regarding the problems of state-building in Afghanistan, Nigeria
also considers it a grave issue and supports actions undertaken by the UN in that
sense.
Furthermore, Sudan asserts that the imposition of state-building strategies by
external actors is an option to be firmly discarded. For the country, it should only be
considered at and by the United Nations as last resort, provided that there is some
assent by the target country. They also stress the importance of a donor alignment
to government-guided national plans for state-building, so as to better coordinate
actions and to avoid overlapping of plans made by donors.
As for South Africa, it also considers state-building fundamental in risk areas. It,
nonetheless, recalls for the importance of the “ownership” of the state that is being
built of its own institutions—a view that comes from South African experience,
given that it was itself submitted to a state-building process in the era postApartheid. It strongly encourages the participation of other states in the process,
and believes the African Union should play a leading part when dealing with matters
related to state-building and the Continent.
The group of g7+ most fragile countries—Afghanistan, Burundi, the Central
African Republic, Chad, Côte d’Ivoire, the Democratic Republic of the Congo,
Ethiopia, Guinea-Bissau, Liberia, Sierra Leone, Somalia, South Sudan, Timor-Leste,
Haiti and others—, several of which currently experiencing international peace- and
state-building efforts, together recognize the need for a shift in global policies
regarding state-building, especially to change the approach of international actors,
reinforcing that the concerns of target countries should be more carefully addressed
by aiding states and institutions. Moreover, in its statement of April 2010, the group
reaffirmed the importance of fragile states taking the leadership on state-building
strategies and asked for long-term commitment from the donors or “development
partners” (DILI, 2010, Annex). Their focus relies on governance, economic, human
and social development, and security. While recognizing that international
assistance is of paramount importance, they ask for untying restraints and
flexibility from external actors in order to establish long-term planning (DILI, 2010,
Annex). Cambodia shares this view, even if putting greater emphasis on
40
infrastructural aspects of state-building, such as the construction of roads and
bridges.
The Republic of Korea, Uzbekistan, Kyrgyzstan and Kazakhstan also consider
that infrastructural aspects of state-building are of greatest importance, especially
those which connect isolated regions with national hubs and neighboring countries.
They also stress that combating crimes such as illicit drug-trafficking should be
tackled within state-building measures. For them, coercive methods of statebuilding are only the last resort.
Conversely, many Asian countries, such as Vietnam, affirm that state-building
involves the target states being firmly embedded in international institutional
frameworks, over whose decision making processes they have little influence.
Therefore, they would be in a poor position to resist to international mechanisms of
regulation imposed by the aiding countries. Myanmar, Venezuela and Cuba have
similar positions, being against any sort of interference from external powers in
state-building processes. For both, imposing conditions and parameters is not an
adequate way of conducting them.
On the other hand, Indonesia acknowledges the fact that international statebuilding is crucial for the maintenance of world peace and security, let alone
regional. Yet, it states that external and internal actors must act in consonance,
otherwise attempts at state-building may easily be unproductive. A broad based
political integration of the civil society should be sought while strengthening state
institutions in the long run, whereas military and police actions are deemed useful
for the short-term.
For the People’s Republic of China the process of state-building should not be
coercive, meaning that target states should not be forced to yield their sovereign
powers to external institutions or to other countries. Additionally, for the country
the mechanisms of ceding sovereign autonomy for the regulation of other states or
international institutions incur in blurring the lines between accountability and the
relationships of power among all actors involved (CHANDLER, 2005). The country
also participates in the International Dialogue for Peacebuilding and Statebuilding.
In South Asia, India, Pakistan and Bangladesh center their views on the role of
local political and administrative elites of target states for the success of statebuilding. Besides that, political parties and other similar local organizations are
deemed very important by them, since they could increase the legitimacy and also
gain the support of the society—without them, the political development through
state-building may be debilitated. Nonetheless, they also stress that the
international community while implementing state-building activities has to work
with local governments, having their acceptance to contact indigenous
organizations. Strong support from regional and international organizations is also
a point which they stress as being particularly relevant, as long as their
commitment rests in the long-run.
41
i.
Considering the matter of sovereignty, what are the limits for United Nations
actions in internal affairs in order to maintain international peace and
security? Are there critical situations in which the external presence is vital
for state-building? Would the responsibility to protect principle be
applicable?
ii.
How can the UN role in peacekeeping and state-building operations be
assessed? How could it be improved?
iii.
What practices must be encouraged in order to improve state capacity?
iv.
What roles can regional organizations perform in state-building activities?
v.
What measures can be taken in order to improve coordination between
actors involved in a process of state-building (internal actors, UN, regional
organizations, NGOs, donors, etc.)?
vi.
Is there a better or preponderant focus in state-building strategies, ranging
from securitarian and infrastructural activities to political inclusion
measures? How could securitarian, infrastructural and political state-building
strategies be addressed by the United Nations?
vii.
How to promote political state-building? What are the challenges of
democratization and how to cope with them?
42
Chapter 2
UNITED NATIONS
HUMAN RIGHTS COUNCIL
INTRODUCTION
The United Nations Human Rights Council (UNHRC) is an intergovernmental
body within the United Nations System, which was created by the United Nations
General Assembly on March 15, 2006, to replace the Commission on Human Rights.
The Council has as its main purpose to address situations of human rights violations
and make recommendations on them. The resolution which created the Council
gave it as responsibilities to serve as a forum for dialogue on thematic issues on all
human rights, and to promote the full implementation by UN member states of their
obligations and commitments regarding human rights.
The UNHRC is made up of 47 UN member states responsible for strengthening
the promotion and protection of human rights worldwide. They are elected for
staggered three-year terms on the basis of regional blocs: 13 from Africa, 13 from
Asia, six from Eastern Europe, eight from Latin America and the Caribbean, and 7
from Western Europe and other states. UFRGSMUN’s UNHRC is comprised of the
following countries: Afghanistan, Angola, Bangladesh, Benin, Bosnia and
Herzegovina, Botswana, Brazil, Burkina Faso, Cameroon, Chile, the People’s Republic
of China, Colombia, Democratic Republic of the Congo, Costa Rica, Cuba, Czech
Republic, Egypt, France, Gabon, Germany, Hungary, India, Indonesia, Iraq, Israel,
Italy, Kyrgyzstan, Malaysia, Mexico, Nigeria, Pakistan, the Philippines, Poland, Qatar,
Romania, the Russian Federation, Saudi Arabia, Senegal, South Africa, Spain, Sudan,
the Syrian Arab Republic, Thailand, Uganda, the United Kingdom, the United States
of America, and Uruguay.
Although UNHRC’s resolutions are not binding, they carry great weight on
human rights issues, since the organ is one of the most prominent institutions
concerning them. The Council also issues decisions (for its own procedural matters)
and presidential statements (for new pressing events). It also continues to work
closely with the UN Special Procedures established by the former Commission on
Human Rights and assumed by the Council, which means that the UNHRC may
establish mandates for individuals (called “Special Rapporteur”, “Special
Representative of the Secretary-General” or “Independent Expert”) or groups (one
from each region) to examine, monitor, advise and publicly report on human rights
situations in specific countries or territories, known as country mandates, or on
major phenomena of human rights violations worldwide, known as thematic
43
mandates. These are usually put up in order to respond to individual complaints,
conduct studies, provide advice on technical cooperation at the country level, and to
engage in general promotional activities. However, the specifics of the mandates are
established and defined by the resolution which created them.
This year, UFRGSMUN’s UNHRC puts forward two very controversial, complex
and challenging themes to be discussed. The first topic is the problem of human
rights violations perpetrated by Private Military and Security Companies and their
accountability. The second handles the subject of extrajudicial killings, particularly
the case of targeted killing of non-state actors and their legality.
44
TOPIC A: The Activities of Private Military and Security Companies and
Human Rights Violations
Cláudia Pfeifer Cruz, Luíza Leão Soares Pereira and Raoni Fonseca Duarte
Despite the general assumption of the engagement of public militaries in
warfare, throughout history, conflicts have often been fought by for-profit private
entities. The existence of Private Militaries and Security Companies (hereinafter
PMSCs) in the military scenario is not exactly new, and the “State monopoly on the
use of the force is the exception instead of the rule” (THOMPSON, 1996 apud
GOVERN; BALES, 2008). This corporate model can be traced back at least 4,000 years,
when the King Shulgi of Ur (2094-2047 B.C.) used mercenary forces during the
Sumerian Renaissance. In the Ancient Egypt, the Numidian mercenaries played a
large role in Ramses attack to Kadesh (1294 B.C.) (MILLIARD, 2003). This activity
suffered an expressive development during the apogee of the Greek and Roman
societies, which relied heavily upon mercenaries. In the Middle Ages, the mercenary
practice persisted and was incorporated to the logic of the feudal system, when
feudal lords had their own private armies. During the Renaissance, the first private
companies of mercenaries emerged in the city States of Italy: the condottieri.1 Due to
their small population, these cities used the condottieri in order to guarantee the
workings of the local economy, and their populations’ protection from potential
domestic rivals (GAINER, 2010; STINNETT, 2005).
Following the end of the Thirty Years War (1618–1648), when the overwhelming
majority of combat forces were privately contracted, the Peace of Westphalia caused
the emersion of the concept of State sovereignty. The State became responsible for
protecting their nationals militarily, and its monopoly on the use of force was
legitimized. Notwithstanding, it was not until the Franco-Prussian War of 1870 that
the ‘nation in arms’ concept gained predominance in the world’s militaries, and
armies built upon national loyalties became the general rule (MILLIARD, 2003).
Despite the expansion of State’s military forces in most European countries, the use
of mercenary activities persisted in the following centuries.
Despite the considerable decrease in the use of mercenaries in Europe since the
end of the 19th century, the reality was exactly the opposite in Asia and Africa, which
were under the rule of the European empires. The partition of Africa between the
main European powers stimulated a massive deployment of European mercenaries
in the continent in order to guarantee the control over the new colonies, the
exploitation of its resources, and the security of European settlers and business men
(MOLLER, 2002).
In the first part of the 20th century mercenary activities decreased considerably.
In the context of both World Wars, governments preferred the use of national
Armies in combats and invested in their modernization. During the 1960s and 70s,
1
“The condottieri were essentially free companies, led by a senior captain, who offered regional
protection” for Italian city-States” (GAINER, 2010, p. 16).
45
many African governments were threatened by mercenaries: It was largely because
of the abuses committed by these mercenaries that human rights defenders
protested requesting the imposition of a legal framework against their activities. In
addition, more countries became reluctant about the use of mercenary forces,
pressing the United Nations to adopt resolutions condemning it. Therefore regional
organizations, such as the Organization of African Unity, approved resolutions
against mercenaries. The use of mercenaries became condemnable, and States were
reluctant to contract them due to the widespread fear of having their image related
to what mercenaries represented (SCHREIER & CAPARINI, 2005).
The idea behind the modern development of Private Military and Security
Companies evolved out of the United Kingdom’s involvement in the civil war in
Yemen (1962–1965). The British government used a small private force of retired
Special Forces personnel with the ability to have a strategic impact on the war
(KINSEY, 2006). The first PMSC strict sensu dates back from 1967: As a result from the
intervention in Yemen, the Watchguard International was formalized in the Channel
Islands. The company employed former British Special Forces personnel to train
militaries overseas. Since then, PMSCs became a growing industry, influencing the
outcome of numerous conflicts, such as Angola’s, Sierra Leone’s and Croatia’s
(SCHREIER & CAPARINI, 2005). The PMSCs can be seen as the evolution of private
actors in warfare, and corporatization is the main difference between PMSC and
mercenaries and other past private military ventures (SINGER, 2001).
Changes to the international environment in the mid-1970s, such as terrorism,
created social conditions that encouraged the legitimate growth of the security
industry. Although Watchguard had already identified commercial opportunities in
that industry, it was Kroll, Control Risks Groups, and later Defence Systems Ltd and
Saladin, which have benefited from the shift into the commercial market for private
military security. Those companies offered solutions to complex security problems
faced by their customers operating in dangerous regions of the world (KINSEY,
2006).
Although the mercenary activity did not stop existing, these new companies
stayed away from such operations, instead concentrating on providing security
solutions to the commercial sector. During the 1980s private companies were
preferred by national governments to support insurgence movements. 2
The end of the Cold War posed the challenge of how to respond to the civil wars
emerging in different regions. The majority of PMSC customers became leaders of
Third World countries3 facing political crisis or multinational corporations involved
in oil and mineral extraction industry. One of the acting companies was Executive
Outcomes (EO), founded in 1989 by a former assistant commander of the South
African Defence Force (SADF). It was initially formed to provide intelligence training
for the SADF Special Forces. The first significant military operation of the company
took place in Angola in 1993, looking for the interests of multinational corporations.
2
Private Security Companies were preferred if the British government was to support an insurgency
movement (BLOCK & FITZGERALD, 1983 apud KINSEY, 2006).
3
Saudi Arabia, Libya, Angola, and Nigeria are examples of countries that hired PMSC to deal with a critical
national situation (MINOW, 2005).
46
Its success in the operation influenced Sierra Leone’s government, which was
engaged in a civil war, to hire the company in 1995 to provide military support to
the national army. These operations supposedly allowed part of the international
community that had interests in these countries to marginalize its responsibility to
intervene in the civil wars going on (KINSEY, 2006).
Despite their prior existence, it was only after the end of the Cold War that the
term “Private Military and Security Companies” came into use, marginalizing the
word “mercenary”. The 1990s experienced a growth in the number of PMSCs. One of
the main reasons for this to occur was the shrinking of world’s armies by more than
6 million personnel during the 1990s (SINGER, 2001). The diminishing interest of the
superpowers in the security of weaker States created an opportunity for
unemployed soldiers to once again band together and fill the unmet need of
countries unable to provide effectively for their own security and order. Four main
reasons may be appointed to explain the enhanced demand for PMSC in recent
years: “the changing nature of armed conflict; the increase in expeditionary
operations undertaken by armed forces; changes in military technology; and the loss
of military expertise due to layoffs” (PERLO-FREEMAN & SKONS, 2008 apud GAINER,
2010). Those changes are directly related to the end of the bipolar order after the
collapse of the URSS.
Due to the large demobilization and liberation of militaries provided by many
Western Armies, an incredible number of “highly professional soldiers” (MAKKI et
al, 2001 apud SCHREIER & CAPARINI, 2005) became available, and found in the
PMSCs new opportunities of employment. Another factor that contributed to the
privatization of military security was the opening up of the international arms trade
to an increasing number of buyers and sellers, which had allowed a broader number
of different actors with the necessary resources to access weaponry (MAKKI et al,
2001 apud SCHREIER & CAPARINI, 2005).
PMSCs have been hired to participate in conflict areas worldwide. In South
America, they provided support to American troops, during the implementation of
Plan Colombia. In Africa, it is noteworthy the replacement of national and
international armies, as responsible for providing safety and logistical support to
local governments, for PMSCs. It is important to observe that “the private sector has
played crucial roles in conflict management and post-conflict peace-building in
Africa” (ISIMA, 2007).4 Many African countries, like Angola, Liberia, Sierra Leone and
Uganda hired PMSC in order to replace the support that until the end of the Cold
War was provided by foreign armies. Moreover, in Asia and in Europe those
companies developed an important participation in some wars that hatched during
the 1990s—such as the Gulf War, and the Balkans War. Most of those companies
4
According to Jeffrey Isima, since the 1990s PMSCs had an increase participation in peace-keeping
missions in Africa. The author listed as examples the following situations where those companies were
hired: “the Pacific Architects and Engineers (PAE) and DynCorp provided logistics support to the UN
Mission in Sierra Leone (UNAMSIL), as well as refurbished airfields and managed air traffic control for the
UN Mission in DRC (MONUC). In Liberia, the ICI and PAE provided military aviation to ECOMOG forces in
the peace support operations. The UN Mission in Ethiopia and Eritrea (UNMEE) also contracted a
commercial de-mining team to replace the Slovak military de-mining groups”.
47
were originated in the United States, the United Kingdom, Australia and South
Africa.
Despite the long existence of private violence, its nature has changed overtime.
In the present days, 500 years after the demarcation between private and standing
armies and more than 3,000 years after Ramses employed Numidian mercenary
forces, the issue of regulation of private security forces remains in question.
The rise of Private Military and Security Companies represents the new business
face of war. This industry is becoming increasingly significant, changing armed
forces around the world and modifying the way wars are fought. Some of the newest
armed forces operating in unstable States and conflict situations come from the
private sector, and, in many States, national police forces are being partially
replaced by PMSCs.
Ever since the occupation of Iraq, in 2003, the number of individuals employed
by PMSCs has largely increased, and gradually more military functions are being
performed by these companies. It is not just the number of PMSCs which is growing,
but the scope of services offered by them. Today, these companies provide security
for a range of different facilities, such as multinational corporations and
governmental assets.
The PMSCs have operated in all continents, and in places as diverse as Kosovo,
Timor-Leste, the Philippines, Haiti, and Afghanistan. Currently, the United States
and the United Kingdom have become the main recruiters of this industry. They are
not, however, the only ones: European countries use their services for the
deployment of peacekeeping contingents; Latin American countries hire PMSCs to
fight against drug cartels; Southeast Asian nations resort to them in the fight against
terrorism; and a number of failing and failed States that lack capable forces to reestablish internal security and public order have been utilizing PSMCs as well. States
are aware of the need to address to the proliferation of this industry. Matters such
as the role, status, accountability and regulation of PMSCs have been constantly
debated.
The use of PMSCs has increased largely due to arguments of reduced public
spending and increased efficiency. While contractors’ pay may seem high, their
hiring remains cost-effective, as they are paid only when needed: When comparing
costs, the significant financial benefits received by the armed forces must be taken
into account. In addition, PMSC can be mobilized on short notice to add to existing
military capabilities.
2.1. PRIVATE MILITARY AND SECURITY COMPANIES
Private Military and Security Companies are companies specialized in providing
security and protection of personnel and property through military skills, combat
operations, strategic planning, intelligence collection, operational support, logistics,
training, procurement and maintenance of arms and equipment. The scope of
services offered by PMSCs is extensive and varies from company to company
48
according to the level and degree of their specialization. The number of companies
willing to act in direct combat is very low, and most of them engage in other
activities.
Although most of PMSCs serve governments and armed forces, some of them
provide security to humanitarian and industrial assets. A part of these companies,
however, has prospered at the other end of the marketplace, working for dictators,
for regimes of failing States and for the organized crime as well.
PMSCs have provided security and support to international and
intergovernmental organizations like UNHCR, UNICEF, and WFP, and to NGOs
engaged in humanitarian aid, enabling them to do important work in dangerous
places. Those companies can fill the “security gap” when countries themselves are
unable to provide security for aid agencies (SCHREIER & CAPARINI, 2005).
Some scholars have tried to distinguish PMSCs by the general level of their
activity, placing those that engage in combat operations in an “active category”, and
those that defend territory or provide training and advice in what is called the
“passive category”. The attempt to determine the active or passiveness of a
company by whether its employees are armed or unarmed led to the distinction
between Private Military Companies (PMCs) and Private Security Companies (PSCs).
Nowadays, however, it became clear that many PSCs are now armed and often
perform military roles, turning this distinction blurred and artificial (SCHREIER &
CAPARINI, 2005).
Peter Singer (2003, p. 88–101) divides PMSCs into three “business sectors”: (i)
Military provider firms supplying “direct, tactical military assistance” that can
include serving in front-line combat; (ii) military consulting firms that provide
strategic advice and training; and (iii) military support firms that provide logistics,
maintenance and intelligence services to armed forces.
These companies fill the vacuum mainly left in three types of unstable situations:
(i) in zones of low-intensity armed conflict—the new asymmetrical wars—where the
armies are not fully deployed, or in post-conflict situations with a high level of
insecurity; (ii) in armed conflicts in which international organizations do not
intervene; and (iii) in troubled areas of developing countries where there is no
presence of the State and extractive transnational corporations operate
(THOMPSON, 1994).
PMSCs range from small consulting firms to large transnational corporations.
The latest are genuine military enterprises, usually managed by former militaries,
and have a modern structure, being characterized for offering multiple services.
Most of them operate as “virtual companies” which do not maintain standing forces
but rather draw from database of qualified personnel and specialized subcontractors
on a contract-to-contract basis. There is also a minority of PMSCs which are small
businesses, existing only for a short period of time.
Most of Western PMSCs operate as corporate bodies within registered business
and management structures and are self-regulating and selective. They want to
preserve they reputation in order to gain a long-term market share by providing a
legitimate function. Most claim to provide military services respecting a chain of
49
command structure and military procedures in accordance with international
humanitarian law.5
2.2. THE PRIVATIZATION OF WAR
The outsourcing of military functions and the provision of military and security
services in low intensity armed conflicts or post-conflict situations by transnational
companies is known as the top-down privatization. This phenomenon is leading to
the privatization of war and weakening the monopoly of the use of force by States.
The above mentioned monopoly is one of the fundamental principles which
constitute modern State sovereignty, and was enshrined on the foundation of the
security provisions of the United Nations Charter. This situation raises important
issues and poses political, legal and human rights questions to the international
community related with the use and control of violence by non-State actors
(COTTIER, 2006). This situation, which has blurred the borderlines between the
public services of the State and the private commercial sector, allow PMSCs’ clients
to access capabilities of military activities that were once monopolized by the State,
transcending the power of governments.
The defenders of the use of PMSCs argue that the armed forces should not be
used in actions that are not fundamental to national security, such as drug
interdiction and nation-building. Since the 1990s, there has been a trend toward
civilian authorities directing the military to undertake such tasks. This
demonstrates the lack of understanding of the purpose of armed forces, which is to
apply overwhelming and lethal force to defend national security (SCHREIER &
CAPARINI, 2005).
PMSCs, nevertheless, do not hesitate to present themselves as peace
organizations and utilize the aims of humanitarian non-profit organizations to
advertise their activities. This practice jeopardizes the understanding of what is a
truly nonprofit humanitarian organization and what are military and security
companies, which are working indeed for profit. Therefore, in addition to the risk of
becoming associated with PMSCs, humanitarian assistance also risks not being
distinguished from them, becoming target of insurgent attacks in post-conflict
situations. This also creates a dangerous “gray area”, in which the employees of
PMSCs—contracted as civilians but militarily armed—operate.
2.3. LEGAL DEFINITION AND REGULATION OF PRIVATE MILITARY SECURITY COMPANIES
Although the term “Private Military and Security Company” is widely used, it
does not exist within any extant international convention. As a relatively new
phenomenon, the activities of these companies have not been foreseen in the
international instruments. Despite their rise in the last two decades, the legal
definition of the PMSCs remains a problem, due to the wide range of people, services
and activities carried out by these companies. The only unifying factor is that they
5
International Humanitarian Law is a specific body of laws applicable in cases of armed conflict. It is
considered lex specialis, as it applies to the specific case set forth above, and differs from International
Human Rights Law, that is applicable in time of peace, considered therefore the lex generalis.
(ORAKHELASHVILI, 2008).
50
offer services that are comprised within the scope of the military and security
privatization domain.
Despite the fact the regulation of PMSCs at the national level is more developed
than at the international one, it hardly can be understood as rigorous. The action to
control PMSCs has been sporadic and often left to self-regulation and corporate
responsibility. Except for the International Convention against Recruitment, Use,
Financing and Training of Mercenaries, the obligations for States in the field of
PMSCs activities arise from the law of neutrality6 and the customary norm that
prohibits the use of force against the political independence and territorial integrity
of States.
As abovementioned, there is no international instrument which regulates and
monitors the military and security activities of these companies. The only direct
international form of regulation is the contract, which PMSCs sign with the
government, the international governmental organization, the NGO or the firm or
individual which contracts them. The failure to establish a legal status for PMSCs
and their employees under international law defers the problem to the national
level. In spite of that, not many States offer effective enforcement mechanisms on
this topic.
2.4. THE PRIVATE MILITARY AND SECURITY CONTRACTOR’S LEGAL STATUS
The personnel who work for the PMSCs, called private military and security
contractors, act worldwide providing services which are difficult to distinguish from
what soldiers from regular armed forces do. 7 Nevertheless, most of their employees
do not satisfy the criteria to benefit from combatant status 8 and have the status of
civilians9 under International Humanitarian Law (STINNETT, 2005).
6
1907 Fifth Hague Convention Respecting the Rights and Duties of Neutral States. Art. 4. The law of
neutrality sets out the rights and duties of neutral powers in international armed conflicts under
customary international law. It prohibits the formation of corps of combatants and the opening of
recruiting agencies on the territory of a neutral power to assist belligerents. The principle of neutrality
applies to both international and internal conflicts.
7
Article 3 of the 1899 Hague regulations provides: “The armed forces of the belligerent parties may
consist of combatants and non-combatants” (IC, 1899). Article 3 of the 1907 Hague Regulations provides:
“The armed forces of the belligerent parties may consist of combatants and non-combatants”. Article 1 of
the 1907 Hague Regulations provides: “The laws, rights and duties of war apply not only to armies, but
also to militia and volunteer corps fulfilling the following conditions: 1. To be commanded by a person
responsible for his subordinates; 2. To have fixed distinctive emblem recognizable at a distance; 3. To
carry arms openly; and 4. To conduct the operations in accordance with the laws and customs of war. . In
countries where militia or volunteer corps constitute the army, or form part of it, they are included
under the domination ‘army’” (IC, 1907).
8
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), 8 June 1977. Art. 43 (2): “Members of the armed
forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the
Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities”
(ICRC, 1977).
9
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), 8 June 1977. Art. 50 (1): A civilian is any person who
does not belong to one of the categories of persons referred to in Article 4 (A) (1), (2), (3) and (6) of the
Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that
person shall be considered to be a civilian (ICRC, 1977). Clearly, however combatants have specific
51
One of the main principles of International Humanitarian Law is the principle of
distinction10, which discriminates civilians and combatants. Military and security
contractors blur these distinctions by, for example, wearing quasi-military
garments. The whole situation described above leaves PMSCs contractors open to
treatment by foreign governments as unlawful combatants.11
International Humanitarian Law does not allow for a category of “quasicombatants”. It may be tempting to argue that PMSCs’ employees are somehow
combatants, since many of them accompany the armed forces who are awarded with
prisoner of war status. According to the Third Geneva Convention (Art. 4, §4), if
these employees are carrying activities such as suppliers for the armed forces, for
example, they would be indeed entitled to prisoner of war status, as long as they
received authorization from the armed forces which they accompany.
The key legal issue relevant for engagement of PMSCs is that of direct
participations in hostilities. Derived from Common article 3 to the Geneva
Conventions12, the notion of “direct” or “active” participation in hostilities is found
requirements for being considered as such by IHL, civilians are to be defined negatively (all those who are
not combatants must be considered as civilians). That happens given that one shall always albeit by the
principle of humanity and that civilians must be preserved from conflict.
10
The principle of distinction between civilians and combatants was first set forth in the St. Petersburg
Declaration, which States that “the only legitimate object which States should endeavor to accomplish
during war is to weaken the military forces of the enemy” (IMC, 1868). The Hague Regulations do not as
such specify that a distinction must be made between civilians and combatants, but Article 25, which
prohibits “the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings
which are undefended” (IC, 1907, Art. 25), is based on this principle. The principle of distinction is now
codified in Articles 48, 51(2) and 52(2) of Additional Protocol I, to which no reservations have been made.
According to Additional Protocol I, “attacks” means “acts of violence against the adversary, whether in
offence or in defense” (ICRC, 2011).
11
The term ‘unlawful combatant’ was particularly used after September 11, 2001, to introduce a third
category of persons which under existing law may be either combatants or civilians, but are denied such
status as not fulfilling essential conditions. Their treatment as a third category is controversial, and,
indeed, questionable. If a person is not a combatant, he or she may be target only if and for such time as
he or she takes a direct part in hostilities. Neither does such third category exactly define the crime
committed by the person in question, nor does it indicate the amount of humanitarian protection even
criminals are entitled to. To use this third category in order to reduce the individual protection below the
minimum standard of human rights is under circumstances legally accepted (FLECK, 2008).
12
“Article 3 common to the four Geneva Conventions, marked a breakthrough, as it covered, for the first
time, situations of non-international armed conflicts. These types of conflicts vary greatly. They include
traditional civil wars, internal armed conflicts that spill over into other States or internal conflicts in
which third States or a multinational force intervenes alongside the government. Common Article 3
establishes fundamental rules from which no derogation is permitted. It is like a mini-Convention within
the Conventions as it contains the essential rules of the Geneva Conventions in a condensed format and
makes them applicable to conflicts not of an international character: (i) it requires humane treatment for
all persons in enemy hands, without any adverse distinction. It specifically prohibits murder, mutilation,
torture, cruel, humiliating and degrading treatment, the taking of hostages and unfair trial; (ii) it requires
that the wounded, sick and shipwrecked be collected and cared for; (iii) it grants the ICRC the right to
offer its services to the parties to the conflict; (iv) it calls on the parties to the conflict to bring all or parts
of the Geneva Conventions into force through so-called special agreements; (v) it recognizes that the
application of these rules does not affect the legal status of the parties to the conflict; (vi) given that most
armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. Its
full respect is required” (ICRC, 2010).
52
in multiple provisions of International Humanitarian Law. 13 Direct participation in
hostilities by civilians entails loss of immunity from attack during the time of such
participation, and may also subject them, upon capture, to penal prosecution under
the domestic law of the detaining State (ICRC, 1977, Art. 51). Despite the serious legal
consequences involved, neither the Geneva Conventions nor their Additional
Protocols include a definition of what constitutes “direct participation in hostilities”
(CAMERON, 2006).
For a civilian to be considered as a direct participant in the hostilities, the
Commentary on Additional Protocol I asserts that the behaviour of civilians must
constitute a direct and immediate military threat to the adversary. This criterion
has been challenged by some scholars and, to a certain extent, by State practice,
which has tried to enlarge the notion, including into this definition not only
activities involving the delivery of violence, but also acts aimed at protecting
personnel, infrastructure and material (PRADO, 2008a).
Contemporary conflicts that include the participation of PMSCs, with the merge
of civilian and military activities, have challenged defining the notion of “direct
participation in hostilities” and the measures to be taken to protect those who are
not directly part of it. The establishment of a clear notion of what direct
participation in hostilities constitutes is necessary to prevent arbitrariness and
avoid killing of innocent civilians. Thus, civilian employees who do not take part in
hostilities cannot be target (SOSSAI, 2009). Establishing the circumstances of “direct
participation in hostilities” other than the process of using a weapon against an
adversary is complex. Some States include in their legislation activities such as
acting as guard or intelligence agents, or providing logistical support as direct
participation in hostilities. However most state legislation has no description of
what constitutes this principle.
Although the possibility of PMSC engaged in direct fighting would be considered
direct participation in hostilities, other activities provided by these firms such as
supporting roles would remain unclassified under International Law. A clearer
definition of that principle is critical in determining the rights and privileges
afforded by the law and the legal consequences of the conduct of PMSCs contractors
(MINOW, 2005).
The status of PMSCs contractors cannot be defined under international law on or
under most national laws. They cannot be classified as “non-combatants”, as
unarmed contractors under the Fourth Geneva Convention, because they carry
weapons and act on behalf of the government. However, they are also not lawful
combatants under the Third Geneva Convention because they do not wear regular
uniforms or answer to a military command hierarchy. These PMSCs contractors also
do not fit the legal definition of mercenaries because that definition requires that
13
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field. Geneva, 12 August 1949, Art. 3.Additional Protocol I to the Geneva Conventions of 1949 relating to
the Protection of Victims of International Armed Conflicts, 8 June 1977, Article 51. Additional Protocol II
to the Geneva Conventions of 1949, and relating to the Protection of Victims of Non-International Armed
Conflicts, 8 June 1977, Art. 13.
53
they work for a foreign government in a war zone in which their own country is not
part of the fight (ICRC, 1977, Art. 47).
The fact that the status of these individuals is unclear, as they are neither
civilians nor combatants, that they are operating in a grey area, and that they may
be easily assimilated to mercenaries, paramilitaries, or unlawful combatants could
exclude the applicability of the Geneva Conventions. Therefore, the law applicable
to the treatment of PMSCs contractors is fundamental in order to decide how to
proceed in human rights and Humanitarian Law violations that may be committed
by the aforementioned subjects.
2.5. HUMAN RIGHTS VIOLATIONS OF PRIVATE MILITARY SECURITY CONTRACTORS
PMSCs employees usually work in situations of great risk, although most of the
times they are not specifically recruited to take part directly in the hostilities. Most
of them have taken part in internal low-intensity armed conflicts without a clear
frontline, where it is impossible to distinguish between offensive and defensive
operations. Most governments assert that PMSCs contractors are civilian employees,
and a minority of the international community treats these individuals as criminal
mercenaries.
The private military and security industry usually recruits former soldiers from
the national armed forces of the country where they are based. Some only recruit
from their home military, whereas others have multinational employee bases,
recruiting personnel from all over the world—e.g. Gurkhas from Nepal; soldiers from
South Africa’s apartheid defense forces; Chilean armed forces, or paramilitaries from
Fiji. Some firms also recruit from guerrilla and rebel groups, and the most prized are
the recruits from elite Special Forces units—Americans from Delta Force and
Rangers; British from the Special Air Service; Russians from the Special Forces units
of the former KGB, the Spetsialnoye Nazranie (Spetsnaz), and of the current FSB. The
Special Operations soldiers, abovementioned as some of the most demanded
personnel for these services, are drawn by the high wages paid by PMSCs (SINGER,
2003).
Notwithstanding, a large number of these PMSCs contractors are neither
national of one of the parties to the conflict nor residents of the country in conflict.
In order to maximize profits, these PMSCs have stimulated the demand of former
military personnel from developing countries by advertising attractive salaries for
jobs in zones of armed conflict. This demand is easily fulfilled in countries with high
levels of unemployment.
Once acting abroad, nevertheless, third country nationals have experienced
contractual irregularities and poor working conditions, including excessive working
hours, partial or full non-payment of salaries, ill-treatment and the neglect of basic
needs such as access to medical services. These PMSCs contractors often find
themselves in vulnerable situations, with contractual irregularities, exploitation,
arbitrary detention and other restrictions on their human and labour rights.
When these “private soldiers” sign their contracts, they commonly waive a
number of rights, including their right to seek legal recourse against the subsidiary
company which has contracted or employed them, even when personal injury or
54
death is caused or contributed to any manner by such company. There is also the
problem of obtaining reparations based on the contracted insurance policies at the
moment of recruitment (PRADO, 2008b).
Another problem is the reintegration of PMSCs’ personnel. Those operating
unlawfully in conflict situations usually receive high payments not only for
psychological traumas as result of what they have been experienced during their
work, but also for the adaptation difficulties at the moment of being reintegrated in
a society with legal order.
2.6. HUMAN RIGHTS VIOLATIONS AND ACCOUNTABILITY
2.6.1. THE PROBLEM OF RELATION OF PMSC TO STATES
The potential for human rights abuses in the situations that PMSCs have to face
is an ever present threat, as it is nearly impossible to hold PMSCs employees
accountable for their actions. Cases where PMSCs employees have used weapons
that may cause unnecessary suffering, possibly in violation of international law, are
not an exception. In Iraq, the second country with the largest presence of PMSCs’
personnel (16,654 contractors)—the first one is Afghanistan (37,839 contractors)—, it
has been alleged that the contractors detain Iraqis without authorization
(SCHWARTZ, 2011).
PMSCs often operate outside governmental control and with limited effective
oversight from State organs. They provide services in a field that is a key aspect of
waging war and may not engage in condemnable activities, such as torture and
inhumane treatment. They are as well prohibited from violating other human rights
obligations, such as freedom of movement and privacy.
It is a fact that PMSCs have been involved in human rights violations and that
they present a challenge for the protection of human rights (STINNETT, 2005). The
fact that human rights are binding only on States decreases the formal legal
responsibilities of PMSCs, as they are often hired by corporations, and not in a direct
link with the State for which they are technically operating. As the link between the
State and the perpetrator of a violation has to be very clear and strong in order for
that State to be accountable for its action, this may lead to impunity from those
PMSCs contractors who violate human rights. Therefore, in some extent, the
accountability of PMSCs depends upon who is contracting them (Foreign
Commonwealth Office, 2002, §34).
The International Court of Justice applies very high standards of proof between
the person who committed the offenses and the direct orders of the State for the
unlawful acts to be carried out. In both the Nicaragua Case and in the Genocide Case,
it has reaffirmed that, in order for an unlawful act to be considered imputable to a
State, the orders have to be very precise in that sense. Other Tribunals, such as the
International Criminal Tribunal for the Former Yugoslavia, are less strict on the
establishment of said link, and admit an allegiance of a State and individuals (ICTY,
1999). The understanding of the ICJ, however, remains the same until now.
According to the International Law Commission (ILC) Draft Articles on State
Responsibility, the respect for human rights implies to refrain from activities that
could violate human rights not only committed by State organs but also private
55
entities directly linked to them or under their command. This could be the case
when PMSCs exercise elements of governmental authority (ILC, 2001, Art. 5). States
which hire these companies to act abroad have to respect their international legal
obligations, which cannot be ignored by outsourcing some of its functions.
Under International Humanitarian Law and human rights law there are norms
States must respect, protect and fulfill. All States are concerned and are bound by
these obligations, be (a) those in the territory where private military and security
companies operate; (b) those which outsource their military functions and contract
private companies; (c) those from where these private military and security
companies operate and export their services; and (d) those whose nationals have
been recruited to be employed by a transnational military and security company
operating in low intensity armed conflicts or post conflict situations. On the other
hand, and in accordance with international human rights instruments, all members
of society, including groups, organs and individuals, bear responsibility in the
protection and promotion of human rights. 14
Despite the increasing international action on post-conflict reconstruction,
humanitarian relief and international interventions, outsourcing security functions
still poses significant challenges to transparency, oversight and accountability. It is
necessary that that are options for regulatory control of PMSCs, but perhaps that
they be realistic, in particular by States which systematically utilize the services of
these companies and those where many of them are based.
2.6.2. THE PROBLEM OF NOT BELONGING TO AN ARMY
The definition of membership in the armed forces has been widely debated,
especially whether PMSCs contractors could be part of it in certain cases. Article 43
of Additional Protocol I provides the definition of member of armed forces 15.
Notwithstanding, a significant number of States have not ratified it, although it is
considered as evidence of customary law (SOSSAI, 2009).
PMSCs contractors are not under obligation to follow military codes of conduct,
as such contractor is bound by contract and is not part of the military chain of
command. Even if the civilian contractors are employed under military command,
they are not under the same condition as the members of the military and they do
14
Universal Declaration of Human Rights, UN Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally Recognized Rights and Fundamental
Freedoms.
15
Additional Protocol I to the Geneva Conventions of 1949 relating to the Protection of Victims of
International Armed Conflicts, 8 June 1977, Article 43 provides that: “1. The armed forces of a Party to a
conflict consist of all organized armed forces, groups and units which are under a command responsible
to that Party for the conduct of its subordinates, even if that Party is represented by a government or an
authority not recognized by an adverse Party. Such armed forces shall be subject to an internal
disciplinary system which, ' inter alia ', shall enforce compliance with the rules of international law
applicable in armed conflict.2. Members of the armed forces of a Party to a conflict (other than medical
personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say,
they have the right to participate directly in hostilities.3. Whenever a Party to a conflict incorporates a
paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to
the conflict.” (ICRC, 1977).
56
not receive the same rewards and sanctions as they. The sanctions for misbehaviour
for PMSCs contractors are limited (MINOW, 2005).
Another problem for accountability is the fact that PMSCs usually do not
properly screen who they hire. Early in the Iraq war, most of the PMSCs’ personnel
were recruited from elite special operations forces. However, as demand grew, so
did the difficulty of finding those qualified former soldiers.
2.6.3. THE PROBLEM OF APPROPRIATE FORUM
Allegedly, PMSCs contractors often utilize force in an excessive and
indiscriminate manner, committing human rights violations that sometimes amount
even to civilian casualties.16 When involved in such crimes, they are not usually
sanctioned or brought before a court of justice, as exemplified by the involvement of
such contractors in the torture scandal of Abu Ghraib (BRINKLEY, 2004) and
shootings against civilians in Iraq (FINER, 2005).
The lack of accountability is one of the major problems regarding PMSCs. Only a
few States have statutes on the matter, and what those statutes do is recognize their
mere existence. In States where these companies typically operate, the legal
structures are often too weak to challenge their activities. Generally, PMSCs are not
subject to governmental control, partly because they are not beholden to any
government and, moreover, because they do not confine their activities within the
borders of a single State.
Current International and Constitutional Law still assign the task of security,
public order and defense to the military and police forces under the concept of
sovereignty and the monopoly of the use of force. If the State fails to show due
diligence in preventing and responding to human rights violations committed by
private actors, such abuses can give rise to State responsibility under International
Human Rights Law (CCPR, 2004, §8). According to some experts, it is indispensable
that the State, in which a private military or security company operates, regulates
controls and monitors its activities. “Any unlawful act committed by its personnel
should be subjected to the norms regulating the situation: Human Rights Law or
International Humanitarian Law according to each case” (PRADO, 2008a, p 31). 17
States have the responsibility to take appropriate measures or exercise due
diligence to prevent, punish, investigate and redress the harm caused by acts of
PMSCs or their employees that violates human rights. Usually, an individual’s crime
falls under the laws of the nation where the crime has been committed, which is
what is called ‘territorial jurisdiction’. However, as PMSCs typically operate in failed
or failing States or conflict zones (SINGER, 2003), the internal prosecution in the
State where the alleged offence is committed becomes more difficult. Because the
acts were committed abroad it is also difficult the application of home State law.
16
On 16 September 2007, according to the United Nations Assistance Mission in Iraq (UNAMI), in al-Nusur
Square in the predominantly Sun neighborhood of Mansour, in Baghdad, security contractors of
Blackwater, a PMS company, protecting a US State Department convoy opened fire on civilians, with
security company helicopters firing into the streets killing 10 persons and injuring 13 other (HASSANI,
2008).
17
Further information on the matter can be found within United Nations document E/CN.4/2003/4. Para.
25 (UNCHR, 2002).
57
That, associated with the fact that international adjudication of abuses is very
difficult given the mentioned problems of classifying the PMSCs contractors under
International Humanitarian Law, may lead to impunity, and raise the number of
breaches among these contractors.
When it comes to armed forces per se, governments have the responsibility to
maintain discipline. National armed forces are accountable domestically through
the political process, and soldiers who commit war crimes, as well as their superiors,
can be prosecuted in national courts and sometimes even before the International
Criminal Court (ICC). Nonetheless the ICC Prosecutor could investigate whether
crimes of war or of crimes against humanity, which are contemplated in the
jurisdiction of the Court, were committed against civilian populations by PMSCs’
employees, in order to do that it is necessary that the country where the violation
occurred has ratified the Statute of the ICC (PRADO, 2008a).
In addition, while some PMSCs have regular corporate existences, and wish to
maintain their reputation as respectable organizations, others having an irregular
existence can be quickly dissolved or disbanded and may be reconstituted in a more
accommodating environment, and, as a consequence, their personnel becomes
difficult to trace and to punish.
Several non-binding United Nations General Assembly resolutions have been
issued to place restrictions on the use of private military actors. One of them is the
Resolution 2465 (UNGA, 1968). This resolution proposed to make the use of
mercenaries against movements for national liberation and independence a criminal
act, to brand mercenaries themselves as outlaws and to compel Member States to
enact domestic legislation to prevent and punish the recruitment, financing and
training of mercenaries within their territory. Nonetheless, the resolution was
limited by applying only to mercenary activity aimed at suppressing national
liberation and independence movements, which makes it irrelevant outside of the
post-colonial context. If contemporary PMSCs could be framed into the mercenary
label, Resolution 2465 would apply only in anti-liberation contexts (GOVERN; BALES,
2008). Following the Resolution 2465, the Resolution 2548 (UNGA, 1969) reaffirmed
that “the practice of using mercenaries against movements for national liberation
and independence is punishable as a criminal act and that the mercenaries
themselves are outlaws”.
The Resolution 3103 (UNGA, 1973) declares that the use of mercenaries by
colonial and racist regimes against the national liberation movements struggling for
freedom and independence from colonialism and alien domination is considered a
criminal act. In order to apply this resolution to PMSCs, the company’s client has to
be a racist regime, suppressing a self-determination movement. Even if both
elements were present, the resolution would be only offended, and, as it merely
creates an inchoate obligation with a character of recommendation, the actions of
the State or the PMSCs would not be per se criminalized.
58
The United Nations General Assembly continued to issue a series of resolutions
addressing mercenarism, emphasizing that such activities are contrary to the
fundamental principles of International Law. Nonetheless, as formerly mentioned,
under the UN Charter, the General Assembly has no authority to enact or terminate
rules of international law (Charter of the United Nations, 1945).
The regulation of PMSCs has achieved some success within national regulations
in some countries. Although some restrict mercenary activity, very few have laws
regulating PMSCs. Legislation within PMSCs host countries usually takes one of the
three forms: (i) a complete ban upon any military activity other than in support of
that country’s armed forces; (ii) regulation or complete prohibition of mercenary
activity, but no mention of PMSCs’ activity; or (iii) explicit regulation of PMSCs
(Foreign and Commonwealth Office, 2002). The two most prominent examples that
will be addressed later on are in South Africa and in the United States of America.
Under the US Arms Export Control Act (AECA), the government regulates the
export of both arms and military services. According to the International Transfer of
Arms Regulation (ITAR), all PMSCs providing strategic, training or maintenance
advice to foreign forces must register with, and obtain a license from, the State
Department. Additionally, this organ must individually approve each special PMSC
contract above US$ 50 million (STINNETT, 2005).
The United States, the Military Extraterritorial Jurisdiction Act (MEJA) was
approved in 2000. It allows persons employed or accompanying the armed forces
overseas to be prosecuted for any offense that would be punishable by
imprisonment for more than one year if committed within the special maritime and
territorial jurisdiction of the United States. Nevertheless, MEJA limitations became
immediately apparent after the incident of Abu Ghraib, when only US Department of
Defense’s employees and enlisted soldiers were within prosecutorial reach. The US
Congress rushed to close this loophole by including within its scope all contractors
“supporting the mission of the Department of Defense” (KIERPAUL, 2008 apud
GOVERN; BALES, 2008).
The most recent change to extraterritorial jurisdiction in the United States’
regulations on the matter is the Uniform Code of Military Justice (UCMJ) expansion
of court martial authority over civilian employees accompanying the military by
adding “or a contingency operation” to Article 2 (A) (10), in 2007. The change was
intended to close a legal loophole that had enabled contract personnel to escape
punishment for violating the law.
In 1997, the South African government introduced the Regulation of Foreign
Military Assistance Act which was specifically designed to regulate operations of
PMSCs based in South African territory. The Act sought to compel organizations,
such as the Executive Outcomes (EO), to seek government authorization for each
contract with a foreign government. The Regulation Act made the South African
government partly responsible for the actions of EO and any other South African
based PMSCs, as it legitimized their standing and conduct of international
operations.
A number of international instruments have been invoked in relation to
activities carried out by PMSCs, such as the UN Convention against Torture, on the
59
case of Abu Ghraib; the International Labour Organisation Conventions, on cases of
the recruitment of PMSCs contractors in developing countries; and Slavery
Conventions, on cases of trafficking of persons.
Seeking to address gaps in International Humanitarian Law as it applies to
PMSCs, in September 2008 the Swiss government in cooperation with the
International Committee of the Red Cross (ICRC) concluded an intergovernmental
dialogue on how to ensure and promote respect for International Humanitarian Law
and human rights by States and PMSCs operating in areas of armed conflict. The
initiative, known as the Montreaux Document, States as objectives to clarify the
existing obligations of States and other actors under International Law; and to
develop good practices, regulatory options and other measures at the national and
possibly the international level.
Although the target audience of the Montreaux Document was primarily States,
the development of the document brought together representatives from
governments, human rights organizations, and the PMSC industry, in order to build
a consensus on how to best achieve its objectives. Three years later, thirty-six
countries have endorsed the document.
An International Code of Conduct for Private Security Service Providers (ICoC)
was another initiative of the Swiss government, in response to industry demands to
develop international standards for PMSCs. The ICoC objectives articulate standards
for PMSCs based on international human rights, and develop a mechanism to
provide effective sanctions when it is breached. It has also the purpose of providing
compensations to victims of PMSCs abuses. Like the Montreaux Document, it was
developed by join participation of PMSCs, States and civil society. It was signed by
participating companies in November 2010. The code is based on contracts to
impose human rights compliant standards direct on the companies, regardless of
where they are based or operating (DCAF, 2010).
Furthermore, the United Nations Commission on Human Rights issued a
Resolution in 2005 that established the UN Working Group on the Use of
Mercenaries mandating it, inter alia:
To monitor and study the effects of the activities of Private Companies
offering military assistance, consultancy and security services on the
international market on the enjoyment of human rights, particularly
the right of peoples to self-determination, and to prepare draft
international basic principles that encourage respect for human rights
on the part of those companies in their activities (UNHCR, 2005).
In 2008 and 2009, the Parliamentary Assembly of the Council of Europe adopted
two reports recommending “that the Committee of Ministers draw up a Council of
Europe instrument aimed at regulating the relations of its member States with PMSC
and laying down minimum standards for the activity of these private companies”
(COUNCIL OF EUROPE, 2008; 2009).
4. BLOC POSITIONS
The majority of Private Military and Security Companies are based on the United
States of America. The country has a long-date history of employment of those
60
companies in military and security missions. They have largely used PMSCs both to
train allies’ national Armies, especially in Africa and Asia, and to provide logistical,
tactical and armed support for its Armed Forces. However, PMSCs have increased
their participation in relevant roles in the US military strategy in the last two
decades. The wars in Afghanistan and in Iraq are the main reasons to explain this
increase of PMSCs’ influence. Nevertheless, the United States claims to have a vast
legal apparatus to regulate the military service and the activities of American
civilians and security companies, inside and outside the country, and is indeed one
of the states that have most widely enacted legislation on the matter.
Despite the decreased number of PMSCs contractors acting in Iraq since its
occupation by the U.S. Armed Forces, in 2003, the second largest presence of PMSCs
personnel is still located there—more than 16,000 (SCHWARTZ, 2011). In 2008,
200,000 private contractors were working in the country (SCHWARTZ, 2011). In 2010,
the personnel of PMSCs outnumber 35,000 (SCHWARTZ, 2011). A large number of
PMSCs are operating in the country without a legal license or with an expired one.
The aforementioned contractors are currently working for NATO and for the U.S.
government. They have been performing a broad range of services in Iraq—from
logistical support to armed security services. Although most of PMSCs in the
country were hired to provide operational support or internal security, they have
played a central role in fighting Iraqi insurgency (AVANT, 2005).
Particularly after the U.S.-led war in Afghanistan, the country saw a rapid
growth in the number of PMSCs acting within its territory. The U.S. Defense
Department has used PMSC in the country both for logistic work and security roles.
In addition, in 2003 the U.S. based PMSC DynCorp received the assignment to protect
the Afghan President Hamid Karzai in 2002 (ISENBERG, 2009).
PMSCs are expanding business in the Middle East since the end of the Cold War.
In the 1990s Vinnell Corporation, an U.S. based PMSC conducted a training of portions
of the National Guard of Saudi Arabia as a joint Saudi-American owned company
called Vinnell Arabia. Qatar citizens have been incorporated to the Bahrain Guards
Training School—a local security company—, which suggests demand for such
services in neighboring States (SINGH, 2009 apud MEARS, 2010).
In Israel and the Occupied Palestinian Territories (OPT), the US based PMSC
Triple Canopy provides security to foreign entities. Notwithstanding, Israel has also a
growing local industry on private security, which is increasingly deployed to protect
settlements within the West Bank, an entity which also acts internationally
(BUCKIN, 2008 apud MEARS, 2010). Israeli PMSCs are mostly involved in guarding
settlements, controlling checkpoints, and in the seizure of Arab houses in East
Jerusalem (MEARS, 2010).During this year uprisings in Egypt, more than 600 people,
mostly foreign businessmen, were evacuated from across the country in a joint
venture between the PMSCs Control Risks and International SOS (HOPE, 2011).
In Africa, the activities of PMSCs have expanded since the end of the Cold War.
Many African countries fell back on such companies to train national Armies, and to
protect multinational companies that operate in their territories. In recent years,
PMSCs were largely hired to act in the context of civil wars that erupted in the
African continent in countries like Angola. During the Angolan civil war (1975–
61
2002), those companies participated actively in the conflict, providing logistical and
armed support both for the national government, and the combatant groups. There
is still a relevant presence of PMSCs in the country to safeguard oil companies; to
protect firms that operate in the countries’ diamonds and other mineral deposits;
and to support the national Forces in the maintenance of national security
(LEANDER, 2005).
South Africa has utilized broadly active PMSCs in the conduct of combat
operations. At the end of the Apartheid era, several soldiers who were trained for
special operations became unemployed. The “pioneer” PMSC Executive Outcomes
served as an alternative for these men. Currently, several of those companies are
based in the country. It has the most advanced legislation regarding the limits for
operation of PMSCs in the continent.
In Nigeria PMSCs work for oil companies in order to guarantee the safety of oil
pipelines. The South African PMSC Executive Outcomes is one of the companies
present in the Democratic Republic of the Congo. It is hired by international
corporations mostly to safeguard extraction mines. In order to support the African
Union mission in Sudan, the United States of America pledged millions of dollars for
PMSCs (SINGER, 2003). Those companies also have been largely hired throughout
the continent to safeguard NGOs’ activities, and to provide support to UN and to
African Union missions.
In the last few years PMSCs are expanding into Asia and Southeast Asia in
particular. Despite this expansion, PMSCs have not yet been contracted to perform
activities that are reserved to the armed forces. The national governments of
Southeast Asia have not allowed any other entity outside the military, to have the
right or capability to use force that can rival their own. However, the war against
terror, increasing piracy attacks, and the general feeling of threat, especially to
foreign interests, have created a demand for the services of PMSCs in the region,
especially from multinational companies (HERNANDEZ, 2010). An increasing number
of PMSC offering anti-piracy security services stationed outside Asia have opened
regional offices in Hong Kong and Thailand. Earlier this year, the Ministry of
Shipping of India issued guidelines allowing merchant ships with Indian crew to
deploy PMSC to fight piracy in the Gulf of Aden (MINISTRY OF SHIPING, 2011).
Since September 11, training programs for foreign armed forces have become a
part of the U.S. global war on terror, and have taken place in countries such as
Pakistan (CUSUMANO, 2011). The US based PMSC Xe Services—previously known as
Blackwater—have worked at a base in Baluchistan, loading missiles and bombs to
strike Taliban and al Qaeda militants. Several of its contractors also worked in the
North-West Frontier Province supervising the construction of a training center for
Pakistan’s Frontier Corps (PERLEZ, 2009).
In Indonesia and Malaysia, PMSCs provided training for the national armed
forces. Alongside with that, PMSCs have provided logistical support, advisory
services, and demining services for both public and private sector. The Philippines
has established companies to provide security to large corporations. Such
companies have employed a number of former members of Canada’s military and
police forces as advisers to deal with armed groups and drug trafficking. The
62
Philippines is also one country known for the recruitment of its nationals by foreign
PMSCs to work abroad. Therefore, the government has banned the deployment of
Filipino workers to Afghanistan, Iraq, Nigeria, Lebanon and Jordan in December 2007
(SEILER, 2009). However, Filipinos continue to be recruited by PMSC using subagents scouting for potential personnel and acting individually to avoid alerting
Philippine authorities.
The People’s Republic of China has no laws against the use of PMSCs. Currently
Computer Science Corporation (CSC), an US based PMSC, is running business
through its subsidiary in Beijing.
In the Russian Federation, the National Criminal Code makes the recruitment,
training or financing of mercenaries, and participation by a mercenary in armed
conflict, punishable by imprisonment. However, there is no specific legislation
concerning PMSCs. Numerous PMSC are operating in Russian territory, and have
been accused of maintaining links with organized crime. Those companies are the
refuge of former KGB and Spetsialnoye Nazranie (Spetznaz) agents, whose units have
been disbanded.
The European Union has no harmonization of legislation concerning the private
security industry. Although there is some regulation of the domestic security
services of member states, it varies widely from state to state. Additionally, there is
little regulation applicable to PMSCs outside the EU countries. These companies
have typically been viewed as part of member state’s national defense policy.
However, in recent times, the European Parliament has expressed some interest in
developing common standards for PMSCs, particularly regarding those actors used
in European Security and Defence Policy (ESDP) missions. Most of European PMSCs
are based in the United Kingdom, however many of these companies are based also
in France, Germany and Poland (SCHREIER & CAPARINI, 2005).
Some countries apply their general commercial regulatory framework to PMSCs.
This is the case in, for example, Germany and Austria. In Germany, PMSCs activities
are regulated by the German Trade Code (Gewerberordnung) and by special legislation
for security services (Bewachungsgewerberecht). The controls on the export of private
military services have been included in the revised Export Regulation
(Aussenwirtschaftsverordnung) of 2002 (KRAHMANN, 2007). Another group of States
does not possess one single national regulatory framework, but leaves the
regulation to subnational authorities, e.g. in Bosnia and Herzegovina and Italy. The
United Kingdom has adopted laws that regulate PMSC acting within its territory.
In Latin America, most PMSC are hired by national governments to combat drugtrafficking, although they are often hired to perform security functions.
Nevertheless, no country in the region has a specific regulation about the use,
financing or activities of private military services. Regarding mercenaries’ activity,
Uruguay is one of few countries, and the only one in South America, that ratified the
International Convention Against the Recruitment, Use, Financing, and Training of
Mercenaries, passed by the United Nations General Assembly resolution 44/34 in
1989.
In the last decades, many Latin-American soldiers have been trained by US
companies and military schools, like the U.S. Army School of the Americas (renamed
63
the Western Hemisphere Institute for Security Cooperation in 2001). The region is
known to be one of the providers of qualified soldiers to be incorporated by PMSCs
due to the experience that many men have had from decades of repressive regime
and dictatorship in the continent. The high demand for PMSC personnel in the
region is also caused by the low-cost of its force. Chile is one of the largest exports of
private soldiers in the region. Hundreds of Chilean professional soldiers were hired
by Xe Services to act in Iraq after receiving training both in Chile and in the U.S.
(PRADO, 2008b).
The use of PMSCs in Colombia became a common practice in the end of the
1990s. The internal conflict situation reigning in the country made it propitious for
the installation of foreign PMSCs and the creation of national ones. The country
relied broadly on PMSC activities to fight drug-trafficking through Plan Colombia,
financed mostly by the U.S. State Department. However, any of the abuses which
may be committed by private contractors working under Plan Colombia can neither
be investigate or judged.18 Additionally, PMSC are accused being involved in both
sides of the conflict in Colombia. While USA companies, such as DynCorp were hired
to assist in anti-drug activities, the Israeli PMSC Spearhead is rumored to have been
hired by drug cartels to provide combat training and support services (SINGER,
2003).
Similarly, in Mexico, drug cartels have hired PMSCs to train their forces in
military tactics as well in counter-surveillance techniques (SINGER, 2003). In
addition, with the sector petroleum reform, new oil companies came into the
country and hired PMSCs (PERRET, 2008).
18
The aerial spraying of Glyphosate and other toxicity-enhancing adjuvents by DynCorp, to eradicate illicit
coca leaves cultivation along the southern Colombian border with Ecuador, would have caused a number
of adverse health consequences, including genetic damage. See A/HRC.4/42/Add.2, paras. 47-51.
64
i.
How should be conducted the use and control of violence by non-State
actors?
ii.
How well does the use of Private Military and Security Companies serve (or
disserve) the purposes of a military in a constitutional democracy?
iii.
Does Private Military and Security Companies fall within the ambit of
national and international law?
iv.
What are the options for regulation of Private Military and Security
Companies in the international level?
v.
How could Private Military and Security Companies be held accountable for
their acts when they are not operating under governmental control?
vi.
How could Private Military and Security Companies contractors meet a status
under the International Law?
vii.
Can Private Military and Security Companies contractors be considered
combatants and therefore both use force and be targeted? Are they entitled
to Prisoner of War status? Even if considered civilians, can these contractors
be targeted?
viii.
How should the international community proceed in case of human rights
and Humanitarian Law violations committed by Private Military and Security
Companies contractors?
65
TOPIC B: Extrajudicial killings: targeted killing of non-state actors
Anaís Medeiro Passos, Gabriela Antunes and Luíza Leão Soares Pereira
1.1. THE HISTORY OF EXTRAJUDICIAL KILLINGS
Extrajudicial killings1 (EJK) have been utilized by states as one of the means of
law enforcement throughout history. The scope of the legality of its utilization,
however, is being more and more reduced, as principles such as the presumption of
innocence and the right to a fair trial are increasingly accepted by States (ICCPR, art.
14; UDHR, art. 11). The right to life, also intimately connected to the decrease in the
international acceptance of EJK, is protected in human rights instruments that have
been massively ratified. Before the advent of the human rights movement,
however, we can observe the historical and continuous state practice of committing
extra judicial killings, as described below in a brief historical background.
As early as the times of Christ, examples of extrajudicial killings can be found;
the Bible itself offers us “reports” of murders undertaken to advance the political
interests of the killer. These cases were even used as a way to justify the targeted
killing practices of underground Jewish groups during the period previous to the
Israeli independence (DAVID, 2002).
The breakup of the Ottoman, Romanov and Habsburg Empires led to persecution
and summary and arbitrary elimination of several minorities within the population.
The nation-state arising and the development of national identity contributed to a
general feeling of discrimination against communities, such as the Jew in Imperial
Russia and Ukraine, the Ottoman Assyrians, Armenians and Muslims from the
Caucasus and Balkans, all those victims of extrajudicial killings by the arising
nations.
The domination of the American mainland by colonial European powers is also a
good example of the employment of extrajudicial killings techniques, with the
elimination of thousand of indigenous peoples. Estimates say that population of
Mexico fell from 25 to 2.65 million in the half century after the conquest; and that of
Peru from 9 to 1.3 million (BURBANK, 2010, p. 172).
1
As stated by the Comission on Human Rights in its resolution 1992/72, and the General Assembly, in its
resolution 45/162 of 18 December 1990, extrajudicial, summary and arbitrary executions are defined as all
acts and omissions of state that violates the recognition of the right to life we found in the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights, as well as
several other treaties, resolutions and declarations adopted by competent United Nations bodies, such as
The Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions, The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, The
Rome Statute of the International Criminal Court and The Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power.
Several cases may be classified as summary or arbitrary executions. When a State detains an individual,
it is held to a “heightened level of diligence in protecting that individual’s rights” (UNHCR, 2010c, p. 18,
§61). If an individual dies in custody, is up to State responsibility. Also, although death penalty is not
prohibited by human rights law, its requirements are rather strict, and the penalty has to fulfill all of
them to be lawfully applied, otherwise to be considered an arbitrary execution and, hence, a violation to
International Law.
66
In the 20th century, colonial reaction to national liberation movements largely
employed “shoot to kill” methods. At demonstrations in Amritsar in 1919, at a
rallying point of confrontation between nationalist and colonialist, British troops
shot to death at least 370 Indians, wounding 120 more. Around 2,500 were
summarily killed for participating in political manifestations and 66,000 were
summary arrested (BURBANK, 2010, p.418) During the revolt in Madagascar in 1947,
the First Indochina War of 1946–54 and the Algerian War of 1954–62, French forces
used collective terror against people among whom rebels were supposed to hide.
Summary executions and torture also took place during the counter-offensive to the
National Liberation Front in Algeria. Lastly, when the Mau-Mau Movement in Kenya
began in 1952, the colonial government responded with massive detentions and
confinements in prison camps, interrogations under torture and unlawful capital
punishment.
Between 1960 and 1980, many states in Latin America adopted counterinsurgency practices against political dissent from their authoritarian and
conservative governments. Targeted killings were largely employed, along with
torture and other forms of ill-treatment. Paramilitary groups acted, as the Juventud
Uruguaya de Pie and the Alianza Anticomunista Argentina, promoting arbitrary “shoot
to kill” actions targeting political opposition.
The State of Israel has actively adopted the targeted killing policy throughout its
history, from its independence in 1948 to the present; this has been one of the Israeli
choices of action when it came to advancing its interests. During the conflict
between Israel and the Arab countries, especially the Palestinians, targeted killings
increased significantly, while during the peaceful times these practices ceased to be
so ordinary. In the 1950s Israel directed its targets to the Egyptian Fedayeen, two of
the intelligence members of the group, who were behind the attacks to Israel, were
killed. In 1971 a unit commanded by General Ariel Sharon attempted to eliminate
Palestinian militants from Gaza, during the operations 104 were killed and 742
arrested (BYMAN, 2006).
1.2. THE HUMAN RIGHTS MOVEMENT DEVELOPMENT IN HISTORY AND A CONTEMPORARY TAKE OF
THEM WHILE DEALING WITH TARGETED KILLINGS
In face of all the violations to human life and dignity, humanitarian and human
rights principles evolved gradually in different civilizations. The Islamic civilization,
based on the Quran, was pioneer on settling forth specific rules as to the legitimacy
of war and its conduct (DAVID, 2002, p.156). After the Middle-Ages, a large number
of agreements have been established between states, in order to protect human
rights at some level; it is in 1648, after the Treaty of Westphalia, which aimed to
regulate conduct of war and prevent unjustified killings, that these attempts to
protect human life have been felt. These principles formed a protective fabric of
rules designed to prevent any unnecessary kind of physical and psychological harm,
protecting human life and ultimately connected to the “principle of humanity”. 2
2
The three cornerstones of the international human rights were the League of Nations, the Humanitarian
Law and the International Labour Organization.
67
There was a preeminently need to redefine State sovereignty, meaning, how far
could the state go under that justification, was it real the thought that “the king can
do no wrong”? Humanitarian Law came first, as a means to regulate war, to cease
the assassinations of civilians, to protect prisoners and combatants from cruel and
inhumane treatment; it imposed a limit to the states autonomy. It was, however, in
the 20th century, after the world was shocked by Hitler’s display of cruelty, that the
need to place human rights as reference for ethics and morals becomes undeniable.
This development in the understanding of the growing importance of the human
person in International Relations was settled in a robust body of norms. In
December 1948, the United Nations General Assembly adopted the Universal
Declaration on Human Rights, where states were being charged internationally for
crimes committed within their territory. In 1949 the Geneva Convention was
adopted. Human rights law experienced a great boom in the 1960s with the adoption
of the International Covenants on Civil and Political Rights and on Economic, Social
and Cultural Rights, turning into concrete norms the ideals present in the Universal
Declaration.3
The monopoly of the state during international conflicts and its legitimate use of
force, paradigm widely accepted in the 20 th century, made the definition of
combatants and civilians much easier to make. The protection of state-army
combatants has been a pacified issue in International Law and humanitarian law,
counting with the separation between combatants and non-combatants, or civilians.
Throughout history, however, armed conflicts changed and the participation of
non-state actors produced doubts as to the application of international and
domestic law in these situations.
The end of the Cold War has shown the necessity of flexibility, for the
international conflict scenario could broaden quickly at any time. One way to
increase flexibility was to rely on the private armies, the private military forces
(WENGER, 2008, p.840). The participation of such actors have increased even more
the complexity of defining combatants, civilians and who should be protected in
what sense under international humanitarian law (WENGER, 2008, p.841). The rise of
non-State actors4 operating “independent and transnationally” (MELZER, 2008, p.7),
for its turn, have added a complicating factor on how to deal with these issues,
spreading doubts and concerns on how should states react. In this scenario, target
killing policies have been claimed as a legitimate mean of defense by some states to
protect from non-state threats, stimulating debates on how existing human rights
3
Apart from the treaties abovementioned, it is widely accepted to include in the international protection
of human rights the principles of customary International Law. Such principles have been referred to by
the International Court of Justice as obligations erga omnes (Barcelona Traction Light and Power Company
(1970)) and are also present in the American Law Institute’s Restatement of the Law where it is stated
that: “A State violates International Law if, as a matter of State policy, it practices, encourages, or
condones: (1) Genocide (2) Slavery and slave trade (3) The murder or causing the disappearance of
individuals (4) Torture or other cruel, inhuman or degrading treatment or punishment (5) Prolonged
arbitrary detention (6) Systematic racial discrimination, or (7) A consistent pattern of gross violations of
internationally recognized human rights” (apud BROWNLIE, 2008, p. 563).
4
For a definition of non-state actors in this discussion, we will employ the following one: “any individual
or entity whose conduct is not attributable to States in accordance with the rules of general internal law
governing the responsibility of states for the conduct of their agents” (MELZER, 2008, p. 52).
68
and humanitarian law should be interpreted at the light of such events to offer
concrete solutions.
2.1. TARGETED KILLINGS AND THE RIGHT TO SELF-DEFENSE—GENERAL FRAMEWORK OF JUS AD BELLUM
As for the merits of the possibility of engaging in self-defense, it is irrelevant as
to the application of international humanitarian law or human rights standards. The
law governing the use of force (jus ad bellum) and the one governing the parties to
the conflicts’ attitude while in combat (jus in bello) are two different bodies of law. It
means that, although a military intervention may be considered illegal under
International Law on the Use of Force, in no way it exempts states from complying
with the ‘laws and customs of war’ (BENVENISTI, 2009). The next paragraphs,
therefore, refer to the jus ad bellum situation of contemporary international conflicts
against terrorism, so as to give a framework to the debate, that should center itself
in the legality of the practice under jus in bello (International Humanitarian Law)
and, more specifically, human rights law and its relation to Humanitarian Law.
The right to self-defense from non-state menaces has been the main argument
presented to justify the practice (U.S., 2003). Countries standing in favor of this
argument claim that the asymmetric character of the so-called war on terrorism
requires preventive response in order to secure national security, and that non-state
actors are capable of committing an armed attack so as to legalize the use of force in
self-defense (FRANCK, 2002).
The right to self-defense in derived basically from two sources: customary law
and Article 51 of United Nations Charter. A restrictive interpretation of this Article,
adopted by most scholars and widely corroborated by state practice (almost
unanimous before the 9/11) states is that the right of self-defense only operates
when there is an actual “armed attack” occurring, more generally only accepted as
performed by another state. A more expansive interpretation of self-defense would,
than, be contrary to the aforementioned Charter. On the other hand, some other
writers and states, notably United States and Israel, have defended a broader
definition that encompasses anticipatory self-defense, pre-emptive self-defense, the
use of force against terrorism (and non-state actors in general) and the protection of
nationals abroad.
Difficulties emerge in defining what constitutes and armed attack and, in the
case of terrorists, if their attacks can be attributable to states. According to the
“effective control test” applied by the International Court of Justice (ICJ) during the
Nicaragua case, the conduct of a non-state actor is only attributable to a state if the
state has “effective control” over the specific conduct of that non-state actor (ICJ,
1986). Also “scale and effects” have to be taken into account to consider the gravity
of such attacks and possible definition as “armed” ones. Grave attacks attributable
to transnational groups effectively related to States would then be seen as “armed
attacks” and are possible of being tackled with military counter-action in selfdefense against those states.
69
Moreover, any act on self-defense has to meet the requirements of necessity and
proportionality. It requires an assessment whether an attack that is expected to
cause incidental loss of civilian life or injury would be adequate to the direct
military advantage obtained5 (AP I, arts. 51 and 57). Even if a he is to be considered a
combatant under International Humanitarian Law, targeting a suspected terrorist
will be considered as an indiscriminate attack if it “may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a
combination thereof, which would be excessive in relation to the concrete and
direct military advantage anticipated” (AP I, Art.51 and 57). According to the
principle of necessity, use of force is the last resort states should use only if others
are not available. This means that if it is possible a fair trial for a suspected terrorist,
for example, it would not be justified to kill him arbitrarily. In the case
apprehending the terrorist is possible it will depend on the degree of willingness or
capability of the de facto force in control of that territory to arrest and try the
terrorists, to extradite them (KRETZMER, 2005, p. 33). Also, all measures must be
future-oriented to prevent further acts from being committed. Retaliation is than
illegal according to International Law: if a state takes action by revenge, it would be
handing down an arbitrary act, also known as an “illegal reprisal”. Moreover, any
measure carried out by States with the purpose of self-defense has to be reported to
the UNSC, ensuring the rightness of the allegation in conformity with the principles
stated above (UN Charter, Art.51).
In practice, however, the nature of terrorist acts and non-state terrorist
organizations makes often difficult to satisfy these conditions and raises doubt
about its applicability in contemporary conflicts involving non-state actors. First of
all, it has been a matter of debate whether Article 51 permits States to use force
against non-state actors. Judgments of the International Court of Justice held that
States cannot invoke Article 51 against armed attacks by non-state actors that are
not imputable to another State (ICJ, 2004; 2005). On the other hand, some states such
as the US defend that Article 51 cannot relativize the right to self-defense, including
from non-State actors, in any situation. Security Council Resolutions 1368 and 1373
issued in the wake of the September 11 attacks as well as the North Atlantic Treaty
Organization’s invocation of the Washington Treaty’s collective self-defense
provision support this argument (UNSC, 2001a; 2001b; NATO, 2001). In the more
common situations where there is a relation with States and transnational groups,
another difficulty comes up with evidences enough to satisfy the condition.
Commonly they receive varying levels of support from a host state and not always
such levels are in accordance with the required ones to be labeled as “armed
attacks” (SCHONDORF, 2004).
5
The proportionality test applied in self-defense standards is different from the one related to
humanitarian law standards: while the first one regards the proportionate action as one enough to cease
the armed attack, the second one regards the damage to civilians calculated in accordance with direct
and objective military advantage.
70
Moreover, most terrorists attacks are minor attacks and would then lack the
“gravity” condition to trigger a victim state’s right of self-defense.6 Attempting to
address such issue, United States and Israel have adopted the “cumulative effect”
argument. Instead of measuring the effect of each individual terrorist action, they
consider the cumulative effect of a series of attacks.
Lastly, it is important to clarify in what situation a State may intervene outside
its national territory. A State may consent other State to use force in its territory
only when killings are handed down in accordance to human rights and
humanitarian law. The fact that the State is not the executor of a targeted killing
does not absolve it for being legally accountable for it. If there is no consent, or in
addition to it, a State may invoke the principle of self-defense to intervene
extraterritorially, having in mind the principles states before regarding legal states
response (REPORT, 2010).
2.2. TARGETED KILLINGS AND INTERNATIONAL LAW
On July 22, 2005, police officers followed Jean Charles Menezes, falsely suspected
to be a suicide bomber, when he left his apartment in London. At the underground
station, Jean Charles started to run when saw the train and was deliberately killed
by police officer. On the night of July 2002, a warplane from Israel dropped a bomb
on a building of Gaza City, aiming to kill the wing leader Salah Shedadded. His wife
and around 12 persons that had no relation with the operation were murdered and
more than 100 suffered from injuries due to the attack. In May 2011, in the dark of
night, US forces in Pakistan killed Osama bin Laden along with four others in a
targeted killing operation aiming to execute the greatest enemy of the United
States. On September 30, 2011, Predator Drones sent to Yemen by the United States
successfully neutralized Anwar al-Awlaki, one of the alleged leaders of the Al-Qaeda.
These operations share the common characteristic of being carried out with the
intention to kill individuals suspected of terrorism and, also, raise many issues
regarding their legality and impact they may have on human rights. Commonly,
International Law appears to be quiet impotent to prevent states and non-state
actors of violating human rights. In fact, human rights and humanitarian law do not
offer easy answers for such problems.
While all conventions dealing with civil and political rights protect the inherent
right to life, none grants it absolute protection. 7 The ICCPR, the American
Convention on Human Rights and the African Charter of Human and People Rights
all prohibit arbitrary deprivation of life, leaving, nonetheless, open the
interpretation of what is in fact “arbitrary” and then allowing States to individually
interpret the term according to their own national interests. The European
Convention for the Protection of Human Rights, for its turn, in article 2(2), states
6
In the Nicaragua case, the ICJ referred to the difference between “armed attack”, that would entitle selfdefense, and a “frontier incident”, which would not (ICJ, 1986). Also the threshold for engaging in selfdefense is referred by the Court in the Oil Platforms case, against Iran.
7
Many international agreements and declarations have recognized the basic presumption every human
being is entitled to the right of life. In article 3 of the Universal Declaration of Human Rights, it says that
“everyone has the right to life, liberty and security of person”. Article 6 of the International Covenant on
Civil and Political Rights, for its turn, states “no one shall be arbitrarily deprived of life”.
71
that deprivation of life is not a violation when it is absolutely necessary, for
example, when aims to prevent any person from suffering unlawful violence.
The term “targeted killing” has been adopted by legal experts (KRETZMER, 2005;
CORACINI, 2006; MELZER, 2008), the press (BOKHARI; BOMB; TARGETED, 2011) and,
more recently, by the UN Secretary General (UNSG, 2006). This process reflects
concerns of the international community on how to handle this practice. A targeted
killing may occur in several different contexts and may be committed by both state
and non-state actors. As we have seen, they have been present throughout history
but, concerning modern times, only recently States have openly admitted the use of
such policy to achieve their objectives. Depending on the context they occur,
different legal standards shall be employed to determine their legality.
Precisely, what distinguishes targeted killings from other actions “is that lethal
force is intentionally and deliberately used, with a degree of pre-meditation, against
an individual or individuals specifically identified in advance by the perpetrator”
(REPORT, 2010, p. 100). Targeted killings are any forcible measure leading to the
death of a human being, despite the means used to achieve this objective. This act
must carry the elements of intention and premeditation. Lastly, operations
targeting unspecified and random targets are not in a targeted killing policy’s scope:
They must target individually selected persons.
The killing of non-state actors raises specific difficulties because it is so hard to
consider that sporadic spreads of violence are enough as to amount to armed
conflict so as to undeniably apply humanitarian law standards. Concerning more
specifically terrorists, they do not distinguish themselves from the civilian
population and are not to be detained in the standards of Prisoners of War. Even if
their actions and the applied counter-measures were to be considered as amounting
to armed conflict, it is difficult to frame them in the two existing categories
(civilians and combatants). Since no consensus has been reached regarding this
matter that is their classification under International Law, States operate in a legal
vacuum that has expanded who may be a lawfully targeted. As these new targets are
not easily recognized, individualized killings have been allegedly by some States
necessary to be handed down to prevent future attacks.
Moreover, new technologies, such as remote controlled combat aerial vehicles,
or “drones”, have been employed due to their precision on killing targets without
collateral damages to the State. The mix of new security practices and legal-vacuum
represents a probable jeopardizing to International Law. As the UNHRC Special
Rapporteur puts in its report:
The result of this mix has been a highly problematic blurring and
expansion of the boundaries of the applicable legal frameworks –
human rights law, the laws of war, and the law applicable to the use of
inter-state force. Even where the laws of war are clearly applicable,
there has been a tendency to expand who may permissibly be targeted
and under what conditions. Moreover, the States concerned have
often failed to specify the legal justification for their policies, to
disclose the safeguards in place to ensure that targeted killings are in
fact legal and accurate, or to provide accountability mechanisms for
violations. Most troublingly, they have refused to disclose who has
72
been killed, for what reason, and with what collateral consequences.
The result has been the displacement of clear legal standards with a
vaguely defined licence to kill, and the creation of a major
accountability vacuum (UNHRC, 2010b, p. 3).
Basically, controversy has arisen concerning three main areas to determine
when a targeted killing is lawful: where conflict between a State and a non-state
actor may classify as an armed conflict and, if so, if it should have an international
or non-international character; what status do non-state actors involved directly
with terrorist activities should have and under what conditions a targeted killing
may be handed down according to the principle of self-defense. These questions will
be addressed in subsequent sections.
2.3. DETERMINING THE APPLICABLE LAW—IS THE “WAR ON TERROR” AN ARMED CONFLICT?
Since November 2000, Israel has openly adopted this policy against Palestinian
militants. At the beginning of the Intifada, on September 2000, Israel defined the
conflict in West Bank as an “armed conflict short of war”8. Most of the targeted
killings carried out by Israel have taken place in “Area A”, a part of the West Bank
under the control of Palestinian Authority. Targets have been members of several
groups, accused of planning and executing attacks on Israeli civilians, including
Fatah, Hamas, and Islamic Jihad.
The United States, soon after September 11, adopted the concept of the “War on
Terror” as a single worldwide international armed conflict against a transnational
non‐state actor (Al-Qaeda).9 The first targeted killing to be reported occurred on
November 3, 2002, when a Predator Drone fired a missile at a car in Yemen, killing
Qaed Senyan al-Harithi, an Al-Qaeda member, suspected of being one of its most
prominent leaders. Estimates indicate that, since then, around 120 such attacks were
carried out by the US (REPORT, 2010).
The four 1949 Geneva Conventions and its two Additional Protocols of 1977
constitute the main existing legal humanitarian framework. They settle three
situations that may constitute a situation of an armed conflict: an international
armed conflict ruled by Convention and Additional Protocol I, a non-international
armed conflict meeting the threshold of Common Article 3 to the Geneva
Conventions and a non-international armed conflict meeting the threshold of both
Common Article 3 to the Geneva Conventions and Additional Protocol II to the
Geneva Conventions.
Common Article 2 to the Convention puts that they “shall apply to all cases of
declared war or of any other armed conflict which may arise between two or more
of the High Contracting Parties”. Since only States may be parties to the
Conventions, it is difficult to defend their applicability to non-state actors. Until the
present moment, customary law does not proscribe a broader concept of
International Law (SASSÒLI, 2006, p.10). The United States has defended, based on
Article 142(3) of the Third Geneva Convention, which contains the Martens Clause,
8
Since the beginning of the current Intifada, Israel has made this argument before the High Court of
Justice and in International Forums (see ISRAEL, 2005).
9
For a legal explanation of the US’ position, see Appendix C of White House (2004).
73
that the “War on Terror” is an international armed conflict beyond the scope of
Geneva Conventions:
Petitioner suggests that, if the Geneva Convention does not apply to al
Qaeda, the law of war does not apply either. That suggestion is
baseless. There is no field pre-emption under the Geneva Convention.
The Convention seeks to regulate the conduct of warfare to which it
applies with respect to nation states that have entered the Convention
and agreed to abide by its terms, but it does not purport to apply to
every armed conflict that might arise or to crowd out the common law
of war. Instead, as explained below, the Convention applies only to
those conflicts identified in Articles 2 and 3. If an armed conflict,
therefore, does not fall within the Convention, the Convention simply
does not regulate it. Nothing in the Convention prohibits a belligerent
party from applying the law of war to a conflict to which the
Convention does not apply (USA, 2006, p. 26).
Some situations involving transnational groups are covered by the law of
international armed conflict, such as hostilities targeting armed forces or the
territory of one state by forces representing a state or de facto representing such
state. Some activities of (and against) transnational armed groups are nevertheless
covered by the law of international armed conflicts, including all hostilities directed
against the armed forces or the territory of one state by forces representing another
state or acting de facto under the direction or control of that other state.
Hostilities involving States and a transnational armed group that do not qualify
as international armed conflicts can be labeled as non-international covered by
Article 3 common to the four Conventions and by Protocol If they attend some
conditions. Article 1(2) of Protocol II excludes “situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a
similar nature, as not being armed conflicts.” Also, have to be taken into account
factor such as:
intensity number of active participants; number of victims; duration
and protracted character of the violence; organization and discipline
of the parties; capacity to respect IHL; collective, open, and
coordinated character of the hostilities; direct involvement of
governmental armed forces (vs. law enforcement agencies); and de
facto authority by the non‐state actor over potential victims (SASSÒLI,
2006, p. 10).
Another situation that could classify as an armed conflict would be a situation
where the levels of violence are not sufficient to be classified as an armed conflict as
viewed in Article 51, but could justify the use of self-defense (UNHRC, 2010b, p. 16).
The attack would have to fulfill not only requirements on its intensity, but also have
to be handed down with certain frequency. In the Nicaragua case, the ICJ ruled that:
the prohibition of armed attacks may apply to sending by a state of
armed bands to the territory of another State, if such operation
because of its scale and effects, would have been classified as an armed
attack rather than a mere frontier incident had it been carried out by
regular armed force (ICJ, 1986, p. 103, §195).
74
The matter of international/non-international character of conflicts has also
been addressed by the International Criminal Tribunal for the former Yugoslavia in
the famous Tadič Judgment (ICTY, 1999). As contemporary conflicts are complex, as
they deal with different states and same groups, and sometimes different groups
that live in the same states, the Court understood that more comprehensive norms
may apply to intricate conflicts so as to attain a broader protection, consonant with
the principle of humanity. That opens the possibility of applying to intricate
conflicts such as the “War on Terror” international armed conflict standards that
are more protective than internal armed conflict standards (DUXBURY, 2007).
2.4. CIVILIANS AND COMBATANTS
If one considers that the law applicable is indeed International Humanitarian
Law—the consequence of the configuration of the situation of the “War on Terror”
as an armed conflict—there is a fundamental decision between civilians and
combatants so as to analyze the legality of the targeted killings of terrorists.
During an international armed conflict, combatants and civilians directly
participating in the hostilities would qualify as lawful targets. According to articles
1,2 and 3 of the Regulations annexed to the 1907 Hague Convention (IV) Respecting
the Laws and Customs of War on Land, combatants may be those involved directly
with a state’s troops party to the conflict, with an armed group belonging to such a
state10 or those being part of a levée en masse.11 Combatants have a direct role in the
hostilities and may not be criminally liable for their participation (IC, 1907). They
can only be punished for violating the laws and customs of war. Being captured by
enemy forces, they enjoy the protection of Convention III regarding prisoners of
war. They can be attacked until surround or become hors de combat.
Civilians are defined as those that do not fall into the category of combatants
(ICRC, 1977a, Art.50, §1). They are protected from enemy attacks by humanitarian law,
enjoying the status of “protected persons” (ICRC, 1977a, Art.51, §2; 1977b, Art. 13,
§3). Therefore, if he or she falls in the power of enemy, should enjoy the protection
of Convention IV. As Antonio Cassese states, this category is “defined in residual and
is negative in relation to that of combatants” (2003, p. 4). It is also important to
stress that, if in doubt as what the status of a person is under International
Humanitarian Law, that person should be considered a civilian.
A different approach would be that terrorists are civilians who can only be
targeted while taking a direct part in hostilities (IC, 1949b, Art.41–43 and 78).
Civilians who engage in a conflict become military legitimate targets, losing the
protection they had before (ICRC, 1977a, Art.51, §3; 1977b, Art.13, §3). They will
enjoy the same protection of combatants during combat, except the privilege
immunity from prosecution. Civilians that have taken part of hostilities can be
10
If fulfils with the four conditions laid out in Article 4 of Geneva Convention III that are: being under
responsible command; wearing a fixed distinctive sign; carrying arms openly; and conducting their
operations in accordance with the laws and customs of war (IC, 1949a, Art. 4, §A (2)).
11
According to Article 4 of the aforementioned Convention: “Inhabitants of a non-occupied territory, who
on the approach of the enemy spontaneously take up arms to resist the invading forces, without having
had time to form themselves into regular armed units, provided they carry arms openly and respect the
laws and customs of war” (IC, 1949a, Art. 4, §A (6)).
75
punished because of their acts or for simply taking part in the conflict. Moreover, if
they are captured in action they are not immune from prosecution (CASSESSE, 2003,
p. 5).
Adopting this approach opens another debate regarding what constitutes the
time of their direct participation during hostilities. It is a difficult task to come up
with a definition of direct participation that protects civilians and at the same time
“does not ‘reward’ an enemy that may fail to distinguish between civilians and
lawful military targets, that may deliberately hide among civilian populations and
put them at risk, or that may force civilians to engage in hostilities” (UNHRC, 2010b,
p. 19, §60). It would be also considered a perfidious means of engaging in conflict,
which is punishable as a war crime.
It is important to bear in mind that after the action has ended, the civilian may
not be subject of attack, but may be arrested and prosecuted for the acts she or he
has committed. Indirect participation in armed hostilities can be criminally
prosecuted, but does not turn the civilian into a lawful target. It is also important to
bear in mind that a factual test has to be applied in order to verify if indeed a
civilian is taking part of hostilities. In the Interpretative Guidance of the ICRC three
criteria are laid down to characterize more precisely what constitutes “direct
participation in hostilities”:
1. the act must be likely to adversely affect the military operations or
military capacity of a party to an armed conflict or, alternatively, to
inflict death, injury, or destruction on persons or objects protected
against direct attack (threshold of harm); 2. there must be a direct
causal link between the act and the harm likely to result either from
that act, or from a coordinated military operation of which that act
constitutes an integral part (direct causation); 3. the act must be
specifically designed to directly cause the required threshold of harm
in support of a party to the conflict and to the detriment of another
(belligerent nexus) (ICRC, 2008, 995–996, Part 1, §V).
Despite all the efforts on creating a less ambiguous concept, a comprehensive
definition on direct participation in hostilities has not been achieved yet by the
international community. Directing efforts on accomplishing this task is essential to
better tackle the issue of unlawful killings and targeting policies on non-state actors.
Given the ICRC’s promulgation of its Guidance and the uncertain response of some
States until the present moment, discussion and revision (if needed) of the
document among all States would be very important.
In a non-international conflict, dissidents do not have the same privileges
enjoyed by combatants. As in an international armed conflict, Governments are free
to prosecute all captured dissidents for sedition and their other violent acts. Also,
they are permitted to directly attack only civilians who “directly participate in
hostilities”. So the difficulty remains concerning the definition of such term even in
conflicts that are of a non-international character.
2.5. UNLAWFUL COMBATANTS
As we have seen above, International Law does not provide a third category
other than the two classic categories (that date back to the 1907 Hague Regulations)
76
of civilians and of combatants. There is no “intermediate category” between a
civilian and a combatant appearing in international treaties of humanitarian law 12
that could resolve the legal gap concerning the status of terrorist and whether they
are a lawful or an unlawful target in shooting to kill policies. Notwithstanding, the
terms “unprivileged” or “unlawful combatant” have been frequently utilized in the
last century in legal literature, military manuals and case law (DORMANN, 2003, p.
47). Some light is needed on understanding what exactly the term means and what
are the existing legal instruments to protect people who fall into this category.
Concepts remain unclear.
An unprivileged combatant can be defined as someone who does not have the
combatant’s privilege of engaging in action and, nevertheless, does participate in
hostilities. Unlawful combatants can be shot during action and may be criminally
prosecuted for their actions committed or simply for having engaged in action. They
include civilians, non-armed members of the Armed Forces and some civilians
accompanying the Armed Forces that usually are protected from attack. Such term
has also been employed to refer individuals that fail to distinguish themselves from
the civilian population at all times while on active duty or otherwise do not fulfill
the requirements for privileged combatant status such as guerrillas, partisans, and
members of resistance movements. This category also encompasses those
combatants who violate the requirements regarding mode of dress, such as regular
military personnel who are caught spying while out of uniform.
Some defend that people who fall in this category, in the case of also meeting the
nationality criteria of Article 4 of the Fourth Geneva Convention 13, are protected by
GC IV. According to them, the fact someone that has participated unlawfully in
hostilities is not a reason for he or she to be excluded from the Fourth Geneva
Convention. The term “protected persons”, referring to persons detained as spies or
saboteurs as well as persons definitely suspected of or engaged in activities hostile
to the security of the State/Occupying Power, would also encompass direct
participation in hostilities. Moreover, Article 45 section 3 of API 14, they claim, also
gives provision supporting this argument. Philip Dorman (2003, p.7), defending this
argument, states that if we do not recognize that GC IV is applicable to some
categories of unlawful combatants “the formulation ‘who does not benefit from
more favorable treatment in accordance with the Fourth Convention’ would be
meaningless”. But there is no consensus regarding what are the legal protections
this category is entitled to.
12
It is important to bear in mind that civilians taking part of hostilities do not lose their status, but just
lose their protection while taking part during hostilities.
13
“Nationals of a State which is not bound by the Convention” are not protected (this is a highly
theoretical restriction, since the 1949 Conventions have virtually universal participation); “Nationals of a
neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent
State,” are not protected “while the State of which they are nationals has normal diplomatic
representation in the State in whose hands they are” (IC, 1949b).
14
“Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who
does not benefit from more favorable in accordance with the Fourth Convention shall have the right at all
times to the protection of Article 75 of this Protocol. In occupied territory, any such person, unless he is
held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of
communication under that Convention.”
77
States that are more directly affected by the menace of terrorism try to pull their
actions from the framework of mere argued legitimacy to the one of legality under
International Law. They would have the disadvantages but not the benefits of both
status, being a lawful target at any time (as opposed to a regular target only during
hors du combat) and no legal protection while being arrested (not enjoying the
prisoner of war status). The issue emerging from this position is that adopting this
concept could represent a possible blurring on the line separating civilians from
combatants, therefore legally justifying arbitrary killings. It would also violate the
general principle governing International Law, the aforementioned Martens Clause,
that says that the interpretation of all norms should be the most consistent possible
with the principle of humanity.
As Sassòli (2006, p. 32) states “practice of international affairs is increasingly less
state centered, while International Law remains very much so”. This incompatibility
with contemporary situation may trigger international legal changes—or not. Some
would argue in favor of a new category of conflict, comprising all aspects of the
struggle between states and transnational terrorist groups in which there was a
clear-cut category encompassing all terrorist activities. This proposal should be
considered carefully. International humanitarian law is based on allowing both
protagonists having the same chances to pursue their aims. How it would be
received by international community if Al Qaeda and United States would be
granted the same kind of legitimacy in their actions? Also, the diversity of non-state
actors is a challenge for coming up with one only category concerning conflict
between them and States. Should all be treated at the same way? Would that be a
fair approach?
Up to now, States have failed in being transparent regarding their own
interpretation of legal targeted killings basis. This lack of transparency constitutes a
violation of the jurisdictionary framework that distinguishes lawful from unlawful
killings. The Human Rights Committee General Comment 31 advocates the need of
countries belonging to ICCPR to “exercise due diligence to prevent, punish,
investigate and redress the harm caused by violations of the right to life” (CCPR,
2004, p. 3, §8). Regional courts also have emphasized the importance of transparency
and accountability as inseparable conditions to fulfill with obligations states have
with humanitarian and human rights law.
2.6. THE LEGAL AND ILLEGAL SORTS OF TARGETED KILLING
Targeted killings are not per se unlawful. Depending on the context they occur,
they will have to fulfill different legal requirements to be labeled as a lawful act.
Outside a context of armed conflict, human rights standards will determine the
legality of the use of force. A killing committed by the State will only be legal if the
use of lethal force is the last resource employed. Moreover, proportion is required
between the level of force employed and objectives to be achieved (Principles 4 and
9 of the UN Basic Principles on the Use of Firearms by Law Enforcement Officials):
the principle of proportionality, along with the principle of distinction between
civilians and combatants are the core of International Humanitarian Law
(DUXBURY, 2007). Furthermore, law enforcement agents have to be trained and
78
know how to use less-than-lethal measures, such as capture, restraint and a gradual
use of force. Taking a human life on this case will only be considered a lawful
execution if it is the only way to protect the lives of others. Shooting-to-kill policies,
as actions whose only resort is the use of lethal force, will then always be viewed as
unlawful, precisely because they are against the basic principle that every human
being is entitled to the right to life (UNHRC, 2010b).
It is not an easy task, however, to determine in this law-enforcement model
when a target killing is a judicial act. In a context of an armed conflict, human rights
and humanitarian law should apply to determine if it is a lawful killing 15, and the
taking of life of a combatant is lawful if he is not hors de combat—which partially
explains the eagerness of states that engage in this policy to try to configure
terrorism as an ongoing armed conflict, as human rights (applicable in times of
peace) is much more protective than Humanitarian Law. Therefore, policies whose
only objective is to kill will be justified, if taken into account the principles of
proportionality and necessity.
The Israeli Supreme Court was the first authoritative judicial organ to treat
specifically of targeted killings. Although the Court’s opinion is not binding outside
Israel, it may be considered to have an important value for international
community. The Court stated in 2006 that the lawfulness of target killings depends
on the contexts that the action is carried out (ISRAEL, 2006). It rejected the granting
of a special category, unlawful combatants, to Palestinian militants, holding instead
they should be viewed as civilians directly participating in hostilities, as long as
some requirements were met.16 At the same time, the court decision has expanded
the concept of what constitutes a direct participation in the conflict, stating that it
can be defined as encompassing all civilians “performing the function of
combatants” (ISRAEL, 2006). These functions include not only carrying arms before,
during or after an attack, but also providing services to unlawful combatants and
participating voluntarily as a human shield (USA, 2006).
It is also important to cite the United States Supreme Court pronunciation in the
same year, stating that every conflict that does not involve a “clash between
nations” is not international (SASSÒLI, 2006, p. 12). In the Hamdan v. Rumsfeld case,
the Court held that: “the latter kind of conflict is distinguishable from the conflict
described in Common Article 2 chiefly because it does not involve a clash between
nations (whether signatories or not). In context, then, the phrase “not of an
15
Human rights law and IHL apply coextensively and simultaneously unless there is a conflict between
them. In situations that do not involve the conduct of hostilities—e.g., law enforcement operations during
non-international armed conflict—the lex generalis of human rights law would apply.
16
Targeting forces carried the burden of verifying the identity of the target as well as the factual basis for
meeting the “direct participation” standard. Even if the target was legally and factually identified by the
Government as legitimate, State forces could not kill the person if less harmful means were available.
After each targeted killing, there must be a retroactive and independent investigation of the
“identification of the target and the circumstances of the attack”. Any collateral harm to civilians must
meet the IHL requirement of proportionality.
79
international character” bears its literal meaning.” (USA, 2006). Indeed, up to now
conflicts with transnational armed groups have not been seen as creating
international conflicts (SASSÒLI, 2006, p. 12). The campaigns carried out against IRA
and ETA by the United Kingdom and Spain, largely known worldwide, are an
example of this resistance in applying the International Armed Conflict
classification. However, as it was previously stated, some recent state initiatives put
this reasoning in doubt.
Numerous reports have been received by the UNHRC Special Repporteur on
extrajudicial, summary or arbitrary executions of the HRC in the last years concerning
targeted killings committed by the Israeli Defense Forces (IDF). Points have been
raised concerning the accuracy of such killings for not resorting to other less-lethal
methods and lack of clarity regarding what rules of International Law were taken as
guidance to define legitimate targets and legitimate methods of warfare, as well as
to assess the proportionality of such acts (UNCHR, 2006, p. 131). One of the most
affected states by these reports, the government of Israel, has contested these
claims, saying that the legal basis for these acts is humanitarian law, since al-Aqsa
Intifada is an armed conflict. It has stated that Israeli security forces operate aiming
at the self-defense of the country, targeting only legitimate objects that threat the
safety of the nation. Also, it said Israel security forces attack unlawful combatants
only when there is an urgent military necessity and when no less-lethal measure is
available to prevent some terrorist act to be committed (UNCHR, 2006, p. 131).
The United States of America is another country which has been often cited on
reports of the Human Rights Council Special Rapporteur for Extrajudicial Killings
regarding the practice. In these texts, it has been stated that United States has been
evasive in pointing out the legal basis in which particular targeted killings are
perpetrated. Namely, the country should enunciate what rules of international
covers US policy, explicate the bases for decision to kill as first resort and pronounce
itself if the countries in which the killings have occurred have given consent, what
procedural safeguards have taken place to ensure drone killings comply with
International Law and measures to ensure that the information in which the killings
were based was accurate. Also, it has requested that the numbers of civilians
collaterally killed due to drone attacks be available to the public, as well as the
initiatives to prevent such events to happen (UNHRC, 2009b). Finally, it remembered
that the Human Rights Committee on the case Lopez versus Uruguay stated that a
State Party can be considered responsible for violations of human rights committed
by agents of the State on foreign a State (CCPR, 1981). Therefore, The USA could be
held responsible for violations occurred while targeting killings were performed
outside the country following government instructions.
The United States affirms that, in a context of armed conflict, humanitarian law
operates in exclusion of human rights law, governing the use of force against
legitimate military targets. This law is the one which determines whether an
individual has been victim of an extrajudicial killing or not. Al-Qaeda terrorists,
being considered to have plotted attacks against the United States, are considered
lawful subjects of armed attacks aiming at the defense of the United States. It also
advocates that the mandate of the Special Rapporteur for extrajudicial, summary
80
and arbitrary executives does not encompass issues arising under the law of armed
conflict, according to the Commission on Human Rights resolution 1982/29 (UNHRC,
2007).17
Regarding the relation between humanitarian law and human rights law, the
International Court of Justice in its Nuclear Weapons Advisory Opinion has decided
that what qualifies as an arbitrary deprivation of life in a context of hostilities: “falls
to be determined by the applicable lex specialis, namely, the law applicable in armed
conflict which is designed to regulate the conduct of hostilities” (ICJ, 1996, p. 240,
§25.). Therefore, it shall be determined by humanitarian law. In its Advisory Opinion
on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, the Court has added to this statement that:
[T]he protection offered by human rights conventions does not cease
in case of armed conflict, save through the effect of provisions for
derogation of the kind to be found in Article 4 of the International
Covenant on Civil and Political Rights. As regards the relationship
between international humanitarian law and human rights law, there
are thus three possible situations: some rights may be exclusively
matters of international humanitarian law; others may be exclusively
matters of human rights law; yet others may be matters of both these
branches of International Law (ICJ, 2004, p. 178, §106).
This position was again restated in the Congo versus Uganda case, in which both
violations of humanitarian and human rights law were reported in the context of an
armed conflict (ICJ, 2005). Other international organization share this point of view,
such as the International Law Commission, the Human Rights Committee, the UN
Commission on Human Rights, the European Court of Human Rights, the African
Commission on Human and Peoples’ Rights, the Inter-American Commission on
Human Rights (IACHR, 2002), the UN Security Council, the UN General Assembly,
and the International Committee of the Red Cross.
In the Nicaragua Case the International Court of Justice took up a restrictive view
on the right states have to self-defend themselves (ICJ, 1986).18 Although The Court
17
“In addition, the mandate of the Special Rapporteur for extrajudicial, summary, or arbitrary executions
does not include the competence to review alleged violations of the law of armed conflict. See
Commission on Human Rights resolution 1982/29. The United States disagrees with the assertion
contained in the Special Rapporteur's August 26, 2005 communication and report to the 61st Commission
on Human Rights (E/CN.4/2005/7) that issues arising under the law of armed conflict are within the
Special Rapporteur's mandate. This assertion by the Special Rapporteur rests on a series of inapplicable
farts, the first of which is that ‘All major relevant resolutions in recent years have referred explicitly to
that body of law’ (E/CN.4/2005/7, para. 45). While recent Commission on Human Rights and UN General
Assembly resolutions have made mention of international humanitarian law in the context of suggestions
or admonitions to governments, this does net somehow impart upon the Special Rapporteur a mandate to
consider issues arising under the law of armed conflict.” (UNHRC, 2007, p. 345).
18
“In the Nicaragua Case the ICJ adopted a restrictive view of the concept but did not provide a general
definition. The Court found that the term ‘armed attack’ has a narrower meaning than the words ‘threat
or use of force’ and ‘aggression’.21 Hence, not every use of force in breach of Article 2(4) of the Charter
amounts to an ‘armed attack’.22 Only ‘the most grave uses of force’23 will qualify as ‘armed attacks’ and
thus trigger a victim state’s right to respond with force in self-defence.24 This restrictive view of the
concept of ‘armed attack’ was re-affirmed by the ICJ in late 2003 in the Oil Platforms Case” (SCHONDORF,
2004, p. 4).
81
stated that a separate customary International Law right of self-defense continues to
exist alongside Article 51 of the Charter, it concluded that an “armed attack” was
required to “trigger a state’s right of self-defense” (SCHONDORF, 2004, p. 4) . This
argument was recently re-affirmed by the ICJ in the Oil Platforms Case and in its
advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (ICJ, 2003; 2004).
In 2009, the ICRC issued its Interpretive Guidance on DPH. According to the text,
in non-international armed conflict civilians who participate directly in hostilities
and are members of an armed group who have a “continuous combat function” are
lawful targets at all times and place. Civilians whose participation are limited to acts,
not being part of armed groups, can only be targeted during the course of their
participations (concretely, from the preparatory measures for committing the act
until the act itself). Although it is not a binding document, it provides useful
information regarding lawful categories that can guide further discussions on how
categorizing transnational armed groups in conflicts.
4. BLOC POSITIONS
Israel is a nation with a comprehensive and significant history of using targeted
extrajudicial killings as a means of advancing its interests. Since 2000 the
government has openly pursued the abovementioned policy, having located and
murdered many alleged Palestinian terrorists. Most of the attacks occur in areas
under Palestinian control, and are directed against groups like Fatah, Hamas, and
Islamic Jihad, which pose a security threat to Israel, since they supposedly plan
attacks on the country. Accordingly, the Israeli government alleges self-defense in
order to put forth targeted killings, combating what it labels as terrorist attacks
directed against its citizens. Moreover, the country argues that according to all of
the classifications of conflict (whether international or non-international), the laws
of armed conflict will apply to the acts of the State. Targeting terrorists, who take
direct part in the conflict between Israel and terrorists organizations, are acts
consistent with the national and religious law of the country and also with
International Law (KENDALL, 2002). The State is party to the 1949 Geneva
Conventions and to 2005 Additional Protocol III.
The United States of America has followed the Israeli policy and has openly
adopted the targeted killing policy in its crusade against Al-Qaeda and other
terrorist groups. According to the law that codifies the existence of the CIA, the use
of force is implicitly accepted, in which the target killings would be included, for
self-defense and maintenance of national security, even when the situation at hand
does not fall into the International Humanitarian Law’s definition of armed conflict.
Later administrations, including Obama’s, have argued that the Unites States is in a
constant state of belligerance with Al-Qaeda and this should be viewed as a situation
of armed conflict. Therefore, it stated that the carried out killings were solely of
combatants, which in turn would be considered legal, in accordance to IHL
(ANDERSON, 2009). The latest use of such technique by the USA was the execution
of Al-Qaeda’s leader, Osama Bin Laden, in Pakistan, in May, 2011, and the killing of
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Anwar al-Awlaki in later September 2011. This is but one example of the American
practice of targeted killings in Pakistan and in Yemen, respectively, which include
the use of drones over the territory of that country. USA is a State party to the 1949
Geneva Conventions and to 2005 Additional Protocol III.
The Russian Federation practices targeted killings in its Chechen territories to
suppress insurgents. In the year of 2006 the Russian Parliament passed a law that
allows security services to execute alleged terrorists outside Russian territory. The
law was, according to the Russian legislator “emulating Israeli and US actions in
adopting a law allowing the use of military and special forces outside the country’s
borders against external threats.” (EKE in BBC, 2006). The State is party to the 1949
Geneva Conventions and to 1977 Additional Protocol I and II.
The European Union’s position on targeted killing has been to condemn the
practice, which has been deemed counterproductive, unlawful and unjustified.
Countering terrorism and respecting human rights and the rule of law are two sides
of the same coin in order to combat effectively international terrorism (UNSC, 2011).
It is a fact, however, that the United Kingdom and Spain have used targeted killings,
whilst combating militants of the groups known as Irish Republic Army (IRA) and
Euskadi Ta Askatasuna (ETA) respectively. Notwithstanding that, today they openly
condemn this policy. On statements to the United Nations regarding counter
terrorism and human rights, the United Kingdom has recalled the application of
international humanitarian law in situations of armed conflict, Germany has put
emphasis on the need to put an end to targeted killings and France has stressed that
countering terrorism cannot be viewed only through the logic of military and police
security (UNSC, 2003). Most European countries are party to the 1949 Geneva
Conventions, to both 1977 Additional Protocols and to 2005 Additional Protocol III.
Costa Rica has a firm conviction that the international community should tackle
the challenge of not putting human rights and counter-terrorism as hierarchical
items (UNSC, 2011) Moreover, Costa Rica has said, in reference to Israel targeted
killings, that extrajudicial killings and suicide bombings were two sides of the same
coin, and that states have to cooperate with each other so as to achieve common
solutions (UNCHR, 2004). Costa Rica is a State party to the 1949 Geneva Conventions,
to both 1977 Additional Protocols and to 2005 Additional Protocol III.
Cuba, first of all, rejects the unilateral categorization by one State of which
actions fits in its definition of terrorism. Such practice, the country affirms, is a
transgression of International Law and the Charter of the United Nations (UNSC,
2011). Moreover, it has defended that the principle of self-defense should not be
viewed as a justification for States to engage in terrorist practices (UNCHR, 2004).
Cuba is a State party to the 1949 Geneva Conventions and to 1977 Additional
Protocol I and II.
Brazil has stressed that actions aiming to combat terrorism should not
jeopardize historic achievements of International Law. Also, the country has stated
that social exclusion and restriction of civil and political liberties are items that
contribute for the arising of criminal activities. In this sense, the country has
defended that a two-fold approach is necessary to better address the issue of
terrorism: repressive measures complemented by measures focusing on social and
83
economic problems (UNCHR, 2004). Brazil is a State party to the 1949 Geneva
Conventions, to both 1977 Additional Protocols and to 2005 Additional Protocol III
Chile condemns all terrorist acts against civilians and all acts of State violating
International Law. While fighting against terrorism, Chile emphasizes that the
respect for human rights, fundamental freedoms and the rule of law cannot be left
aside by states (UNCHR, 2004). The state is party to the 1949 Geneva Conventions, to
both 1977 Additional Protocols and to 2005 Additional Protocol III
Mexico is aware that the international community has to work together to come
up with solutions to protect human rights and fundamental freedoms in the war on
terror. The country has defended the cessation of “all practices contrary to the
principles of International Law and international humanitarian law” (UNCHR, p. 15).
Also, Mexico is a State party to the 1949 Geneva Conventions, 1977 Additional
Protocol I and 2005 Additional Protocol III.
Colombia is a party to the International Covenant on Civil and Political Rights,
the American Convention on Human Rights, the Geneva Conventions and Additional
Protocols and the Rome Statute of the International Criminal Court. Moreover,
Article 93 of the Constitution of Colombia gives the status of domestic constitutional
law to applicable international treaties 19. The Government’s position regarding
Colombian internal conflict has been to state that the country is not engaged in an
armed conflict (UNHRC, 2009a). FARC and ELN, consequently, are terrorists not
belligerents under IHL.
Nigeria is compromised with the combating of the terrorist threat to national
and international security, and has stressed that only “comprehensive measures on
international terrorism could serve to protect [from the threat]” (UNCHR, 2004).
Whereas South Africa defends that extrajudicial executions contravene
International Law and the relevant United Nations conventions (UNCHR, 2004). The
country believes that while tackling the scourge of terrorism a comprehensive
strategy which incorporates securitarian and humanitarian issues, besides good
governance and socio-economic development, is required (UNSC, 2011). Moreover,
South Africa has manifested concern regarding racial and religious groups being
targeted on the pretext of the “War on Terror” (UNGA, 2007).
Algeria has referred to targeted killings committed by Israel as a “State doctrine
the physical liquidation of its opponents, a doctrine commonly known as State
terrorism, which violated the right to life, liberty and security of person” (UNHCR,
2004, §52). While, Senegal affirms that flagrant violations of the “sacrosanct right to
life” only “compromise the peace efforts of the international community” (UNHCR,
2004, p. 17, §94). Gabon has stressed the fact that many conflicts are rooted in
poverty. Combating terrorism has to focus not only on reaction to the threat, but
also on prevention (UNGA, 2003). Lastly, most part of African States are States party
to the 1949 Geneva Conventions and to 1977 Additional Protocol I and II.
The United States has played a significant role on Indonesia’s own fight against
terrorism. After the Bali Bombing in 2002 the Indonesian Government stated that
this attack was an act of terrorism and declared that it would fight back. The
19
“International treaties and agreements ratified by Congress that recognize human rights and prohibit
their limitation in states of emergency prevail in the national law” (apud UNHRC, 2009a).
84
pressure from the United States has led to the adoption of a policy of targeted
killings. Nevertheless, Indonesia has ratified a number of international treaties that
held countries accountable for this kind of practice, such as the International
Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture
(CAT). The USA has helped finance some of the counterterrorism programs of
Indonesia, including the revival of the US International Military Education and
Training (IMET), which had been shut down after the violence perpetrated by the
Indonesian Military in East Timor (Commission on Disappearances and Victims of
Violence , 2006).
Besides the ratification of many international human rights treaties, such as the
ICCPR and CAT, Pakistan has been the stage of many disappearances, extrajudicial
executions of Human Rights Defenders and journalists, as well as members of
opposition and minorities. The assassination of President Benazir Bhutto, in
December 2007, after a political rally in Rawalpindi is a noteworthy case in the
country’s history. Besides that the Pakistani government is conducting many
operations throughout its territory in order to fight Taliban and local Islamic
militants. Pakistan defends that all the operations aiming to kill were launched
when other less-lethal measures were impossible to resort. Also, the country has
said that all drills and weapons used during operations were in accordance with
humanitarian law and practice, which therefore shows a somewhat favorable
position towards the employing of targeted killings as a means to fight terrorism.
The People’s Republic of China has received in 2009 communications of the
UNHRC Special Rapporteur on extrajudicial, summary or arbitrary executions,
concerning accusations about violence and killings during a peaceful demonstration
in the Tibetan Autonomous Region. The State has defended that in order to restore
law and public order authorities have used the appropriate measures, acting
according to the law to protect civilians. Moreover, China has condemned Israeli
targeted killing, saying they only triggered more violence in the regions and
negotiation should be based on United Nations resolutions (UNCHR, 2004). China is a
state party to the 1949 Geneva Conventions and to 1977 Additional Protocol I and II.
Afghanistan, being the scenario of several targeted killings, has stated that
continues its efforts to ensure that the transitional process “is smooth and viable
inside the country”, and for this to happen participation in international
community is crucial (UNSC, 2011). Moreover, Philip Alston, the UNHRC Special
Rapporteur on extrajudicial executions, has said that Afghanistan continues to
undergo a large number of avoidable killings of civilians and the Afghan
government as well as the international community should not tolerate such
assassinations only because there is an armed conflict going on (UNHRC, 2008). The
State is party to the 1949 Geneva Conventions and to 1977 Additional Protocol I and
II.
Japan is a State party to the 1949 Geneva Conventions and to 1977 Additional
Protocol I and II. Being committed to implement the United Nations Global
Counter-Terrorism Strategy, for which Japan is directing its utmost efforts, the
country has invited others to engage in the same action (UNGA, 2007) in order to
85
combat international terrorism. In reference to the killing of Sheikh Yassin 20, the
country has condemned the practice, saying it was unjustifiable and didn’t foster
peace in the region (UNCHR, 2004).
India is aware that targeted killings are a phenomenon widely disseminated in
the world. It believes that the main problem concerning this practice is not the
absence of law itself, but rather its enforcement by the states; it also mentions that
states have to be committed to the implementation of International Law (UNCHR,
2004). In accordance with the Indian position, Bangladesh is against any kind of
disregard for human rights and International Law (UNCHR, 2004).
Malaysia is strongly against extrajudicial killings perpetrated in name of selfdefense. For the country, these kinds of actions contribute only to jeopardize
peaceful solutions of conflict settlement (UNCHR, 2004). Similarly, the Syrian Arab
Republic condemns the use of counter terrorism measures “as a justification to
violate International Law”. Accordingly, the International Community has to
prevent that States defending itself from terror can end up engaging in the same
kind of action (UNSC, 2003, p.13).
i.
Is the current international legal framework of humanitarian law and human
rights effectively equipped to deal with the threat of terrorism?
ii.
If possible and necessary, how existing rules of IHL could be adopted to cover
the action of contemporary transnational armed groups?
iii.
Transnational armed groups can be considered to be involved in an armed
conflict, where therefore IHL applies? Would it be an international or a noninternational conflict? Would there be an armed conflict at all?
iv.
What legal safeguards should terrorist detainees be entitled to?
v.
In which way could a “direct participation in hostilities” be more clearly
defined in order to distinguish those civilians who must be protected from
attacks and those who, in very exceptional circumstances, lose protection
from direct attacks?
vi.
Should states be allowed to fully apply their national legislation abroad when
fighting a transnational armed group?
20
Palestinian leader killed by Israeli forces on March 22, 2004.
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Chapter 3
INTERNATIONAL COURT OF JUSTICE
INTRODUCTION
History of the Court
The creation of the International Court of Justice may be traced back to a process
of development of the methods for pacific settlement of international disputes.
Efforts towards arbitration culminated in the instauration in 1899 of the Permanent
Court of Arbitration, whose faults—such as the fact that it, not being a standing
court, could not establish jurisprudence—were crucial to the proposal of a new
system (MCNAIR, 1953).
In 1920 a committee of jurists, indicated by the Council of the League of Nations,
began the drafting of a Statute for a Permanent Court of International Justice
(hereinafter, PCIJ), which began to function in 1922. The PCIJ, considered the
substantial predecessor of the International Court of Justice due to the similarity
between both Statutes, discontinued its activities during the Second World War.
Following the end of the conflict in 1945, a conference held in San Francisco
decided for the creation of a new court, which would be linked to the United Nations
and better represent the new international order. Providing continuance to the PCIJ
in the form of the similar Statute and continued jurisprudence, the International
Court of Justice (hereinafter, ICJ) was thus created in 1945. After the formal
dissolution of the PCIJ in April 1946, the ICJ held its first public sitting on the 18th of
that same month, receiving its first case one year later, the famous Corfu Channel
case (United Kingdom of Great Britain and Northern Ireland v. Albania), which helped
underline the modern concept of state responsibility.
Organization of the Court
The ICJ is composed of 15 judges appointed by the United Nations General
Assembly and the Security Council in independent and simultaneous votings. Article
2 of the Statute of the Court establishes that “the Court shall be composed of a body
of independent judges, elected regardless of their nationality” (IC, 1945, Art.2) and
taking into consideration their individual qualification and competence. It is,
however, a rule that the Court may not include more than one national of the same
state, as well as that the ICJ must be the representation of the main forms of
civilization and the principal legal systems of the world (IC, 1945). Elected judges do
not represent their countries of origin, but rather their personal views on
international law.
87
Jurisdiction of the Court
The Court may exercise jurisdiction either by entertaining the legal disputes
between States submitted to the ICJ by them (contentious cases) or by being
requested to issue advisory opinion on legal matters by United Nations organs
(advisory proceedings).
Jurisdiction in contentious cases is established on the basis of the consent of the
States party to the dispute. Consent to the exercise of jurisdiction over a dispute
whose existence is recognized by both parties may be given by them ad hoc or ante
hoc1; that is, through a special agreement—the compromis.
In regards to the exercise of advisory jurisdiction by the Court, it consists in the
issuing of an advisory opinion on a legal question at the request of organs
authorized by the Charter of the United Nations, such as the General Assembly and
the Security Council (IC, 1945). An advisory opinion serves mainly to the purpose of
contributing to the settlement of disputes by political organs and supplying them
with guidance regarding points of law.
1
Statute of the Court, Article 36(1) establishes that “all matters specially provided for (...) in treaties and
conventions in force” are subject to the jurisdiction of the ICJ (IC, 1945, Art.36, §1).
88
TOPIC A: Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal)
Luíza Leão Soares Pereira, Mariana Camargo Contessa and Mariana Bom
1. INTRODUCTION
On January 25, 2000, a complaint was filed in Senegal against the former
President of Chad, Mr. Hissène Habré, by seven citizens and a legal person who
considered themselves victims of crimes under international humanitarian law. He,
who has been living in exile in Dakar since 1990, occupied the post of Chadian
President from June 7, 1982, to December 1, 1990, and, therefore, had ceased to
occupy the position by the time the complaints were filed. On February 3, 2000, Mr.
Habré was indicted for complicity in “crimes against humanity, acts of torture and
barbarity” and placed under house arrest.
The complaints and the indictment were, however, dismissed by the Dakar Court
of Appeal on July 4, 2000, on the grounds that “crimes against humanity” did not
constitute part of Senegalese criminal law, as well as that the torture in question
had been committed abroad by an alien. Senegalese courts, according to the
Senegalese Criminal Procedure, may not exercise extraterritorial jurisdiction.
A Belgian national of Chadian origin and Chadian nationals filed, from November
30, 2000, to December 11, 2001, a series of criminal complaints in Belgian courts
against Mr. Habré for crimes under international humanitarian law. Belgian courts
intend to exercise jurisdiction on the basis of passive nationality.
On September 19, 2005, the investigating judge responsible for the case issued an
international arrest warrant against Mr. Habré. The Dakar Court of Appeal, however,
decided that it lacked jurisdiction to issue an opinion on the request for extradition
since it concerns acts committed by a Head of State in the exercise of his functions.
In 2002, however, the Immunity of Head of State was lifted from Mr. Habré by the
Congolese Minister of Justice. On February 20, 2007, Senegal amends its Penal Code
and Code of Criminal Procedure to include the offences of genocide, war crimes and
crimes against humanity, as well as to enable the exercise of universal jurisdiction
by Senegalese courts.
After that, Senegal referred the matter to the African Union (2005). Belgium
criticized this action as a way to delay criminal procedures towards Mr. Habré. On
May 8, 2007, and December 2, 2008, Belgium issued Notes Verbales drawing
attention to the fact that a dispute existed between both countries in regards to the
trial of Mr. Habré, but reiterating its willingness to cooperate with Senegal pursuant
to the rules international judicial cooperation. Senegal has failed to provide a
response to either of the Notes.
On view of the previously mentioned events, on February 16, 2009, the Kingdom
of Belgium issued the application and request for provisional measures against the
89
Republic of Senegal, instituting proceedings before the ICJ on the grounds, firstly,
that:
Under conventional international law, Senegal’s failure to prosecute
Mr. H. Habré, if he is not extradited to Belgium to answer for the acts
of torture that are alleged against him, violates the Convention against
Torture of 1984, in particular Article 5, paragraph 2, Article 7,
paragraph 1, Article 8, paragraph 2, and Article 9, paragraph 1 (ICJ,
2009a, p. 13, §11).
And, secondly, that:
Under customary international law, Senegal’s failure to prosecute Mr.
H. Habré, or to extradite him to Belgium to answer for the crimes
against humanity which are alleged against him, violates the general
obligation to punish crimes under international humanitarian law
which is to be found in numerous texts of secondary law (institutional
acts of international organizations) and treaty law (ICJ, 2009a, p. 13,
§12).
By means of the Application, Belgium requested the Court to declare that:
the Republic of Senegal is obliged to bring criminal proceedings
against Mr. H. Habré for acts including crimes of torture and crimes
against humanity which are alleged against him as perpetrator, coperpetrator or accomplice; failing the prosecution of Mr. H. Habré, the
Republic of Senegal is obliged to extradite him to the Kingdom of
Belgium so that he can answer for these crimes before the Belgian
courts (ICJ, 2009a, p. 15, §16).
2.1. BELGIUM’S ALLEGATIONS
Belgium bases its claim both in alleged violations committed by Senegal to
Conventional International Law as well as to Customary International Law.
2.1.1. AS TO SENEGAL’S VIOLATIONS TO THE 1984 CONVENTION AGAINST TORTURE
In its Application, Applicant contends that Senegal violated “the Convention
against Torture of 1984, in particular Article 5, paragraph 2, Article 7, paragraph 1,
Article 8, paragraph 2, and Article 9, paragraph 1” (ICJ, 2009a, p. 13, §11).
Article 5, paragraph 2 of the aforementioned Convention reads as follows:
Each State Party shall likewise take such measures as may be necessary
to establish its jurisdiction over such offences in cases where the
alleged offender is present in any territory under its jurisdiction and it
does not extradite him pursuant to article 8 to any of the States
mentioned in paragraph 1 of this article (UNGA, 1984, p. 198, Art. 5,
§2).
This article is precisely the rule that obliges a given state to prosecute in a
matter in which it chooses not to extradite the individual in question.
The second article invoked by Belgium is Article 7, paragraph 1:
The State Party in the territory under whose jurisdiction a person
alleged to have committed any offence referred to in article 4 is found
90
shall in the cases contemplated in article 5, if it does not extradite him,
submit the case to its competent authorities for the purpose of
prosecution (UNGA, 1984, p. 198, Art. 7, §1).
Also, Article 8, paragraph 2:
If a State Party which makes extradition conditional on the existence
of a treaty receives a request for extradition from another State Party
with which it has no extradition treaty, it may consider this
Convention as the legal basis for extradition in respect of such
offences. Extradition shall be subject to the other conditions provided
by the law of the requested State (UNGA, 1984, p. 198, Art. 8, §2).
And the last article of the abovementioned convention is Article 9, paragraph 1:
States Parties shall afford one another the greatest measure of
assistance in connection with criminal proceedings brought in respect
of any of the offences referred to in article 4, including the supply of
all evidence at their disposal necessary for the proceedings (UNGA,
1984, p. 198, Art. 9, §1).
One can observe that all articles of the UN Convention Against Torture invoked
by Belgium have on their content obligations of a state to: (1) Declare its territorial
jurisdiction over cases covered by the Convention; (2) Either extradite or deliver the
person under its jurisdiction to the competent authorities to judge him/her; (3) In
cases of extradition, utilize the Convention as a legal basis in the event of the
inexistence of a bilateral treaty governing these practices among the states
involved; (4) Fully cooperate in conducting investigations to produce evidence and
other necessary means to conduct the trialing of those who have violated the
Convention (UNGA, 1984).
According to Belgium, since Mr. Habré is accused of crimes of torture and since
Senegal is a signatory to this Convention, the Respondent would be obliged by its
provisions to either prosecute him or extradite him. By not performing either of
these duties that are allegedly applicable to the present case, Belgium asserts that
Senegal would be in breach of Treaty norms.
2.1.2. AS TO SENEGAL’S VIOLATIONS OF COSTUMARY INTERNATIONAL LAW
According to Belgium, Senegal would be in breach of Customary International
Law as well (ICJ, 2009a). Hence, the country claims that the failure to either
prosecute or extradite one that is accused of crimes against humanity under
international humanitarian law is a violation of it (ICJ, 2009a). In the Applicant’s
view, the acts committed by Mr. Habré (that would include serious human rights
abuses against political opponents and ethnic groups within Chad) are crimes
against humanity (ICJ, 2009a).
Belgium invokes the art. 7 of the Statute of the International Criminal Court
(hereinafter ICC), which provides among the violations that constitute crimes
against humanity are torture and persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural, religious, gender as defined
in paragraph 3, or other grounds that are universally recognized as impermissible
under international law(…), crimes of which Mr. Habré is currently accused (IC,
91
1998, p. 5, Art. 7). The Applicant then quotes the Furundzija Case, in which the ICC
mentioned that the ICC Statute as well as other legal instruments have enshrined
these crimes as prohibited by Custom.
The obligation to prosecute these crimes would also be of a customary nature.
For that effect, Belgium brings before this Court several instruments in which that
duty is present.2 For the abovementioned reasons, according to Belgium, an
obligation to prosecute and extradite as set forth in custom is also being breached
by the Respondent.
2.1.3. REQUEST FOR PROVISIONAL MEASURES
According to Belgium, the Request for Provisional Measures was undertaken in
view of the pronouncements made by current Senegalese President, Mr. Abdoulaye
Wade. These pronouncements would indicate that the Senegalese duties to
prosecute and extradite Mr. Habré are threatened. In interviews and other occasions
quoted in the Applicant’s Request for Provisional Measures, Mr. Wade would have
mentioned that the trial would take a very long time, and that he could not assure,
during the lengthy process, that Mr. Habré’s would continue within Senegal.
Belgium alleges that these statements made by Mr. Wade would entitle Belgium
to request provisional measures due to the provisions of Article 41 3 of the Statute of
the Court and Articles 73, 74 and 75 of the Rules of Court 4. And in its Request,
Belgium solicited the Court to indicate, pending decision on the merits:
(…) provisional measures requiring Senegal to take all the steps within
its power to keep Mr. H. Habré under the control and surveillance of
the judicial authorities of Senegal so that the rules of international law
with which Belgium requests compliance may be correctly applied
(ICJ, 2009c, §15).
2.2. SENEGAL’S ALLEGATIONS
During Public Hearings, Senegal contends that no situation of urgency or risk of
irreparable harm, that are the requirements for the granting of Provisional
Measures, are met in the present case (ICJ, 2009b). Au contraire, Senegal affirms that
it wishes to proceed with trialing Mr. Habré in its own Courts, and that the
Applicant focuses on Extradition rather than on the duty to prosecute.
According to the Respondent, the African Union’s decision on the matter gave
full support to Senegalese authorities to continue with trial procedures, and also
2
“Resolutions of the General Assembly of the United Nations (see, for example, resolution 3074 (XXVIII), para. 1), the
Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission in
1996 (Article 9), and in numerous calls by the international community to combat impunity (see, for example, the
preamble of the Statute of the ICC, 4th–6th consideranda, the Constitutive Act of the African Union, Article 4 (c), and
various Security Council resolutions - For example, S/Res. 1318, 7 September 2000, VI; S/Res. 1325, 31 October 2000,
para. 11; S/Res. 1820, 19 June 2008, para. 4.)”. Begium v. Senegal. Application Instituting Proceedings. Available
at http://www.icj-cij.org/docket/files/144/15054.pdf
3
Article 41 of the Statute of the ICJ affirms the Court’s right to guarantee the rights of the parties,
pending a final decision on the merits (IC, 1945).
4
These articles refer to the procedure that has to be taken for Provisional Measures to be submitted, and
that their purpose is to guarantee the rights of the parties related to matters of urgency, not jeopardizing
the judgment on the merits of the case.
92
called upon the international community to provide funds and cooperate to bring
Mr. Habré to justice (AAU, 2006). It was the Senegalese Chambre d’Accusation’s
decision, notified to Belgium upon request in 2005, that the trial would be held
inside Senegal, envisaged that it considered Mr. Habré’s prosecution a “basic act of
criminal procedure which put an end to the judicial phase of the extradition
proceedings” (ICJ, 2009b, p. 6).
Also, Senegal affirms that the affirmations made by Mr. Wade were simply in the
sense that the funds needed for Mr. Habré’s trial were not coming through,
therefore frustrating Senegalese attempts of the trial (ICJ, 2009b).
It also challenges the Court’s jurisdiction regarding the case, as, according to
Senegal, there is no dispute regarding the application or content of the 1984
Convention Against Torture (ICJ, 2009b).
2.3. DECISION OF THE COURT CONCERNING PROVISIONAL MEASURES
After the establishment of oral proceedings, during which Senegal offered formal
assurance of its intention not to permit Mr. Habré to leave Senegalese territory
before a final decision is given in the present case, the Court reasoned that the
indication of provisional measures is justified solely on the grounds of urgency,
periculum in mora (ICJ, 2009c). Given the guarantee presented by Senegal, the Court
concluded that, in the present case, there was no apparent risk of irreparable
prejudice to the rights alleged by Belgium as to justify the granting of provisional
measures; The Court, by thirteen votes to one, found that that there was no need for
the indication of provisional measures (ICJ, 2009c; 2009d).
2.4. LEGAL THESIS INVOLVED IN THE MERITS
2.4.1. TYPES OF JURISDICTION:
Jurisdiction is the “general legal competence of States” to decide in judicial,
legislative and administrative matters. (BROWNLIE, 2008) Being the power to control
properties and the conduct of persons in harmony with municipal law, it constitutes
is an important feature of the State’s sovereignty. (O’KEEFE, 2004)
In International Criminal Law, jurisdiction possesses two main perspectives: (a)
prescriptive jurisdiction, which is a State's power to determine the applicable law
inside its territory; and (b) executive jurisdiction, which is the authority to enforce
its law, by applying executive measures, detaining and punishing those who have
committed acts considered felonies under its criminal law. (O’KEEFE, 2004)
For the most part, jurisdiction is limited by the Principles of Non-Interference
and Equality between States. (DONOVAN & ROBERTS, 2005) Thus, the general
presumption is that jurisdiction is territorial. However, the evolution of
international law has resulted in the recognition of the existence of jurisdictional
principles other than the territorial. (BROWNLIE, 2008) In current international law,
even though there is not a unanimously accepted division, five main jurisdictional
principles have been identified.
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2.4.1.1. THE TERRITORIAL PRINCIPLE
The territorial principle is the classic standard which prescribes that the courts
of the location where the crime was physically committed are entitled to exercise
jurisdiction. This is the most widely acknowledged jurisdictional type. In fact,
according to the American Justice, it constitutes an almost universal rule that “the
character of an act as lawful or unlawful must be determined wholly by the law of
the country where the act is done” (USA, 1909, Art. 5; JANIS & NOYES, 2006).
2.4.1.2. THE ACTIVE NATIONALITY PRINCIPLE
Traditionally accompanying the territorial principle, (JANIS & NOYES, 2006) this
principle has provided an alternative basis for the establishment of jurisdiction—
that of the defendant’s nationality. The active nationality principle allows the
inducement of jurisdiction over extraterritorial acts, since, supported by this
principle, a State can prosecute its own nationals anywhere in the world. Because
the joint application of territorial and active nationality may lead to problems such
as parallel jurisdictions and double jeopardy, this principle is often limited by States
to serious felonies (BROWNLIE, 2008).
2.4.1.3. THE PASSIVE NATIONALITY PRINCIPLE
The passive nationality is another principle which is nowadays generally
accepted as a basis for the establishment of jurisdiction, being reflected in the
legislation of various countries (O’KEEFE, 2004). This principle provides States with
the possibility to protect their nationals who were victims of offences committed
abroad. (JANIS & NOYES, 2006) Thus, aliens may be tried for a crime committed
against a national, although the act was performed out of the victim’s country.
2.4.1.4. THE PROTECTIVE OR SECURITY PRINCIPLE
Under this principle, a State may exercise jurisdiction over acts committed
abroad by foreigners, when that act is considered harmful to its security or national
interests. However, in order to establish jurisdiction on this basis, a risk to a
concrete interest must be demonstrated (BROWNLIE, 2008) and the offence at hand
must be considered a threat to some fundamental national interest (O’KEEFE, 2004).
2.4.1.5. THE UNIVERSAL JURISDICTION PRINCIPLE
The controversial universal jurisdiction principle, applicable only when absent
any other possible nexus between the adjudging State and the case, consists in
prescriptive jurisdiction over an offence committed abroad by persons, who, at the
time of commission, are non-resident aliens, where that offence is not considered
neither a threat to the fundamental interest of the prescribing state nor to give rise
to effects within its territory (O’KEEFE, 2004).
The crimes which may give rise to universal jurisdiction must be themselves
deemed to possess a “universal” character—that is, they must be classified as
violations of jus cogens, which are norms in the highest hierarchical position (PPUJ,
2001). Mary Robinson, United Nations High Commissioner for Human Rights, further
clarified the matter:
94
The principle of universal jurisdiction is based on the notion that
certain crimes are so harmful to international interests that states are
entitled—and even obliged—to bring proceedings against the
perpetrator, regardless of the location of the crime or the nationality
of the perpetrator or the victim. Human rights abuses widely
considered to be subject to universal jurisdiction include genocide,
crimes against humanity, war crimes and torture (JANIS & NOYES,
2006).
In the Ex parte Pinochet case, Lord Millet considered that there were two
cumulative criteria to be fulfilled for the exercise of universal jurisdiction: (a) That
the crime is contrary to a peremptory norm of International Law; and (b) that it is so
serious and in such a scale that they can be regarded as an attack on the
international legal order (UK, 1999).
2.4.2. JURISDICTIONAL IMMUNITIES OF FORMER HEADS OF STATE
Perhaps one of International Law’s most important canons is the principle of
sovereign equality of states, and the fact that, as equally sovereign, they shall
remain independent (PCIJ, 1927). Also fundamental is the principle of nonintervention in other states’ internal affairs (BROWNLIE, 2006). Those are the
foundation of several other rules governing international relations, such as the
principle of immunity of states from jurisdiction exercised by other states and
precisely jurisdictional immunity of certain state officials. In fact, it is said that
these very immunities are not granted in the name of a specific person, but in
reason of the country which they represent (WICKREMASINGHE, 2010).
Due to the fact that Heads of State are the main representatives of a nation, and
their link to that state’s personality is so strong, they are granted absolute immunity
from jurisdiction exercised by other states in relation to them (criminal and civil)
(CASSESE, 2005, WICKREMASINGHE, 2010). This is precisely because they are to carry
out their functions in an independent manner, and this rule, a principle named ne
impediatur officium, impedes other states from possible interference in their private
life so as to jeopardize the performance of their functions (CASSESE, 2006). This sort
of immunity is called ratione personae (personal immunity), and is enjoyed by Heads
of State in power regarding all aspects of their lives—either related to their
functions or not (ICJ, 2002a).
As it is the rule in international law, however, Former Heads of State do not
enjoy full immunities as empowered Heads of State. As mentioned before, immunity
derives precisely from their official capacity and the principle of sovereign equality
of states (ICJ, 2002a), and it is natural that, after having left office, Former Heads of
State only enjoy limited immunity—namely, immunity ratione materiae—in reason of
acts that shall both have been (1) performed in official capacity and (2) carried out
while in office: for those, they may not be prosecuted by other states
(WICKREMASINGHE, 2010).
It is also important to stress is that the immunity defense utilized by state
officials, either former or in power, is considered not to apply to International
Courts and Tribunals (CASSESE, 2008), and, specifically with regards to the
International Criminal Court, the immunity plea is specifically prohibited, which
95
permits that individuals, although high rank officials within a state, may be
prosecuted for serious breaches of international law individually (IC, 1998, p. 16, Art.
27, §2).5 That would be precisely because, in International Tribunals, the judiciary
system would be impartial, something that cannot be guaranteed in a national
tribunal, that arguably may be used to intervene in another state’s independence.
(CASSESE, 2008) However, this permission exists and it is a way to avoid impunity
from gross human rights violations, a tendency of the international community,
(CASSESE, 2008) it is almost unanimous that these officials will still challenge
jurisdiction through an immunity plea when trialed by International Tribunals. 6
2.4.3. POSSIBILITY OF WAIVING IMMUNITY?
As immunity enjoyed by Former Heads of State lies on a former official capacity,
and derives from the sovereignty of the State to which they performed their duties,
it is several commentator’s opinion that they can be waived both by the Head of
State himself as well as by the State to whose sovereignty the immunity was
attached to (WICKREMASINGHE, 2010; BIANCHI, 1999). This was also the one of the
two options listed by the Court in the Arrest Warrant case for possibly for a former or
current Head of State to be judged by courts (GAETA, 2003).
In a 2002 letter to the judge in Belgium investigating the alleged offences
committed by Mr. Habré, the Minister of Justice of Chad expressly waived the
immunity from its former president, the first time such an event ever occurred
(GAETA, 2003).
2.4.4. WAR CRIMES AND CRIMES AGAINST HUMANITY: JURIDICAL NATURE (JUS COGENS?)
Some scholars, such as Roberto Ago, during the drafting of the International Law
Commission Articles on State Responsibility, have attempted to codify into this
future treaty the notion of International Crimes, which would entail state’s
responsibility for offenses that would go beyond the ones generated by mere
wrongful acts.7 In 1969, the Vienna Convention on the Law of Treaties, in its article
53, states recognize that “peremptory norms” (jus cogens norms), shall work as to
derogate treaty norms contrary to it (CASSESE, 2006).
However there has been much academic discussion on the matter since the 1960s
(see, for instance, AGO, 1971, ARÉCHAGA, 1978, WEIL, 1983, SHELTON, 2010),
5
See, for instance, the judgment of Slobodan Milošević, former president of Serbia, before the
International Criminal Tribunal of the Former Yugoslavia (ICTY, 2005). For an also comprehensive view of
a plea of immunity in International Tribunals by a former Head of State being rejected, see Prosecutor v.
Charles Ghankay Taylor decision on immunity from jurisdiction (SC-SL, 2004).
6
For evidence of that, simply examine the dockets of the current international criminal tribunals such as
the Security Council’s ad hoc tribunals—Former Yugoslavia and Rwanda—, the special tribunals—Sierra
Leone—and the International Criminal Court’s.
7
On the development of the ILC Draft Articles on State Responsibility, the difficulty of States to accept
“international crimes” committed by them generated such controversy that made impossible for the
original Article 19 of the 1993 proposal to come into being. The final draft as submitted today contains no
mention of “crimes” committed by states, but the interesting development of the meetings until its
withdrawal, in 1998, can be seen in http://untreaty.un.org/ilc/guide/9_6.htm.
96
International Court’s pronunciation on it has mostly been obiter dicta8, and most of
its work on the matter has been through Dissenting or Separate Opinions. 9 Many
authors repel the notion of jus cogens as fundamentally contrary to the formation of
international law, based on the will of sovereign equal states, and say that, mostly, it
is a slippery slope to start ranking norms in accordance with their importance
(WEIL, 1983). Nonetheless, courts such as the Inter-American Court of Human Rights
have been less cautious and have recognized the existence of norms of jus cogens in
several occasions since the 2003 Advisory Opinion on the Juridical Condition and Rights
of the Undocumented Migrants (IACHR, 2003; SHELTON, 2010).
As for the notion of war crimes being fundamentally contrary to International
Law as to configure jus cogens prohibitions, this is read as the International Court of
Justice’s Advisory Opinion on the Threat or Use of Nuclear Weapons of 1996 (ICJ, 1996).
This analogy can be made regarding crimes against humanity as well, as their
prohibition is observed in numerous treaties, such as the ones establishing the
International Criminal Court, the International Criminal Tribunal for the Former
Yugoslavia and the International Criminal Tribunal for Rwanda (CASSESE, 2006;
SHELTON, 2010). Although not mentioning the expression “jus cogens”, Judges
Rosalyn Higgins, Thomas Buergenthal and Pieter Kooijmans in their joint separate
opinion to the Arrest Warrant case affirmed that both war crimes and crimes against
humanity are “heinous in nature” (ICJ, 2002b, §46). Nonetheless, they did not
acknowledge that the gravity of said crimes would amount to the lifting the
application of the norm that prohibits prosecution of a Minister of Foreign Affairs in
power, agreeing, hence, with that final reasoning of the majority of the Court itself.
2.4.5. UN CONVENTION AGAINST TORTURE—TREATY OBLIGATION TO PROSECUTE OR EXTRADITE?
The prohibition to utilize torture has been an evolving norm derived precisely
from the dignity of the human person, to which all are entitled and has a nonderogable nature. It is crystallized in a number of treaties, one of the most
important ones being the International Covenant on Civil and Political Rights of
1966 Article 7, that reads: “No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment (…)” (UNGA, 1966, Art. 7).
In 1984, a Convention now widely ratified was produced by the United Nations,
namely the 1984 UN Convention Against Torture (hereinafter, CAT). The CAT has a
specific definition of torture in its article 1 with important factors that should be
taken into account:
For the purposes of this Convention, the term “torture” means any act
by which severe pain or suffering, whether physical or mental, is
8
In both the Nicaragua Case (1986) and in the Nuclear Weapons Advisory Opinion (1996), the Court expressly
utilized, although obiter dicta, the expression jus cogens (ICJ, 1986; 1996). In another famous case, the
Barcelona Traction Light and Power Co., it has recognized, also obiter dicta, the erga omnes nature of certain
international law norms, such as certain human rights, prohibition of slavery and prohibition of torture
(ICJ, 1970).
9
Opinions that develop this concept are, for instance, Judge Antonio Augusto Cançado Trindade’s
Separate Opinion on the Accordance with international law of the unilateral declaration of independence
in respect of Kosovo (Request for Advisory Opinion), the Dissent of Judge Tanaka in the South West Africa
Case, and others (ICJ, 1966; 2010).
97
intentionally inflicted on a person for such purposes as obtaining from
him or a third person information or a confession, punishing him for
an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for
any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions (UNGA, 1984, p. 197, Art.
1, §1, emphases added).
As stressed, the specific elements for the configuration of torture are that it is 1)
inflicted intentionally, 2) in order to obtain information, confession, to punish or to
intimidate, 3) with the consent or acquiescence of a public official or other in official
capacity.
As for the present case, the fundamental issue regarding CAT is that it is one of
the conventions that impose upon the High-Contracting Parties a special duty so as
to prevent impunity from a crime considered so heinous in nature, which is present
in its Art. 5, paragraph 2, Art. 7, paragraph 1, Art. 8, paragraph 2 and Art. 9,
paragraph 1. They read as follows.
This obligation contained in the abovementioned articles is to either prosecute
the alleged offender or to extradite him to a place that is willing to exercise
jurisdiction over the alleged breach to the CAT (UNGA, 1984). This specific and
innovative instrument is designed so that suspects of having committed torture are
brought to justice (UNHRC, 2007). 10 Some authors designate such obligation as a sort
of universal jurisdiction imposed by treaty, (CASSESE, 2002) as one accused of
torture, in spite of no territory or nationality link, has to be either prosecuted or
extradited by the State that has this person in its territory.
This obligation, known as obligation aut dedere aut judicare (to either extradite or
trial), was recognized by the Committee Against Torture precisely in a case against
Senegal brought by individuals allegedly tortured under Mr. Habré’s rule in Chad.
This case, Guengueng et al. v. Senegal was brought before the Committee responsible
for evaluating the compliance of signatories to the Convention after the dismissal of
the complainants’ case in Senegalese Courts against Mr. Habré (CAT, 2006). Senegal
alleged having no jurisdiction over the case. The CAT Committee’s reasoning was in
the sense that Senegal could not invoke its internal law in order not to trial a claim
made under CAT (BATES, 2007).
In the present case the jurisdiction invoked by Belgium to prosecute Mr. Habré
would be the one derived of passive nationality, 11 and so its claim to prosecute Mr.
Habré would be less inchoate and less controversial than one exercised by a less
10
The CAT was the first convention to establish a treaty obligation to prosecute and extradite. This
obligation was later on embedded in other specific conventions.
11
Which means that the victims being of Belgium nationality would entitle Belgium to exercise
jurisdiction over said offences to CAT, not indeed an application of universal jurisdiction, differently from
cases such as the one present in the Arrest Warrant case against former Minister of Congo, Abdulaye
Yerodia.
98
traditional link, although the latter may be expressly permitted through the
Convention.12
2.4.6. EXISTENCE OF A CUSTOMARY RIGHT TO PROSECUTE AND EXTRADITE?
According to Belgium, not only would Senegal be in breach of the
aforementioned provisions under CAT to either prosecute or extradite Mr. Habré,
but to a norm of customary character in that same sense. In its Application, the
Kingdom of Belgium contends that there is a coexistent norm of a customary
character to oblige states to either prosecute or extradite those accused of crimes
against humanity, which would include torture, along with the provision set forth in
CAT (ICJ, 2009a).13
In order to make its case of the existence of an obligation to prosecute or
extradite for grave breaches of humanitarian and human rights law, Belgium founds
its claims in documents of secondary nature (reports, resolutions) and widespread
treaties. The Application reads as follows:
The obligation to prosecute the perpetrators of such crimes is
indicated in the resolutions of the General Assembly of the United
Nations (see, for example, resolution 3074 (XXVIII), para. 1), the Draft
Code of Crimes against the peace and Security of Mankind adopted by
the International Law Commission in 1996 (Art. 9), and in numerous
calls by the international community to combat impunity (see, for
example, the preamble of the Statute of the ICC, 4th‑6th consideranda,
the Constitutive Act of the African Union, Article 4 (c), and various
Security Council resolutions) (ICJ, 2009a, p. 13).14
As for the burden of proof demanded by the Court in order to establish the
existence of a norm of customary character, it will depend upon the Kingdom of
Belgium—that claims the existence of a customary norm being breached by
Senegal—to prove that both opinio juris exists and that state practice is general
enough so as to configure a customary obligation capable of being breached.15
2.4.7. OMISSION ON THE PART OF SENEGAL?
The International Law Commission Articles on State Responsibility for
International Wrongful Acts (hereinafter ILC Draft Articles on State Responsibility)
provides that:
12
According to the Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment,
although there is a provision for treaty-based universal jurisdiction under CAT, states have been cautious
in exercising such right (UNHRC, 2007).
13
For more on the coexistence of customary and treaty norms, see the International Court of Justice’s
reasoning in Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA) (ICJ, 1986).
According to the Court, although there may be a preexistent norm of a customary character prior to a
norm codified in treaty, they both coexist, binding all states at hand in spite of them being signatories of
said convention (ICJ, 1986).
14
For example, see UNSC resolutions 1318 (2000), 1325 (2000) and 1820 (2008) (UNSC, 2000a; 2000b; 2008).
15
On the burden of proof regarding custom, see The formation of Customary International Law, Maurice H.
Mendelson. Recueil de Cours, Hague (1998).
99
There is an internationally wrongful act of a State when conduct
consisting of an action or omission: (a) is attributable to the State
under international law; and (b) constitutes a breach of an
international obligation of the State (ILC, 2001, p. 34).
International Court of Justice’s perhaps most famous acknowledgment of breach
of obligation by omission in the 1980 Diplomatic and Consular Staff in Teheran, and it
came to the conclusion that a state government’s inaction, in that case Iran’s, would
entail its international responsibility.16 Another great example of that is the Court’s
responsibility attribution of Albania in the Corfu Channel case for knowing (or
needing to know) of the placing of mines in the Channel that damaged UK vessels.
In order to attribute responsibility, the formulae utilized by the ICJ—and often
cited in its jurisprudence—is that of 1) a damage caused to a state 2) by an act or
omission 3) attributable to a first state by a causal nexus. A faute, or an intent to cause
harm, is in general not necessary in order for International Responsibility to be
engaged (BROWNLIE, 2006).
2.5. LEGAL PRECEDENTS
2.5.1. EX-PARTE PINOCHET CASE
In the Ex-Parte Pinochet case, the former Head of State of Chile—in office until
his resignation in 1990—had been visiting the United Kingdom for medical
treatment in 1998, when Spain issued a request for his extradition in order to face
charges for torture in the Spanish courts. The Divisional Court, considering that he
enjoyed immunity from prosecution as a former head of state, invalidated the
provisional warrant for the applicant's arrest issued in response to the extradition
request. When this decision was appealed to the House of Lords, it held, by six votes
to one, that the appeal should be allowed, permitting the extradition (UK, 2000).
The House of Lords concluded that, due to the jus cogens nature of the
international crime of torture, recognized in the Furundzija case (ICTY, 1998), the
establishment of universal jurisdiction is justified, as it was provided for in the UN
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment of 1984 (UK, 2000). Said convention also required all member states to
outlaw torture (UNGA, 1984). Thus, the argument that Senator Pinochet was entitled
to immunity rationae materiae because the organization of state torture should be
considered as part of his official functions as head of state was rejected by the
judicial organ. It was reasoned that “if the implementation of a torture regime is a
public function giving rise to immunity ratione materiae, this produces bizarre
results” (UK, 2000), such as a former head of state escaping liability for the crime of
torture—a crime whose description states that must be committed “by or with the
acquiescence of a public official or other person acting in an official capacity”
(UNGA, 1984, Art. 1, §1)—, while those who carried out his orders being liable. For
the aforementioned reasons, the House of Lords considered that Senator Pinochet,
when allegedly organizing and authorizing torture, was not acting in any capacity
which might give rise to immunity rationae materiae, since: (a) such actions are
16
See also the Commentary to the Article 2 provided in the ILC (2001).
100
contrary to international law; (b) Chile, as a signatory of the Torture Convention,
had agreed to outlaw such conduct; and (c) Chile had agreed that all other member
states were to have jurisdiction over official torture (UK, 2000).
2.5.2. ARREST WARRANT CASE
In the Arrest Warrant case, the Democratic Republic of the Congo filed, on 17
October 2000, an application against the Kingdom of Belgium, requesting the Court
to annul an arrest warrant issued by a Belgian judge against the Congo’s Minister of
Foreign Affairs—Mr. Abdulaye Yerodia Ndombasi—under the motif of alleged serious
violations of international humanitarian law. The alleged crimes were committed by
means of speeches made by Mr. Ndombasi that incited racial hatred. The accused
was not in Belgium territory at the time of the issuing of the warrant and was in
office as the Congolese Minister for Foreign Affairs. No Belgian national was a victim
of the alleged offences, nor was there any link between Belgium and the accused.
The Congo contended that Belgium’s conduct violated both “the principle that a
State may not exercise its authority on the territory of another State” and “the
principle of sovereign equality among all Members of the United Nations” (ICJ,
2002a, §1). The Applicant argued also that Belgium’s non-recognition of the
immunity of a Minister in office constituted an infringement to the rule of
customary international law concerning the inviolability and immunity from
criminal process of incumbent foreign ministers (ICJ, 2002a, §10).
The Court upheld the Congo’s immunity claim, by 13 votes to 3, having, however,
decided not to analyze the matter of Belgium’s universal jurisdiction (ICJ, 2002a, Art.
3). The Court acknowledged as firmly established in international customary law the
immunities from jurisdiction in other States enjoyed by Ministers for Foreign
Affairs, as well as other holders of high-ranking office in a State (ICJ, 2002a, §51).
Such immunities, however, were held to exist in order to “ensure the effective
performance of their functions on behalf of their respective State”, rather than to
their “personal benefit” (ICJ, 2002a, §53). In relation to Ministers of Foreign Affairs,
the Court reasoned that their functions are of such nature that, throughout the
duration of his office, he ought to, when abroad, enjoy full immunity from criminal
prosecution, since if a Minister of Foreign Affairs is arrested, he is consequently
prevented of exercising the functions of his office (ICJ, 2002a, §54–55).
Finally, the Court, through its analysis of state practice, has failed to recognized
the existence under customary international law of any exception to the immunity
from criminal jurisdictional and inviolability enjoyed by Ministers of Foreign Affairs
in the case of alleged war crimes or crimes against humanity (ICJ, 2002a, §58).
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3. SUBMISSIONS
The Kingdom of Belgium requests this Court to adjudge and declare that:
a)
the Court has jurisdiction to entertain the dispute between the Kingdom of
Belgium and the Republic of Senegal regarding Senegal’s compliance with
its obligation to prosecute Mr. H. Habré or to extradite him to Belgium for
the purposes of criminal proceedings;
b)
the Republic of Senegal has the obligation of bringing criminal proceedings
against Mr. Habré for acts including crimes of torture and crimes against
humanity which he allegedly engaged in either as perpetrator, coperpetrator or accomplice;
c)
should the prosecution of Mr. Habré fail, the Republic of Senegal is obliged
to extradite him to the Kingdom of Belgium so that he can answer for these
crimes before the Belgian courts.
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TOPIC B: Application of the Interim Accord of 13 September 1995 (the
former Yugoslav Republic of Macedonia v. Greece)
Luíza Leão Soares Pereira, Mariana Camargo Contessa and Mariana Bom
1. INTRODUCTION
The Former Yugoslav Republic of Macedonia (hereinafter FYROM) became
independent from the former Yugoslav Federation on September 8, 1991, as the
result of a voting of its citizens. A new constitution was adopted on November 17,
1991.
On December 19, 1991, FYROM adopted a declaration in order to seek wider
international recognition as a sovereign and independent State. The Hellenic
Republic (hereinafter, Greece), however, has refused to recognize FYROM under the
name referred to in its new Constitution, since Greece considered that the new
denomination implied territorial aspirations.
During the years of 1992 and 1993, FYROM had its independent statehood
recognized by a number of States, not including Greece. On April 8, 1993, it became a
member of the United Nations. Nonetheless, according to the Security Council
Resolution 817, due to the dispute concerning the denomination of the Applicant, it
was to be referred to by the United Nations as “the Former Yugoslav Republic of
Macedonia” until the settlement of the difference.
On September 13, 1995, the FYROM and Greece signed an agreement—the
Interim Accord—which provided for the establishment of diplomatic relations
between them. Following the adoption of the Interim Accord, FYROM was granted
membership of a number of international and regional organizations, such as the
Council of Europe and the World Trade Organization. These memberships were
requested by FYROM under the new denomination stated in its constitution, on the
understanding that it would be referred to as state in the UNSC Resolution 817
(UNSC, 1993).
In 1995, FYROM also became a member to NATO’s Partnership for Peace under
the designation of “the former Yugoslav Republic of Macedonia”. However, it could
not proceed to gain full NATO membership, since on April 3, 2008, Greece, as a
member of NATO, acted against it (and approval of NATO membership requires the
consent of all existing members).
In light of the aforementioned events, on November 17, 2008, FYROM filed an
application against the Hellenic Republic before the International Court of Justice on
the grounds that “the Respondent’s actions to prevent the Applicant from
proceeding to be invited to join NATO, in clear violation of its obligations under the
Interim Accord.” (ICJ, 2008, p. 14, Art.20).
By the Application, FYROM requested the Court:
103
to adjudge and declare that the Respondent, through its State organs
and agents, has violated its obligations under Article 11, paragraph 1,
of the Interim Accord; to order that the Respondent immediately take
all necessary steps to comply with its obligations under Article 11,
paragraph 1, of the Interim Accord, and to cease and desist from
objecting in any way, whether directly or indirectly, to the Applicant’s
membership of the North Atlantic Treaty Organization and/or of any
other “international, multilateral and regional organizations and
institution” of which the Respondent is a member, in circumstances
where the Applicant is to be referred to in such organizations or
institutions by the designation provided for in paragraph 2 of United
Nations Security Council resolution 817 (1993) (ICJ, 2008, p. 16, Art. 23).
2.1. MACEDONIA’S ALLEGATIONS
2.1.1. JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE
According to the Macedonian Application, the International Court of Justice has
jurisdiction to address the present case under Article 36(1) of the Court’s statute and
under Article 21, paragraph 2, of the Interim Accord of 1995 1, all in accordance with
Article 40(1) of the Statute of the Court and Article 38 of the Rules of the Court.
Thus, the Applicant contends that the present case concerns only the dispute
that has arisen between the two States “concerning the interpretation or
implementation of this Interim Accord” (ICJ, 2008, p. 36, Art.21, §2), not involving
the existing divergence about the Applicant’s name, as referred to in Article 5(1) of
the 1995 Interim Accord, which was expressly excluded from Article 21(1).
2.1.2. AS TO THE GREEK VIOLATION OF THE INTERIM ACCORD
The Applicant claims that the Interim Accord is still in force and that it was
signed with the scope to help the establishment of diplomatic relations between the
Parties, and to support their future cooperation, notwithstanding the continuing
difference concerning the Applicant’s name. This purpose should be considered in
the interpretation of the agreement, as it is provided by the Vienna Convention on
the Law of Treaties of 1969 (VC, 1969). Moreover, the Applicant requests the
observance to the pacta sunt servanda principle.
In this context, Article 11(1) would had established towards Greece a firm and
unconditional general obligation to not object the Applicant’s membership in
organizations or institutions of which the Respondent is a member. For this reason,
FYROM stressed in its memorial that the mentioned Article comprises a broad
objective, for (I) it is applicable to all international, multinational and regional
organizations, and (II) “The obligation encompasses any implicit or explicit act or
expression of disapproval or opposition in word or deed to the Applicant’s
application to or membership of an organization or institution” (ICJ, 2009, p. 81).
1
“Any difference or dispute that arises between the Parties concerning the interpretation or
implementation of this Interim Accord may be submitted by either of them to the International Court of
Justice, except for the difference referred to in Article 5, paragraph 1.” (UN, 1995, p. 10, Art.21, §2).
104
The only exception to this norm would be engaged solely when the Applicant’s is
to be referred differently than “the former Yugoslav Republic of Macedonia”. In this
matter, the Applicant argues that its actions were consistent with this rule, since
this would be just a “(…) provisional descriptive designation referring to the State’s
previous status in order for it to be identifiable within the UN, pending resolution of
the dispute over its name” (ICJ, 2009, p. 111).
In conclusion, this denomination, which was agreed in paragraph 2 of the UNSC
Resolution 817 (UNSC, 1993), did not require the Applicant to call itself in this
manner, and, so, the Applicant remained using its constitutional name in its official
documents. However, when seeking to join NATO, the Applicant agreed to be
recalled by the provisional name of “The Former Yugoslav Republic of Macedonia”.
2.2. GREECE’S ALLEGATIONS
2.2.1. AS TO THE INTERNATIONAL COURT OF JUSTICE ABSENCE OF JURISDICTION
2.2.1.1. AS TO THE ATTEMPT TO ADJUDICATE THE “NAME ISSUE” BEFORE THE COURT
The Respondent argues that, although the Article 21(1) of the Interim Accord
establishes that any dispute or controversy concerning the interpretation of the
agreement between the Parties could be resolved before the International Court of
Justice, the mentioned Article also provides a clear exception when the issue
concern Article 5 (1), which prescribes:
The Parties agree to continue negotiations under the auspices of the
Secretary-General of the United Nations pursuant to Security Council
resolution 845 (1993) with a view to reaching agreement on the
difference described in that resolution and in Security Council
resolution 817 (1993) (UN, 1995, p. 5, Art.5, §1).
The divergence described in this Resolution is the State’s name quarrel, which, in
the Security Council’s words, should be resolved in order to maintain peace in the
region (UNSC, 1993, 3rd considerandum).
In this subject, the Respondent defends that the Applicant aims to hold before
the International Court of Justice a case concerning the “name issue”, which was
expressly excluded by the Interim Accord in the exception provided by article 21(1).
2.2.1.2. AS TO THE EXCLUSION OF THE PRESENT DISPUTE BY ARTICLE 22 OF THE INTERIM ACCORD
Article 22 of the Interim Accord ascertains the follow:
This Interim Accord is not directed against any other State or entity
and it does not infringe on the rights and duties resulting from
bilateral and multilateral agreements already in force that the Parties
have concluded with other States or international organizations (UN,
1995, p. 10, Art. 22).
Therefore, the Respondent argues that this Article prescribes an important
exception to both the jurisdiction and merits of the case, for it concedes that Greece
has prior rights and obligations to bilateral and multilateral agreements signed
before the Interim Accord. As a result, the obligations acknowledged before the
105
Interim Accord are super-ordinate in relation to obligations provided by the Accord
itself.
In the present case, Greece recognized its obligations towards NATO before the
Interim Accord, and, by expressed disposition of this Accord, Article 11(1) cannot
derogate such obligations, since an international organization as NATO requires the
compliance of the States Parties to its international legal responsibilities concerning
it rights and duties in the membership process towards the other members and to
the organization itself.
2.2.1.3. AS TO THE INTERNATIONAL COURT OF JUSTICE ABSENCE OF JURISDICTION TO DETERMINE
MEMBERSHIP TO NATO
The Respondent also asserts that the Application is de facto directed against
NATO, an international organization that is not submitted to the Court’s
jurisdiction. In Greece’s point of view, the refusal to invite the Applicant to join the
organization is not attributable to itself, but to a collective decision taken
unanimously by the Heads of State and Government of the NATO members.
Moreover, Greece recalls that there is no doubt that international organizations
have distinct personalities from its members, being widely known that NATO is an
international organization with a proper legal personality. The decision to admit a
new Party taken at the summit, as it was the case with the Bucharest declaration, is
made by the North Atlantic Council (NAC), its supreme body, and it is implemented
by NAC’s subordinate committees. It concludes, at last, that the Respondent had no
individual role play in the decision of April 3, 2008, and that it cannot be held
responsible for a decision taken by the organization, mentioning the “veil effect”,
which prevents a State to be held responsible for a decision taken in a deliberate
process of an international organization.
2.2.2. AS TO THE CONSISTENCE OF THE GREEK CONDUCT TO THE INTERIM ACCORD
According to the counter-memorial, the scope of the Interim Accord is to
provide a protective framework, by establishing a provisional name to the
Applicant, while a final agreement is not settled (ICJ, 2010a). In this context, a
breach to this objective would frustrate the very goal of the Interim Accord.
Accordingly, the obligation prescribed by Article 11(1) of the agreement is only
to not object the membership of the Applicant to international, multinational or
regional organizations or institutions and not to grant the success of the admission;
mainly, if it is considered that NATO is an organization with complex access process.
On the other hand, if the Applicant refuses to be referred as “the former Yugoslav
Republic of Macedonia”, then the obligation prescribed ceases to produce effects. As
a conditional right, the Respondent understands that it has a margin of appreciation
to determine whether this condition remains.
Furthermore, the Respondent points out that Article 11(1) must be read in
accordance with Article 22 of the Interim Accord. As it was sustained before, due to
the mentioned Article, prior international obligations and rights accepted by the
Respondent were not precluded by the advent of the Interim Accord. In this sense,
Greece would be entitled to point out deficiencies in the Applicant’s conduct, which
106
could lead it to an ineligible status to receive an invitation to accede the alliance, as
it is its right as a member of NATO. Also, since NATO is a consensus organization,
Greece could not be held responsible for the organization’s decisions.
2.2.3. AS TO THE APPLICANT’S VIOLATION TO THE INTERIM ACCORD
In addition to the allegation that Greece’s actions were consistent with the
Interim Accord, the Respondent contends that it was the Applicant which reiterated
manifestations of intentional violation of the Interim Accord and that such actions
would provide ample justification to take measures that, otherwise, could be
inconsistent to the Interim Accord. In this matter, the Respondent evokes the
Applicant’s affirmation that it had never stopped using its Constitutional name in its
official documents and, then, concludes that Article 11(1) imposes to the Applicant
an obligation to use, at the international level, the provisional name, in accordance
with the UNSC resolution 817. So, the Respondent claims that, even if the Court
understands that the Respondent did object the Applicant’s invitation to join NATO,
it would be a lawful application of the exception provided by paragraph 1 of Article
11.
For this reason, the Hellenic Republic argues that the Interim Accord is
synallagmatic, requiring a quid pro quo exchange of rights and obligations, so that
this rights and duties are interdependent, especially when concerning the Article
11(1) provision (ICJ, 2010a). And, in this framework, its actions would then be
protected by the exceptio inadimpleti contractus principle, which is not limited only to
material breaches, and allows the party to an agreement not to perform its
conventional duties if the other party refuses to comply with the obligations agreed.
In the present case, the Respondent affirms that the conditions to apply the
mentioned principle are met, because of the Applicant’s constant material violations
to the provisions of the Interim Accord, in view that there was no observance to
Articles 5 (obligation to act in good faith so that the negotiations about the “name
issue” can reach a final conclusion), 6 (prohibition of interference in Internal
Affairs), 7 (1) (prohibition of hostile activities and propaganda), 7(2) (prohibition to
use “Vergina Sun” symbol by the Applicant), 7(3) (prohibition of appropriation of
Greeks historical and cultural symbols), and, finally, 11 (obligation to be referred to
as “the former Yugoslav Republic of Macedonia” in the International level) (UN,
1995).
At last, Greece concludes that even if there was a disobedience to Article 11(1) by
the Respondent, the wrongfulness of such conduct was precluded by the Applicant’s
continuous violations the Interim Accord.
2.3. ORDER OF 12 MARCH 2010
In the order of March 12, 2010, the International Court of Justice, under the
request of the Applicant, authorized the Former Yugoslav Republic of Macedonia to
submit a reply to the Greek counter-memorial, as well as submission of a rejoinder
by Greece.
107
2.4. REPLY TO THE COUNTER-MEMORIAL
The reply presented by the Applicant reaffirms that the only reason why the
Respondent objected the invitation of the Applicant to accede to NATO was the
divergence in relation to the Applicant’s name, even though the Applicant was
referred to in NATO by its provisional name (ICJ, 2010b). Moreover, it is stressed that
NATO’s consensus-based decision-making procedure does not exempt the
Respondent from its obligations towards the Applicant (ICJ, 2010b).
Subsequently, the jurisdiction of the Court is defended under the arguments that
(I) the solution of the present case does not require the Court to address the merits
of the “name question”, (II) article 22 does not refer to jurisdiction issues and, in any
case, Greece did not explained which right or duty before NATO obliged the
objection to the invitation of the Applicant, and (III) the Court is not been asked to
address NATO’s conduct, but the Respondent’s (ICJ, 2010b).
In relation to the merits of the case, the Applicant informs that, before April 3,
2008, Greece had never demonstrated its concern that the Applicant’s conduct
would not be consistent with the provisions of the Interim Accord (ICJ, 2010b). In
addition, the Applicant refuses to accept the exceptio inadimpleti contractus principle
as a justification to the Greek’s disregard to Article 11(1), for (I) it is a new and not
widely accepted doctrine, and (II) the only possible exception to comply with the
Interim Accord obligations would be the prescriptions of Article 60 of 1969 Vienna
Convention, since the exceptio inadimpleti contractus principle would not integrate the
doctrine about State responsibility (ICJ, 2010b). Moreover, Article 11(1) would only
provide with a unilateral obligation of Greece, leaving the exceptio inadimpleti
contractus argument baseless (ICJ, 2010b).
2.5. GREECE’S REJOINDER
The rejoinder presented by the Respondent, alongside with again rejecting the
Court’s jurisdiction over the matter, restates that the Interim Accord is a
synallagmatic agreement (ICJ, 2010c). The Respondent also reiterates that it has
never objected the membership of the Applicant, but that it does not have the
obligation to guarantee the success of the admission of the Applicant to the NATO,
under Article 11(1), as well that the decision to not invite the Applicant to join the
organization is attributable solely to NATO (ICJ, 2010c).
Greece also repeats that the Applicant is in violation of Article 5(1) of the Interim
Accord, because it would be trying to solve the question of its name unilaterally by
adjudicating the matter, contravening the mentioned agreement (ICJ, 2010c).
Additionally, the rejoinder remembers that the Applicant disrespected Articles 6(2)
and 7 (1)(2)(3) of the Interim Accord (ICJ, 2010c).
As a final point, it is mentioned that the exceptio inadimpleti contractus principle
does not require any prior notification to be used and it is applicable to the present
matter insofar and as long as the Applicant does not comply with its own obligations
under the Interim Accord with the due reciprocity towards the Greek commitment
(ICJ, 2010c). Lastly, Greece states that remains committed to the Interim Accord and
that still aspires the normalization of the relationship between the parties, which
demands a final solution to the named dispute (ICJ, 2010c).
108
2.6. LEGAL THESIS INVOLVED IN THE MERITS
2.6.1. COMPETENCE TO ADJUDGE A CASE OF POLITICAL NATURE
The article 36(2) of the statute of the International Court of Justice establishes
that:
The states parties to the present Statute may at any time declare that
they recognize as compulsory ipso facto and without special
agreement, in relation to any other state accepting the same
obligation, the jurisdiction of the Court in all legal disputes
concerning: a. the interpretation of a treaty; b. any question of
international law; c. the existence of any fact which, if established,
would constitute a breach of an international obligation; d. the nature
or extent of the reparation to be made for the breach of an
international obligation (IC, 1945, Art. 36, §2, emphasis added).
Due to this provision, it is understood that the Court is competent “to hear and
determine legal questions, but not political questions” (FITZMAURICE, 1986), that is,
the Court should not refer to political issues, since there are other organs competent
to deal with this subject, such as the Security Council (SCHRÖDER, 1995): This was
precisely one of the United States’ defense thesis in the Nicaragua case (ICJ, 1984a).
Nevertheless, in that same case, the Court refused such argument and stressed that
“[t]he [Security] Council has functions of a political nature assigned to it, whereas
the Court exercises purely judicial functions. Both organs can therefore perform
their separate but complementary functions with respect to the same events” (ICJ,
1984b, p. 435, §95). As a result, the Court established that there must be more than
mere political implications to obstruct its competence to adjudge a case, but a real
political nature (ICJ, 1984b, p. 435, §96).
The referred position was repeatedly reiterated by the Court in many cases,2
such as the Nuclear Weapons case, when it stressed that: “[t]he fact that this question
also has political aspects, as, in the nature of things, is the case with so many
questions which arise in international life, does not suffice to deprive it of its
character as a ‘legal question’” (ICJ, 1996, p. 234, §13), and in the Certain Expenses of
UN case, which established that the interpretation of treaty provision is an
essentially judicial task (ICJ, 1962, p. 155). On the subject, Sir Gerald Fiztmaurice,
former judge of the International Court of Justice, recalls us of the fact that,
irrespective of the reasons for which the interpretation was requested, the problem
of treaty interpretation is indeed a legal question (FITZMAURICE, 1986).
Finally, it is the position adopted by Judge Cançado Trindade that the review of
the obligations imposed by international law towards States, as well as the legality
of its conduct is, in essence, a judicial matter (ICJ, 2010d). Moreover, he also argues
that, even if it is understood that this is not the case under analysis, the distinction
between “political” and “legal” issues should be overruled, for there is “[n]o
questions which, by their ‘intrinsic nature’, may be termed as essentially ‘legal’ or
‘political’; such qualifications pertain rather to the means of resolution of the
questions at issue” (ICJ, 2010d, p. 5).
2
About this matter, see also ICJ (1973).
109
2.6.2. OBLIGATIONS OF THE PARTIES REGARDING THE TREATY
The interim accord was signed in New York on September 13, 1995, between
Greece, referred as “the party of the first part”, and FYROM, referred as the “party
of the second part” (UN, 1993). This treaty aimed to establish good diplomatic
relations between both States and to regulate their interaction with each other. So
as to recall the parties’ allegations regarding the treaty, see above, under the parties
allegations.
2.6.3. TREATY LAW
Treaties are legal instruments able to regulate de relationship between two or
more subjects of International Law. In fact, they are one of the most important
normative instruments of International Law, being expressly prescribed as a source
of law by the Court’s Statute in article 38, paragraph 1 (STEIN, 1995). The Vienna
Convention of 1969 on the Law of Treaties 3 (hereinafter VCLT) sets the follow
definition in its article 2(1)(a): “[‘t]reaty’ means an international agreement
concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments and
whatever its particular designation” (VC, 1969, p. 9, Art. 21, §1, (a)).
2.6.3.1. THE PACTA SUNT SERVANDA PRINCIPLE
One of the most important standards of International Law concerning the
chapter of Treaty Law is the pacta sunt servanda principle. It is widely accepted as a
general principle of law, stipulating that every treaty is binding upon the parties
that have signed it and, therefore, shall be complied with (FITZMAURICE, 2006). To
be exact, this rule asserts precisely the “[d]uty of all states to carry out their treaty
obligations in good faith” (DUNOFF, RATNER & WIPPMAN, 2006), as well as a
presumption of continuance of the treaties’ validity and normative force if they
were not expressly terminated (BROWNLIE, 2008, p. 620). Indeed, the Court, when
rendering its judgment to the Gabčíkovo-Nagymaros case, recognized this principle,
and emphasized that:
[i]t is for the Parties themselves to find an agreed solution that takes
account of the objectives of the Treaty, which must be pursued in a
joint and integrated way (…) what is required in the present case by
the rule pacta sunt servanda, as reflected in article 26 of the Vienna
Convention of 1969 on the Law of treaties is that the Parties find an
agreed solution within the cooperative context of the Treaty (ICJ, 1997,
p. 78, §141–142).
In this same case, the Court also affirmed that the wrongful conduct of one (or
even both) parties did not derogate the application of such principle, since it “[d]id
not bring the Treaty to an end nor justify its termination” (ICJ, 1997, p. 68, §114).
The Court, moreover, stressed that:
3
The Vienna Convention on the Law of Treaties was elaborated by the International Law Commission and
was opened for signatures on April 23, 1969. More than just a treaty, the VCLT carries within its
provisions some customary rules that are applicable even to those who are not direct subjects to it, such
as international organizations. For more information, see Fitzmaurice (2006).
110
[t]he Court would set a precedent with disturbing implications for
treaty relations and the integrity of the rule pacta sunt servanda if it
were to conclude that a treaty in force between States, which the
parties have implemented in considerable measure and at great cost
over a period of years, might be unilaterally set aside on grounds of
reciprocal noncompliance (ICJ, 1997, p. 68, §114).
As already mentioned above, the VCLT also expressly prescribes this principle in
its article 26: “Every treaty in force is binding upon the parties to it and must be
performed by them in good faith.” (VC, 1969, p. 11, Art. 26).
2.6.3.2. TREATY INTERPRETATION
There are many schools defending different ways to interpret a treaty, each one
pursuing a different hermeneutic purpose (RIS, 1991). The main theories about such
difficult task are explained in the subsequent sections.
2.6.3.2.1. THE INTENT SCHOOL
The first one to be mentioned is the Intent School, which defends that the first
duty of any interpreter is to define the aim of the parties when negotiating e treaty,
in a way that the treaty could be applied as the parties actually intended it to be. In
such task, the interpreter could rely on supplementary sources, for example, the
travaux préparatoires4 of the accord, even when the text seems to be unambiguous
(RIS, 1991). The mentioned resource is, nevertheless, criticized by scholars, such as
Sir Gerald Fiztmaurice, since (I) the words and expressions adopted by the text were
chosen exactly to give voice to the parties’ intentions, so there would be no need to
study the travaux préparatoires; and (II) many parties to the treaty can join the
agreement later, not participating on the elaboration of its preliminary drafts
(FITZMAURICE, 1986). Moreover, it is also appointed by the critics that any treaty is
structured in order to give voice to the parties’ intentions and, hence, it would be
only logical to presume that such aim would be already demonstrated by the text of
the treaty. In response to that, this theory recollects the possibility that the parties,
even when using the same terminology, in good faith, may have wished-for another
meaning to the text, perhaps due to idiomatic difficulties during the negotiations. In
such cases the most adequate way to interpret would be to restore the parties’ truly
aspirations (SCHAFFER, 1976).
2.6.3.2.2. THE TEXTUALIST SCHOOL
In the opposite site, there is the Textualist School which supports that the best
way to analyze the meaning of a treaty is by establishing the words naturally and
ordinarily significance. As a result, the priority of such thesis is to interpret the
actual meaning of the text, disregarding the initial intention of the parties. In this
context, the travaux préparatoires can be consulted, but only in order to clarify and
confirm the use of the words chosen by the parties (RIS, 1991, p.114–115), since the
words choice is, in fact, the actual intention of the parties. In effect, this
4
The travaux préparatoire consists in the written record of the treaty’s negotiation process, such as
memoranda, minutes of conferences and drafts (RIS, 1991).
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hermeneutic school aims to be more scientific than the first mentioned (SCHAFFER,
1976). This form of interpretation was preferred by the International Court of Justice
in relation to the precedent school in several occasions, albeit it has not completely
overlooked the relevance of the parties’ intentions in certain opportunities
(FITZMAURICE, 1986, p. 338 and 343; BROWNLIE, 2008, p. 631), but this approach was
only accepted when the textualist method led to an unreasonable result (RIS, 1991,
p.130).
2.6.3.2.3. THE TELEOLOGICAL SCHOOL
The doctrine that emphases the purpose of the treaty in the interpretation
process is the Teleological School. The theory tries to determine which was the scope
of the agreement and, consequently, considers the historical background of the
treaty of great importance, as well as the context in which such accord was
developed (RIS, 1991). Then, once the main goal of the treaty is identified, the text is
interpreted the in manner that will guarantee the realization of such object
(SCHAFFER, 1976). According to Sir Gerald Fitzmaurice, this approach is “[m]ore
especially connected with the general multilateral convention of the ‘normative’,
and, particularly, of the sociological or humanitarian type”, because it would be the
most adequate hermeneutic method to use when analyzing international
organizations’ charters in general (FITZMAURICE, 1986, p. 204). Indeed, the ICJ has
adopted these principles when dealing with advisory opinions concerning powers of
United Nations’ organs, developing the theory of implied powers5 (BROWNLIE, 2008).
Sir Gerald Fitzmaurice, however, appoints the main flaw of the school by saying that
this method:
[v]irtually denies altogether the direct relevance of intentions as such:
whatever the intentions of the parties or some of them may have been,
the convention as framed has certain object or purpose, and the task
of the tribunal is to ascertain and establish this object or purpose, and
then to interpret the treaty so as to give effect to it (FITZMAURICE,
1986, p. 205).
A more recent version of the mentioned doctrine also understands that the
object of a convention can be very dynamic. Accordingly, the interpretation should
not only focus in the agreements’ scope when it was developed, but in the present
goal that has appeared through the passage of time. This new approach,
nonetheless, has not been admitted by the Court as interpretative process, since it
implies a quasi-legislative function (FITZMAURICE, 1986). Other Courts, however,
such as the European Court of Human Rights has admitted an “evolutionary”
hermeneutic method when applying the European Convention on Human Rights
(BROWNLIE, 2008).
2.6.3.2.4. THE VIENNA CONVENTION ON THE LAW OF TREATIES APPROACH
The International Law Commission, when formulating the VCLT, adopted as
major inspiration to the interpretation’s clause the work of Sir Gerald Fiztmaurice,
5
See ICJ’s Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations (ICJ, 1949).
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special rapporteur for the Commission, who had organized the major principles
about this theme based on the International Court of Justice jurisprudence.
Therefore, were admitted as primary principles of treaty interpretation: (I) the
principle of textuality, that provides that the treaty must be interpreted in
accordance to the words and texts that are expressly established in its articles; (II)
the principle of the natural and ordinary meaning, which defends that the words
and terms of the agreement must be understood in its most common and natural
sense; and (III) principle of integration, that supports that, while interpreting, the
treaty provisions must be considered as a whole and, consequently, chapters or
articles cannot be interpreted out of context (FITZMAURICE, 2006). These
hermeneutic standards were prescribed in the article 31 of the convention, as
follows:
General rule of interpretation[:] 1. A treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and
purpose. 2. The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its preamble
and annexes: (a) any agreement relating to the treaty which was made
between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in
connection with the conclusion of the treaty and accepted by the
other parties as an instrument related to the treaty. 3. There shall be
taken into account, together with the context: (a) any subsequent
agreement between the parties regarding the interpretation of the
treaty or the application of its provisions; (b) any subsequent practice
in the application of the treaty which establishes the agreement of the
parties regarding its interpretation; (c) any relevant rules of
international law applicable in the relations between the parties. 4. A
special meaning shall be given to a term if it is established that the
parties so intended (VC, 1969, p. 12–13, Art.31, §1–3, emphasis in the
original).
The Commission admitted the following subsidiary principles as well: (I) the
principle of effectiveness, which determines that the interpretation must be focused
in the apparent purpose or object of the agreement; (II) the principle of subsequent
practice, according to which the correct interpretation of a treaty can be inferred
from the parties subsequent conduct; and, lastly, (III) the principle of
contemporaneity, that establishes that the terms of the treaty shall be understood
in the light of the current linguistic usage, but also considering the original meaning
of the words (SCHAFFER, 1976, p. 137–138).
As result, the final text of the article concerning treaty supplementary sources of
interpretation was:
Supplementary means of interpretation[:] Recourse may be had to
supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to article
31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a
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result which is manifestly absurd or unreasonable (VC, 1969, emphasis
in the original).
In conclusion, the Convention’s dispositions about interpretation upheld the
most modern views about the subject, giving space to textual, intention and
teleological approaches (CASSESE, 2005, p. 179). Nevertheless, it must be said that, in
relation to Article’s 31 first item, mentioned above, Malgosia Fitzmaurice (2006)
recollects that this clause is, in fact, an international customary law already
recognized as such by many judgments of the International Court of Justice.
Furthermore, this first provision reflects a good faith requirement to the
interpretation which is the very essence of the pacta sunt servanda principle
(FITZMAURICE, 2006, p. 199).
On the other hand, regarding the hermeneutic process in accordance to the
treaty’s “object and purpose”, it is important to note that this clause is undirected
connected to the principle of effectiveness. Thus, if there are two possible
interpretations and one of these does not enable the treaty to produce appropriate
effects, this interpretation should be disregarded. It is believed that each provision
was stipulated in order to achieve some goal or result, because it would be
unproductive to add meaningless clauses in a treaty (FITZMAURICE, 2006).
Nevertheless, the ICJ, most of the times, has subordinated this principle to the
failures of the textual approach, given that “[t]his may involve a judicial
implementation of purposes in a fashion not contemplated in fact by the parties”
(BROWNLIE, 2008, p. 635– 636).
2.6.3.2.5. MATERIAL BREACH OF A TREATY
It is admitted that one of the parties is entitled to terminate or to suspend the
application of an agreement if the other one has perpetrated a material breach
(BROWNLIE, 2008, p. 622). The VCLT itself prescribes that:
Termination or suspension of the operation of a treaty as a consequence of its
breach[:] 1. A material breach of a bilateral treaty by one of the parties
entitles the other to invoke the breach as a ground for terminating the
treaty or suspending its operation in whole or in part. 2. A material
breach of a multilateral treaty by one of the parties entitles: (a) the
other parties by unanimous agreement to suspend the operation of the
treaty in whole or in part or to terminate it either: (i) in the relations
between themselves and the defaulting State; or (ii) as between all the
parties; (b) a party specially affected by the breach to invoke it as a
ground for suspending the operation of the treaty in whole or in part
in the relations between itself and the defaulting State; (c) any party
other than the defaulting State to invoke the breach as a ground for
suspending the operation of the treaty in whole or in part with respect
to itself if the treaty is of such a character that a material breach of its
provisions by one party radically changes the position of every party
with respect to the further performance of its obligations under the
treaty. 3. A material breach of a treaty, for the purposes of this article,
consists in: (a) a repudiation of the treaty not sanctioned by the
present Convention; or (b) the violation of a provision essential to the
accomplishment of the object or purpose of the treaty. 4. The
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foregoing paragraphs are without prejudice to any provision in the
treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not
apply to provisions relating to the protection of the human person
contained in treaties of a humanitarian character, in particular to
provisions prohibiting any form of reprisals against persons protected
by such treaties (VC, 1969, p 20–21, Art. 60, §1–5, emphasis in the
original).
Nevertheless, the definition of what truly is a material breach remains vague. In
the Gabčíkovo-Nagymaros case, mentioned above, for example, the ICJ did not
recognize that the reciprocal noncompliance provides grounds for the termination
of a treaty (ICJ, 1997). In this sense, although a violation can allow the adoption of
countermeasures by the other party, it does not mean ipso facto that it constitutes a
material breach and that it permits the termination of the treaty.
2.6.4. REPARATION OVER TREATY’S BREACH
2.6.4.1. STATE RESPONSIBILITY
Initially, it must be noticed that the matter of existence of rights or obligations,
as well as the presence of material breach that consents the termination or
suspension of the treaty is a matter of treaty law. For this reason, the state
responsibility theory does not have legitimacy to determine the content or to
interpret the state’s obligations, but only acts after these obligations prescribed by
primary rules are defined and a breach by a State is identified, regulating, then, its
consequences (UNGA, 2003; FITZMAURICE, 2006; CRAWFORD; OLLESON, 2006, p.
457).
The international responsibility of a State requires the existence of an act or
omission that is attributable to a State under international law and that constitutes,
at the same time, a breach of its international obligations. There is not, however,
even in the present day, a biding international legal instrument about this subject.
The main source about this theme is the non-binding “Draft Articles on Responsibility
of States for Internationally wrongful acts”, which was developed by the International
Law Commission and approved by the United Nations General Assembly in 2001. The
Draft Articles contemplate the State Responsibility in a comprehensive way, and
even if not a biding instrument, it can be taken in account because of its soft law
character,6 and due to the fact that many of its provisions are indeed merely
codification of custom (BROWNLIE, 2008).
2.6.4.2. REPARATION
Once the State responsibility is engaged, the responsible State must provide
reparation to the injured one, as it was stated by the Permanent Court of
International Justice in the 1928 Chorzów Factory case:
6
Dinah Shelton defines soft law as “[a]ny international instrument other than treaty containing
principles, norms, standards, or other statements of expected behaviour.” (SHELTON, 2010. p.180).
Regarding this matter, Alan Boyle (2006) points out that, albeit ‘soft law’ norms are not biding per se, they
are frequently evidence of existing law, opinio iuris or a costumary international law under formation. The
wide acceptance of any ‘soft law’ instrument may legitimate certain conducts or even make the adoption
of contrary positions harder to sustain (BOYLE, 2006.p.142).
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[…] it is a principle of international law, and even a general conception
of law, that any breach of an engagement involves and obliga-tion to
make reparation. […] reparation is the indispensable complement of a
failure to apply a convention, and there is no necessity for this to be
stated in the conven-tion itself (PCIJ, 1928, p. 29).
Accordingly, reparation can be categorized in three distinct and not mutually
excluding forms: compensation, satisfaction and restitution:
Article 35 Restitution[:] A State responsible for an internationally
wrongful act is under an obligation to make restitution, that is, to reestablish the situation which existed before the wrongful act was
committed, provided and to the extent that restitution: (a) Is not
materially impossible; (b) Does not involve a burden out of all
proportion to the benefit deriving from restitution instead of
compensation. Article 36 Compensation 1. The State responsible for an
internationally wrongful act is under an obligation to compensate for
the damage caused thereby, insofar as such damage is not made good
by restitution. 2. The compensation shall cover any financially
assessable damage including loss of profits insofar as it is established.
Article 37 Satisfaction 1. The State responsible for an internationally
wrongful act is under an obligation to give satisfaction for the injury
caused by that act insofar as it cannot be made good by restitution or
compensation. 2. Satisfaction may consist in an acknowledgement of
the breach, an expression of regret, a formal apology or another
appropriate modality. 3. Satisfaction shall not be out of proportion to
the injury and may not take a form humiliating to the responsible
State (UNGA, 2001, Art.35–37, emphases in the original).
3. SUBMISSIONS
The Yugoslav Republic of Macedonia asks the Court to:
a)
declare that the Respondent, through its State organs and agents, has
violated its obligations under Article 11, paragraph 1, of the Interim Accord;
b)
order the Respondent to take all necessary steps to comply with its
obligations under Article 11, paragraph 1, of the Interim Accord, and to
cease and desist from objecting in any way, whether directly or indirectly,
to the Applicant’s membership of the North Atlantic Treaty Organization
and/or of any other “international, multilateral and regional organizations
and institutions” of which the Respondent is a member.
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Chapter 4
UNITED NATIONS
SECURITY COUNCIL
INTRODUCTION
The United Nations Security Council is the primary body of the organization in
maintaining international peace and security, as defined by the UN Charter. The
UNSC is formed by fifteen members, of which five are permanent and ten are
selected by the General Assembly for two year terms. The five permanent members
of the Security Council are the People’s Republic of China, France, the Russian
Federation, the United Kingdom of Great Britain and Northern Ireland and the
United States of America, and they hold what is commonly known as “veto power”.
That means that if any of these five members vote against a resolution or clause, for
instance, it will automatically fail.
The remaining 10 countries are elected by the General Assembly, which has
demonstrated through the years the tendency to elect five members from Asia and
Africa, one from Eastern Europe, two from Latin America and two from Western
Europe and other states. The sessions of 2011 will be composed of the following
States: Bosnia and Herzegovina, Brazil, China, Colombia, France, Gabon, Germany,
India, Lebanon, Nigeria, Portugal, the Russian Federation, South Africa, the United
Kingdom and the United States. The Presidency of the Council is held by its
members in turns of one calendar month each, and the order of the presidencies is
defined by the English alphabetical order of their names.
The key feature of the UNSC, which detaches it from other UN organs, is that it is
the only committee with the power to impose binding resolutions to all states. It is
also in the Council’s mandate the right to make use of force by authorizing military
and peacekeeping operations. However, the organ’s first action, when a complaint
related to a threat to peace if brought before it, is to recommend to the parties to try
and reach a peaceful solution. It may also help the ceasing of the dispute by
investigating or mediating the conflict if so needed. The Council has also ordered
ceasefires and imposed economic sanctions or collective military embargoes on
many occasions of armed combats. Moreover, the body has the power to nominate
Special Representatives or request the UN Secretary-General to designate a Special
Representative of its own to follow more closely any crisis that might emerge. At
last, the UNSC may recommend the suspension or expulsion, by the General
Assembly, of a Member State that continually violates the principles of the Charter.
This committee is, therefore, crucial to the peacekeeping objectives of the United
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Nations, and its relevance goes way beyond security and geopolitics, affecting also
the lives of the populations directly involved in the conflicts it strives to solve.
This year, UFRGSMUN’s UNSC proposes two very stimulating and pertinent,
albeit intricate, topics to be discussed. Both of them are of great relevance to the
international community, since they deal with self-determination, democracy
among other key issues of the international agenda. The first one invites the
delegates to consider the threats to international peace and security arising from
the situation in Côte d’Ivoire. The second topic handles with the situation in Libya, a
significant episode of the so-called Arab Spring.
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TOPIC A: The situation in Côte d’Ivoire
Isadora Loreto da Silveira, Alexandre Spohr, Luiza Olmedo, Josuá Gihad Soares
and Giulia Barão
1.1. THE COLONIAL PERIOD AND THE INDEPENDENCE
Côte d’Ivoire was originally made up of numerous isolated settlements; today it
represents more than sixty distinct tribes. In the 18 th century, the country was
invaded by two related groups: The Agnis, which occupied the southeast, and the
Baoules, which settled in the central region. Côte d’Ivoire’s main ethnic groups,
therefore, are historically defended from refugee populations, escaping pressures in
their own territories. In the 15th century, the country attracted both French and
Portuguese merchants that were in search of ivory and slaves. In the early precolonial period, however, because of the dense jungle vegetation and the lack of
natural harbors, large-scale socio-political organizations could not be created, and
the exploration of the area by Europeans was slowed.
France made its initial contact with Côte d’Ivoire in 1637, when missionaries
landed in the region, but these were limited. In 1842, as part of the general European
scramble for colonial possessions, the French government launched a policy of
intensive exploration of the West African coast, gradually extending their influence
along the coast and inland. In 1843–44, treaties were signed with regional kings,
placing their territories under a French protectorate. However, given its forbidding
coastline, there was little trade, and the military outposts were too hard to
maintain.
Disinterest on the part of the French government and losses in the FrancoPrussian War led the French to abandon their forts in West Africa. Only in 1885, the
Berlin Conference of European Powers, which established spheres of influence in
Africa for European countries, made France develop its presence in the African
continent. In 1886 France exercised direct control over the trading posts on the
Ivoirian coast and in 1893 Côte d’Ivoire officially became a French colony. The first
governor of French administrators named was Captain Binger. Initiating the
establishment of the region as a defined geographical entity he negotiated who
resisted French advance until he was beaten in 1898. Complete pacification,
however, was not accomplished until 1915.
The French have administered Côte d’Ivoire in a more direct, systematic style
than their British counterparts have done, who have preferred indirect rule. They
have regrouped or consolidated villages in an attempt to impose a uniform
administration throughout the country. The colonial power instituted a doctrine of
extreme political centralization in Côte d’Ivoire, with little room left for Ivoirian
participation. Until the period following World War II, governmental affairs in
French West Africa were administered from Paris and all Africans in Côte d’Ivoire
were officially French “subjects” without rights to citizenship or representation in
Africa or France. Inhabitants had no political rights and were under the rule of a
separate law system. The French demanded all of its subjects to submit to the forced
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labor on public works and colonial legal system allowed suspected criminals to be
imprisoned without trial. In 1937, a liberal French government came to power, and
allowed them to organize a trade union for the first time and also restricted the use
of the forced labor.
World War II profoundly affected all of French West Africa (Afrique Occidentale
Française—AOF) after the pro-Nazi Vichy regime took over the government of
France. Discrimination and forced labor were again permitted in Côte d’Ivoire. By
1944 sources of strong opposition to the French colonial administration had
emerged: the African Agricultural Union (Syndicat Agricole Africain—SAA), an antiVichy organization formed by Ivoirian planters, under the leadership of Felix
Houphouët-Boigny, which claimed for better prices for African products.
The results of World War II, have led to far-reaching governmental reforms in
colonial policies, demanded by the African elite. Owing to the loyalty that the
African “subjects” had exhibited during the war, France has formed the French
Union (political entity created by the French Fourth Republic to replace the old
French colonial system); has abolished various forms of forced labor; and has
granted African members rights of free speech, free association, free assembly and
political organization.
In 1946 the Lamine Guèye Law passed in the French parliament, granting French
citizenship to all people in the French Union. In the same year an alliance was
formed between the SAA and supporters of Félix Houphouet-Boigny, resulting in the
rise of the Parti Démocratique de Côte d’Ivoire (PDCI), the only political party in the
country that challenged French policies. The subsequent confrontation led to
violence and repression, making Boigny abandon radical politics in favor of practical
cooperation with French authorities.
Public confidence was regained by establishing friendly relations with the
colonial administration. In 1956 the Overseas Reform Act (Loi Cadre) transferred a
number of powers from Paris to elected territorial governments in French West
Africa. Aided by such strong political power, Houphouet-Boigny secured grants of
French aid for Côte d’Ivoire and attracted European business interests to the colony.
Having harmonized French policy with the political and commercial growth, Côte
d’Ivoire became peacefully independent in August 1960.
1.2. THE HOUPHOUËT-BOIGNY RULE
The political system that emerged in Côte d’Ivoire after its independence is
deeply rooted in the leadership of Félix Houphouët-Boigny, who became the first
president, and in the heritage of the French colonial rule based on the doctrine of
high political centralization (RIEHL, 2007). Parallel to his precedent inter-territorial
political activism, such as the representation of the Ivorian interests in the French
National Assembly form 1946 to 1959, his leading role in contact with the
metropolitan colony, helped him become Côte d’Ivoire’s first president in 1960 and
establish the political system that guaranteed his long and stable rule, that only
ended with his death, in 1993.
The elected National Assembly of Côte d’Ivoire, composed mainly by PDCI
members, adopted a republican Constitution. Based on democratic principles, it was
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formally meant to be a presidential system, with executive and legislative power
division and an independent judiciary. However, what actually rose was a one-party
system, where the PDCI, calling for national unity, managed to obtain almost
unanimous public support, controlling all government branches, under the sole
leadership of Felix Houphouët-Boigny. This man established an image of “Father of
the Nation” or the founding father of Côte d’Ivoire (ALMAS, 2007). Although
successively elected through democratic means, he relied his power on respect and
popularity maintained by mixing an appeasing strategy towards society conflicts
and autocratic rule when necessary, especially to neutralize opposition.
One of the main political pillars of his popular government was the ethnicbalancing policy (RIEHL, 2007). Côte d’Ivoire has ever since been a multi-ethnic
society and surrounded by the multi-ethnic societies of its neighboring countries.
From that point of view, it is even more surprising the stability and peace that
prevailed during Houphouët-Boigny rule. Himself a representative of one of the
ethnic families, he developed an open strategy towards immigration, extending to
them some citizenship rights and the policy that “the land belonged to the one who
worked it”. It attracted labor to Côte d’Ivoire agriculture—which main exports
remain cocoa, coffee and cotton—contributing to an impressive level of prosperity
and life standards comparing to the rest of the region. Internationally, his policy
was made favorably to the West and engaged in regional issues: Côte d’Ivoire joined
the UN in 1960 and held a constructive role in Africa, having president HouphouëtBoigny as a mediator to regional disputes. Therefore, Houphouët-Boigny’s political
and economic skills—from mild means as persuasion and appeasement to harsh
ones, as ethnic-balancing (RIEHL, 2007) and suppression of opponents—are widely
acknowledged as important factors explaining the political-social stability and the
economic vigor of the first two decades of Côte d’Ivoire’s existence.
From 1980 on, however, the status quo began to change. It started with an
economic crisis resulting of the steep fall in the international commodity prices. As
already stated, cocoa, coffee and cotton exports—as well as other primary
products—exports were the overriding economic sector; therefore, Côte d’Ivoire
suffered a huge decline in state revenues, followed by the stagnation of economic
growth and the alarming rise of foreign debt. The first attempt to solve the crisis
was the subscription to World Bank’s Structural Adjustment Program (SAP). It
comprised a wide range of macroeconomic reforms, aiming at the resumption of
economic growth.
By the end of the 1980s, however, the situation was even worse, which compelled
the government to take its own austere economic measures, such as forsaking the
price guarantee system and cutting by half the salaries of the teachers in all
education levels. The popular response came through impetuous and widespread
protests by students and workers, and the opposition, who enjoyed the opportunity
to demand democratic reforms—with the change to a multiparty system—and to call
for new elections. Adding to this internal social tension, a speech given by French
president François Miterrand, addressed to the African leaders at the Conférence de
Baule, in 1990, introducing the policy that the future allocation of aid would depend
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on political conditions forced Houphouët-Boigny to abandon one-party rule and
recognize the opposition parties in May 1990.
Côte d’Ivoire’s founding father died in 1993. As the next polls were scheduled for
1995, a power struggle began within PDCI between Boigny’s potential successors.
One was Henry Conan Bédié, speaker of the National Assembly, and the other,
Alassane Dramane Ouattara, Prime Minister. Bédié was the favorite, not only for his
constitutional right of succession, but also for the mistrust the Ivoirian people held
regarding Ouattara, because of his poor involvement in national politics, his long
career within the IMF and also for having been the mentor of the austere economic
reforms that had spurred the social crisis in 1990.
Therefore, Bédié assumed the presidency, which was meant to last until the 1995
polls. Meanwhile, Ouattara and his followers had split off PDCI, forming their own
party, Rassemblement des Républicains (RDR), intending to run for presidency in 1995,
when another competitor would rise—Laurent Gbagbo from Front Populaire Ivoirien
(FPI)1, the main opposition party that during Huophuët-Boigny’s rule operated
clandestinely.
Although short-lived, Bédié’s mandate gave birth to the new pattern of conflict
in Côte d’Ivoire. He formulated the principle of “Ivoirité”, the Ivoirian national pride,
which stated that in order to be a citizen of the country, the inhabitants had to
prove their true Ivoirian nationality, which meant having been born in Côte d’Ivoire
to parents who had also been born in Ivoirian territory. Therefore, a significant
portion of the Ivoirian population whose parents were first-generation immigrants
from Burkina Faso, Mali or any other country had their rights severely curtailed,
deepening Côte d’Ivoire’s social divisions. Although ultimately aimed at barring
Ouattara from running for presidency in 1995, and to conserve the legitimacy of the
PDCI, weakened after the departure of Ouattara’s supporters, the Ivoirité policy
ended up affecting millions of people, especially in the immigrant-packed North, to
whom even identification cards were denied or made harder to obtain (QUENUM,
2011). Bédié’s strategy of using the concept of nationality as a political tool ended up
transforming the political conflict into an ethnic and religious one: that was the end
of the ethnic balance long managed by Houphouët-Boigny.
1.3. POWER STRUGGLES, THE RISE OF GBAGBO AND THE CIVIL WAR
In 1995 what was supposed to have been a three-party run for Presidency,
became a political disorder. Ouattara, for Rassemblement des Republicains and Laurent
Gbagbo, for Front Populaire Ivoirien, both decided to boycott the polls. The former, for
being legally excluded from the run-up by the Ivoirité policy, and the latter
denouncing the polls manipulation. RDR and FPI joined forces to form the Front
Republicain, through which they protested against the Ivoirité-based Electoral Code
and set up the Active Boycott (ALMÅS, 2007), calling national and international
attention over polls’ illegitimacy. Nevertheless, elections were not canceled, and
Bédié won with 95% of the votes.
1
A history teacher who was particularly popular in universities and student organizations.
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In late 1999 a mutiny of soldiers demanding Bédié to step down ended up as the
first coup d’état in Côte d’Ivoire’s history, as Robert Gueï was conducted to power.
Gueï, a former Ivoirian Army chief, was forced out of duty in 1997 after falling out of
Bédié’s favor. Claiming to have no political ambitions and supposedly aiming to
eradicate corruption from governmental ranks, Gueï promised to call democratic
elections as soon as the political situation was stabilized. In 2000, elections were
held, but Ouattara was once again impeded from running for presidency by the
Supreme Court because of his Burkinabe ascent. However, when vote counting
signaled the opposition candidate, Laurent Gbagbo, was winning, Gueï interrupted
the counting of votes—claiming political fraud—and tried to execute a coup by
declaring himself the winner (ALMÅS, 2007). Severe popular demonstrations of
support for Gbagbo followed, leaving no choice to Gueï but to relinquish power to
his opponent. Until Ouattara’s party, RDR, also recognized Gbagbo’s victory,
violence also sparked in the streets between supporters of both political leaders.
Laurent Gbagbo’s presidency was not free of the Ivoirité discourse. It is said that,
beyond the already usual denial of rights based on citizenship, the concept was used
to exclude northern army officers from promotion lists (QUENUM, 2011). In
September 2002, rebellious military men and conspirators launched simultaneous
attacks in Abidjan, Bouaké and Korhogo, killing high-rank politicians and military
officers. The government in Abidjan was able to block a coup attempt, but
nevertheless the rebel group, now self-entitled Mouvement Patriotique de Côte d’Ivoire
(Patriotic Movement of Côte d’Ivoire, MPCI), retained control of the northern part of
the country (US DEPT OF STATE, 2010). In October, Abidjan and the MPCI signed an
agreement establishing a ceasefire line to be monitored by France. However, later
that year, two new rebel groups emerged in the west, near the border with Liberia:
the Mouvement Populaire Ivoirien du Grand Ouest (Ivoirian Popular Movement of the
Great West, MPIGO) and the Mouvement pour la Justice et la Paix (Movement for Justice
and Peace, MJP). The three rebel groups eventually went under unified command,
with Guillaume Soro, from MPCI, as the chief operator.
In early 2003, under the Linas-Marcoussis Agreement, the Economic Community
of West African States (ECOWAS) sent approximately 1,500 peacekeeping troops
from Senegal, Ghana, Benin, Togo, and Niger to maintain an east-west ceasefire line,
known as the Zone of Confidence, dividing the country. In addition to the line, the
agreement set up a plan for a national unity government with participation of the
biggest political parties and rebel factions (QUENUM, 2011). However, throughout
the year, this governmental setting broke down, with officers either abandoning or
being dismissed from their ranks, which led the peace process to a stalemate. In
mid-2004, thus, the Accra talks took place in Ghana to reengage the rebels and
renew deadlines for disarmament. These goals also failed due to mistrust among the
parts, which sparked fresh violence between the government and the Forces
Nouvelles (New Forces, the name adopted by the rebels under unified command). In
that same year, the United Nations Operation in Côte d’Ivoire (UNOCI) was
established in the country.
In April 2005, after intense negotiations among the government, the Forces
Nouvelles leadership and the opposition parties brokered by Thabo Mbeki, then
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president of South Africa, the Pretoria Agreement was reached. Besides committing
to reengage in the peace process and integrating the rebel forces into the national
army, the agreement called for elections to be held on October, monitored by the
United Nations. Due to the lingering political instability and suspicion amongst the
parties, elections did not take place and were delayed six times between 2005 and
2010. The agreement did not completely end the fighting neither: the civil war
continued intermittently until 2007.
In November 2006, the United Nations Security Council passed a new resolution
which, though again extended the “transition period” of Côte d’Ivoire before
elections—thus maintaining Gbagbo in the presidency—, also aimed at widening the
powers of the prime minister, in order to make possible that different governmental
stances, possibly filled up with politicians from opposing parties, share power.
Gbagbo rejected the resolution’s determinations right away, and called for direct
dialogue with the Forces Nouvelles command instead. These new negotiations were to
be brokered by the president of Burkina Faso and then chairman of ECOWAS, Blaise
Compaoré, who was believed to be the main backer of the rebels in Côte d’Ivoire
(INTERNATIONAL CRISIS GROUP, 2007). After a month of negotiations, the
Ouagadougou Agreement was signed on March 4, 2007. Among other considerations,
the agreement dealt with the issuance and restoration of birth certificates, identity
documents and residence permits, the normalization of the electoral process and
the implementation of the National Disarmament, Demobilization and Reintegration
Program (DDR). Later that year, Guillaume Soro was appointed as prime minister.
1.4. THE OUAGADOUGOU AGREEMENT AND FURTHER DEVELOPMENTS
The Ouagadougou Agreement focused on three main issues: the reunification of
the country and the Armed Forces and the establishment of new elections. Right
after the signing, voter’s registration and identification were re-launched, in order
to hold new elections within 10 months. As for the territorial reunification, the
agreement called for dismantling the Zone of Confidence, which was accomplished
in September 2007, parallel to UNOCI withdrawal from the region and the institution
of Mixed Brigades and impartial forces—formed by both Forces Nouvelles and
National Forces soldiers. It was part of the DDR strategy—the disarmament,
demobilization and reintegration of rebel combatants, with the joining government
forces in the settlement of a new Command Center. Defense and Security Forces
were completely reintegrated by January 2008.
The polls forecast, however, did not become reality. In November 2008 they were
postponed, and in the next year, a new supplementary agreement was added to
Ouagadougou, asserting that the DDR should be completed two months before
elections. Although not interrupted, citizenship identification and registration were
at a slow pace, due to operational obstacles. Because of that, elections were twice
again put off. In November 2009, when finally a provisional electoral list was set, a
new political crisis rose, related to the dispute over the names on the list. President
Gbagbo decided to dissolute the government and the CEI (Independent Electoral
Commission) in February 2010, alleging fraud. Widespread riots, however, forced
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him to allow the announcement of a new government and point a new CEI cabinet.
New elections were only settled later on.
In October 2010, the presidency was disputed by Gbagbo, former Prime Minister
Alassane Ouattara, and former president Henri Konan Bédié. In the first round
Gbagbo and Ouattara garnered the most votes but neither candidate received a
majority. The second round of voting did not go as smoothly as the first, hence
Gbagbo announced his intent to challenge the outcome of the election, alleging
fraudulent practices and voter intimidation. International observers, however,
deemed the election to be largely democratic. Côte d’Ivoire’s CEI, certified by the
UN, showed that Ouattara won the election with 54.1% of votes. Gbagbo, however,
appealed the IEC decision to Côte d’Ivoire’s Constitutional Council, stacked with
members mostly nominated by him, declaring Gbagbo to be the winner, with 51% of
votes. Both candidates then claimed to have won the runoff and separately
inaugurated themselves as presidents, forming rival governments.
On December 20, 2010, the United Nations extended UNOCI’s mandate, in face of
the post-electoral violence. ECOWAS and African Union attempts to negotiate a
resignation with Gbagbo failed, while international pressure coming from the
United States, other Western countries and the UN mounted. Meanwhile, fighting
intensified between pro-Ouattara and pro-Gbagbo forces in several cities, including
Abidjan. In April 2011, the French army moved swiftly and seized the Abidjan
airport. In the same month, pro-Ouattara forces surrounded the bunker where
Gbagbo was hiding and a UN-France joint operation bombed pro-Gbagbo forces
(REPUBLIC REPORT, 2011). On April 8, Laurent Gbagbo was captured, putting an end
to the imbroglio. Internationally-recognized president Alassane Ouattara has said
that Gbagbo is going to be prosecuted in both national and international judicial
stances, and has asked the International Criminal Court to investigate mass killings
conducted throughout the country during the political dispute (INTERNATIONAL
CRISIS GROUP, 2011).
2.1. THE OUAGADOUGOU POLITICAL ACCORD
2.1.1. PREVIOUS POLITICAL DEVELOPMENTS
Following a difficult conflict resolution process, belligerents in the Ivoirian
conflict decided to solve their differences through direct dialogue. This brought to
an end a mediation process that witnessed a synergy between the Economic
Community of West African States, the African Union (AU) and the United Nations.
On March 4, 2007, the armed resistance militia in the north and government signed
the Ouagadougou Political Accord (APO) as a framework for addressing the key
issues in the ongoing conflict. The conflict had started in September 2002, after an
attempted coup was led by the northern Forces Nouvelles group, headed by Guillaume
Soro, and President Gbagbo responded militarily, turning it into a civil war. The
conflict further expanded and developed a regional character as it became closely
connected to the crises in Guinea (Conakry), Liberia and Sierra Leone; with Burkina
Faso accused of supporting the Forces Nouvelles.
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At the heart of the accord is an attempt by the Forces Nouvelles and the
government to secure their political survival in an uncertain environment, which
was threatening to undermine their strategy of intransigence and radicalism. The
first vowed to continue the struggle until identification papers and citizenship was
given to northerners, while the latter insisted on keeping the powers of the
president, as stipulated in the constitution. Gbagbo himself felt restricted and
confined to a very difficult situation by the UNSC Resolution 1721, in which the
Prime Minister had his powers extremely enlarged. This uncertainty was reinforced
by the fact that both the Forces Nouvelles and the government had exhausted their
military and diplomatic resources, with no victory in sight.
Direct dialogue with the armed militia therefore presented Gbagbo with an
opportunity not only to regain control of the peace process but also to sideline a
diplomatically fatigued international community. It was also an opportunity to
accumulate the leverage and pressure that comes with controlling such processes,
as well as increase his maneuvering space to dictate the pace and shape of the
transition, through the control of state institutions. Most importantly, the accord
was aimed at severing an alliance between the armed militia and the political
opposition, by effectively co-opting the armed militia.
For the armed militia, the Ouagadougou Accord also presented a strategic escape
from an untenable position. The rebellion has brought dire socio-economic
consequences to the north, which had virtually been cut off from accessing state
resources. The armed militia understood that this situation could strain their
platform for mobilizing support among the population. Moreover, even among the
rebel leaders, there were some concerns that there should be a change of strategy,
since military confrontation had not produced the results they aspired for and the
stalemate could last forever, considering that secession had never been
contemplated. Thus, the Accord provided an opportunity for Soro to consolidate his
position within the Forces Nouvelles. Also of critical importance was the political
future of the rebellion’s leadership. There is a belief that the political opposition
strategically exploited the armed militia’s struggle for their own ends.
Consequently, abandoning the political opposition seemed like a strategic decision
for the Forces Nouvelles (AYANGAFAC, 2007).
The Ouagadougou Accord presented the Forces Nouvelles with an opportunity not
only to solicit concessions that could not be made in a multilateral forum, but also to
have a say in determining the political future of the country. It should be noted that
the armed militia has always wanted the post of prime minister though the political
opposition was against it, perceiving the move as effectively excluding them
politically. Therefore, the Accord presented the armed militia with an opportunity
to at least plot their political future in a new Côte d’Ivoire.
The timing and dynamics in the international arena necessitated a change in the
preferred strategy of the various stakeholders in the Ivoirian conflict. Of critical
importance was the ECOWAS chairmanship, held by Burkina Faso’s President, Blaise
Compaoré; South Africa’s position as a non-permanent member of the UN Security
Council; and the nomination of a new UN Secretary-General, Ban Ki-Moon. This
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explains the urgency with which ECOWAS, the AU and the UN adhered to the accord
(AYANGAFAC, 2007).
2.1.2. THE ACCORD’S MAIN DISPOSITIONS AND THEIR IMPLEMENTATION
Even though the Ouagadougou Political Accord did not substantively depart
from the previous unsuccessful internationally negotiated agreements, in its
preamble the two parties reaffirm their commitment to the Linas-Marcoussis, Accra
and Pretoria Agreements as well as “to all United Nations Resolutions on Côte
d’Ivoire, particularly Resolutions 1633 (2005) and 1721 (2006) of the Security
Council” (UNSC, 2007a, p. 3). In line with the Accord the transitional government
should implement the operations already required by the UN Security Council
Resolution 1721: general identification of the population; disarmament of armed
militias, restructuring of the army and the reintegration of demobilized soldiers;
reunification of the national territory and redeployment of the administration in
the area under control of the former rebels; and organization of open and
transparent elections.
Differently from previous agreements that allocated this task to a prime minister
equidistant from the parties involved in the conflict, in the APO responsibility for
the conduct of the transition was transferred to the protagonists themselves,
President Gbagbo and the new Prime Minister Soro (ICG, 2007). In order to ensure
follow-up to this Agreement and continuation of the direct dialogue, the Parties
agreed to establish a permanent consultation mechanism (CPC) and an evaluation
and monitoring committee (CEA). Four complementary accords to the APO have
already been signed since 2007 as well.
Both parties in the conflict acknowledged that identity is a key issue
underpinning the ongoing tensions in Côte d’Ivoire (AYANGAFAC, 2007). And, for
that matter, the lack of a clear and coherent identification process, and of unique
administrative documents attesting to the nationality and identity of citizens, has
fuelled conflict. The accord calls for the re-launching of mobile courts for the
establishment of the judgment of birth certificates (AYANGAFAC, 2007).
Significant progress has been achieved, as fighting has stopped, disarmament
has begun, substitute birth certificates have been issued to a significant number of
people, and the identification and voter registration process has reached
substantive results. However, these processes have been too slow and incomplete.
Despite their commitment to the agreement, implementation has been hampered by
logistical problems and strategic calculations by the belligerents not to be outwitted
during the implementation process. By March 2008, the mobile courts had issued
372,810 substitute birth certificates. By the end of 2008, there were around 3,000
registration sites and approximately 2.8 million people had registered as voters
(BAKARR BAH, 2010). Later the CEA has acknowledged in its seventh meeting that as
of June 30, 2009, over 6,500,000 people in Côte d’Ivoire and abroad had been enrolled
as a result of the identification process and voter registration (CEA VII, 2009).
On May 14, 2009, Soro announced that elections would be held on November 29,
2009. More than six million voters registered for these, which was postponed once
again. On the military side, disarmament has been progressing, albeit slowly. By the
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end of 2008, 11,769 of the 34,678 profiled Forces Nouvelles’ combatants had gone
through the cantonment exercise. Some FN combatants have been integrated into
the security services, but disagreement over salaries and ranks has been slowing the
process. Despite the peace, the gains of the Ouagadougou Agreement have been
undermined the failure to hold elections. In February 2010, Gbagbo temporarily
dissolved the government and the Independent Electoral Commission, which he
accused of voter registration fraud. Elections would be held in October of that year
(BAKARR BAH, 2010).
2.2. THE 2010 ELECTIONS AND ITS CONSEQUENCES
2.2.1. 2010 ELECTIONS
Presidential elections were held in two rounds in Côte d’Ivoire. The first round
was held on October 31, 2010, and a second round, in which Laurent Gbagbo faced
Alassane Ouattara, was held on November 28 of that year. Although originally
scheduled to be held in 2005, the vote had been delayed several times.
The national institution in charge of organizing and conducting the elections
was the Independent Electoral Commission of Côte d’Ivoire. More than 5.7 million
Ivoirians registered to vote in 10,179 locations around the country, in 20,073 polling
stations manned by 66,000 polling agents. The UNOCI provided technical, logistical
and security support to the Government of Côte d’Ivoire and to the CEI, including
transportation and distribution of national identity and voters’ cards,
transportation of equipment and other electoral materials, and security support.
International observers from the European Union, ECOWAS, AU, the Organisation
Internationale de la Francophonie, the Carter Center, the US and Japan have monitored
the voting process along with national observers. Moreover, the European Union
and the United Nations Development Programme assisted the Ivoirian government
with funding support for the electoral process.
2.2.2. POST-ELECTION CRISIS
Côte d’Ivoire has been marred in a political crisis since November 28 when the
second round of presidential elections closed and the Electoral Commission declared
Ouattara winner. The Special Representative of the UN Secretary-General, Choi
Young-jin, in accordance with his mandate, certified the process and consequently
also declared that Ouattara had won the polls. However, the Constitutional Court,
the highest national authority on electoral matters, subsequently overturned the
Electoral Commission’s decision and declared Gbagbo winner. Hence, each candidate
claimed victory. Ouattara was recognized as President by a number of States and
International Organizations, including the AU and ECOWAS. At the same time,
sanctions and asset freeze were imposed on Gbagbo and some of his closest
supporters.
Armed conflict soon began as Ouattara’s supporters engaged in an offensive
against government forces. In the economic capital, Abidjan, the situation turned
volatile. Gbagbo’s camp, among other things, accused France and the United States
of America of masterminding a “Western plot” against him, and called for the
withdrawal of UN Operation in Côte d’Ivoire (UNOCI). Violence outbreaks quickly
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spread throughout the country, reaching alarming levels and drawing the
international community’s attention. It resulted in the military action of UN
peacekeepers and French troops.
On April 11, 2011, Gbagbo was captured by Ouattara’s Republican Forces, after
having refused to stand down for the four months subsequent to the result of the
presidential elections. Ouattara has now then taken over the country’s presidency.
According the Office of the High Commissioner for Human Rights, at least 900 deaths
have been confirmed in Abidjan and western Côte d’Ivoire as a result of the conflict,
including retaliatory attacks. It is estimated that 800,000 people have been
internally displaced inside Côte d’Ivoire, and over 160,000 others have fled to
neighboring countries. Liberia has received the majority of Ivoirian refugees (OCHA,
2011).
2.3. ETHNIC DIVISION
The situation in Côte d’Ivoire is largely influenced by its domestic affairs, which
depend on the ethnic dynamics of the country. The relations between the many
different ethnic groups have great influence over the political decisions.
2.3.1. THE ETHNIC COMPOSITION
Côte d’Ivoire is commonly said to have 60 different ethnic groups, which can be
gathered into four major groups with common linguistic and cultural traits: Mandé,
Gour, Krou and Kwa (also called Akan). Their distribution over the country can be
more or less understood as follows: the north, the savannah, is mainly inhabited by
Mandé and Gour, while the south, coastal, is Kwa’s and Krou’s region. The biggest
ethnic group is the Kwa, which corresponds to almost 45% of the Ivoirian population
(SKOGSETH, 2006).
Almost all Ivoirian ethnic groups are originally animists, which is still the most
common religion in the country. However, Christian and Islamist expansions have
led to the spread of such beliefs within the country. The northern groups were the
most affected by Islamism, while the southern, by Christianity—initially only
Catholics, with later entry of the Pentecostal congregations. However, animist
beliefs are still very strong, sometimes changing some aspects of other religions.
It is important to bear in mind that those groups are not exclusive from Côte
d’Ivoire and that their relations with theirs “brothers and sisters” in the
neighboring countries plays a major role in the regional dynamics, as some of them
feel more connected to people of same ethnicity than those of same nationality. The
connections between Ivoirian groups and their neighbors can be synthesized by
tying the Krou to eastern Liberia; the Kwa to southern Ghana, Togo and Benin; the
Mandé to Guinea, northeastern Liberia, Sierra Leone, Mali and Burkina Faso; and the
Gour to Mali, Burkina Faso, northern Ghana and northern Togo.
Throughout Ivoirian history, migration flows have been reported both within
the country and from outside. The neighboring countries have contributed largely
to the formation of the Ivoirian people. The immigration of Kwa groups has also
been encouraged, and this can partly explain its great participation in the country’s
population. Foreigners and people from foreign origin correspond to 25% of the
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Ivoirian population. Europeans and Lebanese have also moved to the country in a
large scale, controlling now the private sector and the commerce, respectively
(SKOGSETH, 2006).
2.3.2. ETHNIC DIVERSITY AND THE POLITICAL PARTIES
The location of the ethnic groups in Côte d’Ivoire is of main importance to its
political dynamics. A rivalry between northern and southern groups has also been
present in the country. However, the southern privileged position, as they hold the
administrative cities and the whole coast, is a major advantage for them. The
historical conflict between the regions can be easily perceived when analyzing the
political parties and its recent developments. The three main parties, PDCI, RDR and
FDI, are filled with ethnically based arguments and statements, each one
representing different groups.
The first Ivoirian political party was the Democratic Party of Côte d’Ivoire (PDCI,
Parti Démocratique de la Côte d’Ivoire). Beginning as an agricultural union, it was one of
the main advocates of the nationalist cause during the independence fights. It
remained the only party during Houphouët-Boigny’s rule, but his death and the
succession question provoked a dispute among its supporters. The main leaders,
Bédié and Ouattara ended up splitting the party, with the latter creating the RDR.
Currently the PDCI represents mainly the Kwa’s interests.
The current ruling party, the Republican’s Rally (RDR, Rassemblement des
Républicains) of president Alassane Ouattara, is mainly composed by the northern
groups. This represents a major change in the Ivoirian politics, as they have always
been marginalized politically, even based on location argumentations. In the 1995
elections, Ouattara had his candidacy deeply damaged through statements on the
Ivoirité of his party2. This initiated a new debate on whether some ethnic groups are
more Ivoirian than others and showed the ethnically based rivalry of the parties.
Former president Laurent Gbagbo’s party is the Ivoirian Popular Front (FDI, Front
Populaire Ivoirien), which is mainly supported by Krou groups, especially since the
beginning of the current century. The party was clandestinely created in 1982 by
Gbagbo and other intellectuals, as “a self-styled socialist [opposition] party”.
(JANE’S, 2009, p. 54) FDI and PDCI have often gathered to counter the RDR influence,
mainly because of their strategic positions in the country and their interest in
politically marginalizing the northern ethnic groups.
2.4. THE FOREIGN INFLUENCE AND ITS RECENT CONSEQUENCES
The former colonial power in Côte d’Ivoire, France, played an important role not
only in the colonial period, but also after its independence. The presence of French
troops in the Ivoirian territory has been steady and increasingly important.
The first Ivoirian president Félix Houphouët-Boigny, in many treaties with the
French Republic, abdicated much of the Ivoirian army’s (Forcés Armés Nationales de
Côte d’Ivoire, or FANCI) power and duties to the French troops. This resulted in the
2
The other candidate, Henri Konan Bédié, gave great importance in his campaign to the question of
whether Ouattara, or other people of Mandé or Gour origin, were sufficiently Ivoirian to rule the country.
The results of the elections were positive to PDCI, Bédié’s party. (SKOGSETH, 2006)
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complete dependence of the armed forces, which cannot handle the country’s
external security and have troubles concerning the undermining of rebel groups
(VAÏSSE, 2003).
The Ivoirian-French relations have always been extremely cooperative with a
clear commercial and political dependence from Côte d’Ivoire. However, the rise of
Laurent Gbagbo in 2000 led to tensions with France. Gbagbo’s regime was always a
discomfort to France with recurring serious divergences. However, the Ivoirian
regime still highly depended on French troops, which were responsible for the
maintenance of stability in the country (JANE’S, 2009).
The worsening of the relations between France and Côte d’Ivoire was provoked
by the steady disapproval of the French presence and actions by the hard core of
Gbagbo’s support and its reflections on the Ivoirian posture towards France. This
culminated in clashes between the countries in 2004, beginning with an Ivoirian
attack to the French military base in Bouaké, followed by the destruction of the
Ivoirian Air Force (VAÏSSE, 2003).
Following tensions with France, Gbagbo created many conflicts with its African
neighbors, mainly Liberia. The Ivorian role in the Liberian civil war following the
military coup of 1980 was vital, since the Ivorian government supported some rebel
groups against the Liberian regime. This phenomenon persisted in the following
decade, as both Ivorian and Liberian presidents incited rebels to undermine each
other’s regime, with accusations of both governments in multilateral forums
(JANE’S, 2009). This has led to the escalation of political instability in both countries.
Being one of the founders of ECOWAS, Côte d’Ivoire experienced a period of
extreme influence over this francophone organization. Nonetheless, the instabilities
in the country have led to the loss of its major role and to the subsequent beginning
of interventions in the country by the organization. The ECOWAS intervention in
Côte d’Ivoire is also very important, since it has become responsible for the
supervision of the Ouagadougou Accord’s implementation together with France.
Their presence is unlikely to be withdrawn soon, though they aim to reduce the
number of other foreign troops (VAÏSSE, 2003).
Ever since 2002, when the rebellious military divisions started their national
operations to overthrow Gbagbo’s government, the United Nations Security Council
has taken up the Ivorian conflict for deliberation. In 2003, through resolutions 1464
and 1479 respectively, the Security Council endorsed the results reached by the
Linas-Marcoussis Agreement as well as gave full support to the deployment of
ECOWAS and French Army troops, and established the United Nations Mission in
Côte d’Ivoire (MINUCI, acronym in French) on May 13 (UNSC, 2003a; 2003b). The
Council stressed the need for the constitution of a government of national
reconciliation, in accordance with the provisions of the Linas-Marcoussis
Agreement.
On February 27, 2004, upon a request formally made by ECOWAS for the
establishment of a peacekeeping mission in Côte d’Ivoire, Resolution 1528 created
the United Nations Operation in Côte d’Ivoire (UNOCI) (UNSC, 2004). Beyond
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unifying the command of the ECOWAS mission and MINUCI—which had limited
procedural monitoring and reporting purposes 3—, UNOCI assumed tasks of
disarmament and demobilization of the rebel forces, monitoring the ceasefire, and
maintaining law and order in the country (UNSC, 2004). Later that year, in face of
renewed violence, the Council decided to create a committee to impose restraints on
movement and to freeze financial assets of individuals understood to be impeding
the implementation of the Linas-Marcoussis and Accra III provisions (S/RES/1572).
Later, Resolution 1643 (2005) also instituted a ban on the exportation of rough
diamonds from Côte d’Ivoire to all UN member states (UNSC, 2005).
In 2005, after the signing of the Pretoria Agreement, the Security Council also
started pushing for the proper registration of citizens to set up elections. UNOCI
itself was entrusted with supervising this process, through Resolution 1739 (2007)
(UNSC, 2007b).
Amid the late 2010 post-electoral violence in Côte d’Ivoire, both ECOWAS and the
African Union suspended the country from its decision-making processes on
December 7 and 9, respectively. Moreover, since the start of the factional violence
between supporters of Ouattara and Gbagbo, the United Nations Security Council
has passed five resolutions regarding the matter, condemning violations of human
rights and urging all parts of the conflict to restrain from military action. Resolution
1967 (UNSC, 2011a) authorized the deployment of a further 2,000 troops under
UNOCI’s command, summing up to 8,650 personnel then already on field (UNSC,
2010). Under the same resolution, police unit personnel were also deployed to tackle
threats posed by unarmed crowds (UNSC, 2011a). In order to strengthen UNOCI,
resources from UNMIL, the United Nations Mission in (neighboring) Liberia, were
channeled to Côte d’Ivoire, such as helicopters (UNSC, 2011b). On April 28, 2011, the
Security Council renewed a series of travel and financial operation bans on
individuals regarded as “a threat to the peace and national reconciliation process in
Côte d’Ivoire, in particular by blocking the implementation of the peace process, as
referred to in the Ouagadougou Political Agreement” (UNSC, 2011e, p. 3, §10a).
4. BLOC POSITIONS
Reiterating its firm condemnation of all violations of human rights and
international humanitarian law, as well as all violence committed against civilians;
welcoming the steps recently taken toward national unification and stabilization in
Côte d’Ivoire, Bosnia and Herzegovina underlines its full commitment to UNSC
Resolution 1980 (2011e). It also stresses the continuation of UNOCI, ECOWAS and AU
efforts in assisting the Ivorian people in their way back to self determination.
Brazil strongly condemns all threats and harms against civilians, regardless of its
origin. Brazil’s urges for the UNOCI’s impartial authority to be respected by all
parties in Côte d’Ivoire, as means to being able to resume its mandate to protect
civilians in an environment free of threats, attacks or movement limitations. Brazil
continues to strongly support a political process that promotes a negotiated
3
MINUCI’s mandate did include, however, a small military component complementing the operations
carried by ECOWAS and France.
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settlement to the crisis, while upholding the will of the Ivorian people, as reflected
in the recent elections. Brazil strongly supports the efforts by the African Union and
other regional actors in this regard.
The People’s Republic of China sees Côte d’Ivoire as an important partner and
seeks the safety and the well being of its citizens. The results of the 2010 elections,
as the African Union announced them, were accepted by China and, therefore, its
representatives to the UNSC approved Resolution 1975 (UNSC, 2011c). For China, it is
vital that the African countries and organizations have their right to act in the
solution of the conflict preserved. Thus, the country believes the ECOWAS’ and
African Union’s positions shall be respected and their participation shall be
supported.
Colombia reiterates its full accordance to UNSC Resolution 1980 (2011e) and the
advancing steps taken by the Ivoirians toward national reunification and
stabilization. Welcoming President Alassane Ouattara election accordingly to the
Ivoirian Constitution, it stresses the continuity of UNOCI peacekeeping mission, and
the consultation and arbitrage efforts assumed by ECOWAS and AU as assistant
measures to the empowerment of Ivoirian people, as means to their sovereignty,
independence and self determination.
France has played a major role in Côte d’Ivoire, as the country is a former French
colony and the countries still hold close ties. However, the past few years have
witnessed a perceptible deterioration of the bilateral relations, especially after the
incidents of 2004. Furthermore, under the presidency of Gbagbo, the opposition to
French military presence in the country started to become more exacerbated
(JANE’S 2009). France has supported Ouattara as the elected president of Côte
d’Ivoire and condemned the actions taken by Gbagbo both in the political and the
military fields. The French government welcomed UN’s initiatives and UNSC’s
resolutions on the matter, and, in the beginning of 2011, it engaged actively in
countering Gbagbo’s supporters militarily along with ONUCI forces, until he was
defeated.
Gabon’s positioning in relation to the political crisis in Côte d’Ivoire
corresponded to that of the African Union, as Gabonese diplomat and politician Dr.
Jean Ping is currently African Union Commission’s Chairperson. In that sense, Gabon
supports all of the AU efforts to diminish tensions and convince Gbagbo to respect
the results of the election and cede the presidency (COOK, 2011).
Germany recognizes the election of President Alassane Ouattara and supports
the activities of the UN Operation for Côte d’Ivoire, aiming enduring peace and
stability in the country. Since the election crisis, Germany suspended cooperation
with the African country. The participation of the AU and the ECOWAS is welcomed
by the German representatives.
India, the leading troop contributor for UN peacekeeping missions in Africa,
approved the deployment of the peacekeeping mission in the country and the
enforcement of the 2010 elections results. However, for India the activities of the
UNOCI have to follow strictly what the UNSC resolutions state and the participation
of the mission in the civil war must be prohibited. India also supports the
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participation of regional organizations such as the African Union and ECOWAS
(UNSC, 2011d).
Lebanon has deep concerns over the continued violence and human rights
violations in Côte d’Ivoire, including against UN peacekeepers and civilians,
reinforcing its commitment to the measures taken by and remarked in UNSC
resolution 1980 (2011e). It supports continued contribution of UNOCI action, the
efforts by all the Ivoirians to promote national reconciliation and the assistance of
the AU and ECOWAS to the stability in Côte d’Ivoire.
Nigeria, as a member of ECOWAS, organization whose current Chairman is
Goodluck Jonathan, the Nigerian President, endorsed the organization’s decisions on
the Ivorian crisis. On December 7, 2010, ECOWAS recognized Ouattara as the winner
of the second round of the Presidential elections of Côte d’Ivoire and called on
Gbagbo to abide by the results and to yield his power. ECOWAS also decided to keep
the issue of force as an option, but only after all other peaceful means of persuading
Gbagbo to cede power to Ouattara should fail. Moreover, the Nigerian Foreign
Minister has accused the international community of double standards by imposing
a no-fly zone to protect Libyan civilians while doing very little to put an end to
abuses and violence in Côte d’Ivoire in March (UNSC, 2011d).
Portugal supports the UN Security Council’s decisions taken to tackle the Ivorian
situation. Its representatives recognize the election of President Ouattara and
approve the UNOCI activities to help civilians and ensure stability.
Although the Russian Federation supports the outcome of the 2010 presidential
elections in Côte d’Ivoire and the empowerment of Alassane Ouattara, it does not
approve of the level of foreign interference that has been conducted in the country.
Russia strongly encourages the impartiality of UN bodies acting for the sake of
civilian’s lives in Côte d’Ivoire. For Russia, the consolidation of peace in the country
and in the region must be obtained through cooperation with AU and ECOWAS.
South Africa maintained a rather ambiguous position on the crisis in Côte
d’Ivoire. On December 4, the same day on which Gbagbo and Ouattara each
inaugurated themselves, the AU requested that former South African President
Thabo Mbeki travel to Abidjan to mediate a peaceful outcome to the dispute, but he
failed to change the stance of either man. In early 2011, President Zuma reportedly
stated that he believed that poll discrepancies had marred the Ivoirian vote and that
he favored AU mediation to end the crisis, despite his government’s earlier release
of a statement endorsing an ECOWAS communiqué recognizing Ouattara as
President and calling for Gbagbo to cede power without any delay. South Africa’s
ambiguous stance was again reflected in comments by the South African Foreign
Affairs Minister, Nkoana-Mashabane, who in mid-February defined the election
results as inconclusive. While the minister also insisted that South Africa was
neutral, her comments, added to those of Zuma, prompted some analysts to declare
that South Africa had not recognized Ouattara’s election and was therefore proGbagbo. Moreover, South Africa deployed a frigate off the West African coast in
January 2011, action which was reportedly viewed by ECOWAS as interfering with
the AU work and, by some analysts, as a potential sign of military support for
Gbagbo. The South African government, however, denied such claims, declaring that
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the frigate had been deployed for training purposes. Later, South Africa, would
directly take part in an AU effort to end the crisis, the “Panel of Five”, constituted by
five heads of state, including Jacob Zuma (UNSC, 2011d).
The United Kingdom is strongly committed to all the measures aimed at
supporting the peace process in Côte d’Ivoire, stated in UNSC resolution1980
(2011e), which recalls the previous resolutions approved by the Security Council.
The United Kingdom stresses the importance of sovereignty, independence and
territorial integrity and unity of Côte d’Ivoire, to which UNOCI lends full support; as
well as the principles of good-neighborliness, non-interference and regional
cooperation, welcoming the assistance of the African Union and ECOWAS in this
regard. The United Kingdom defends that a fair judicial process charging former
President Gbagbo should be carried out.
The United States of America recognized Ouattara as the rightful President of
Côte d’Ivoire following the 2010 elections, welcomed the military action developed
by the UN peacekeepers and the French forces in the country and praised Gbagbo’s
arrest and Ouattara’s arrival to the presidency. The post-electoral crisis and conflict
directly threatened long-standing US efforts to support a transition to peace,
political stability, and democratic governance in Côte d’Ivoire, prerequisites for
long-term socioeconomic development in Côte d’Ivoire and in West Africa as a
whole, another key US objective Although the crisis did not directly affect vital US
national interests, the country remained an important economic hub in the region,
and the effects of a sustained armed conflict would likely have had deep negative
economic and humanitarian impacts in West Africa, rendering a great US
investment in the sub-region useless (COOK, 2011).
i.
What modifications shall take place in UNOCI in order to achieve its original
goals and assist peace consolidation in the country after Gbagbo’s step down?
ii.
In what terms shall the Ivorian reunification occur? What steps are required
to stabilize the country?
iii.
What role shall the UN play in the achievement of this goal? How can the
Security Council best provide effective input for the large and complex
peace-building process needs of the country?
iv.
How are the peace-building responsibilities and decisions supposed to be
shared between the UN and the regional and sub-regional organizations?
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TOPIC B: The situation in Libya
Alexandre Spohr, Isadora Loreto da Silveira, Luiza Olmedo, Josuá Gihad Soares
and Giulia Barão
1.1. THE BUILDING OF THE LIBYAN TERRITORY AND IDENTITY
It is important to acknowledge that the name “Libya” was historically a loose
term for three distinct regions—Tripolitania, Cyrenaica and Fezzan—to the west of
Egypt. The present state of Libya was historically built around the city of Tripoli by
its rulers’ conquest of neighboring self-administered provinces and kingdoms. Once
part of Phoenician domains and later a full-blown Roman city, Tripoli has developed
into an Arab-populated corsair maritime hub and eventually went under Ottoman
regency in 1511. However, by this time, the Libyan coast had no centralized
administration, as power was scattered among pirates, and it would remain like this
for two more decades of weak regime enforcement by the Ottomans. Only in 1711
the Karamanli dynasty was founded, and for the following century would rule most
of the area which is Libya nowadays with a high level of autonomy (SHILLINGTON,
2005).
The last ruler of the Karamanli dynasty, Yusuf Pasha, was responsible for
effectively unifying the country around Tripoli and reviving its military forces.
Pasha also established a system in which corsair activity in the Mediterranean Sea
and forays into the trans-Saharan trade routes of black slaves guaranteed, though
irregularly, the kingdom its economic revenues to support itself. Its expansionism,
however, was barred by souring relations with Great Britain, a new power in the
region by the early 19th century. Following a debt crisis, disruption in the slave
trade and civil strife, Pasha renounced to his son. Disputes over the succession
included the British and the French backing different claimants, and the turmoil
gave way to an Ottoman intervention in 1835. Henceforth, Tripoli would come to
direct ruling from Istanbul until 1911.
As part of the race for the division of Africa among great powers in the 19th
century, Libya followed Eritrea and Somalia and fell into Italian rule in 1911. Armed
resistance came immediately after the first attempts to conquer the land; Libyan
population joined Turkish armed forces against the invaders. Italian troops never
held a strong grip in the inlands, but had tight control over Tripoli. Italy’s positions
in Libya were weakened during World War I (1914–1918) and the years that followed
the war’s end, until 1922 saw a reemergence of colonial power under the rise of
Benito Mussolini (SHILLINGTON, 2005). The inner deserts were occupied and the
Sanusi-backed1 guerrillas died off. The leader of the armed resistance, Shaikh Umar
al-Mukhtar, was assassinated in 1931.
1
The Sanusi order was an Islamic order founded by Muhammad al-Sanusi (c.1787-1859) in Cyrenaica and
Fezzan which played a big role in the political affairs of the country, eventually establishing political
authority throughout Libya. Organized around the zawiyya units, which were religious and social centers
designed to bring the population to sedentary values characteristic of scripturalist Islam, the order was
vested with economic administration and offered arbitration to settle tribal disputes.
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In 1943, as a result of the developments of World War II, Tripolitania and
Cyrenaica—the northwestern and eastern areas of Libya respectively—went under
British administration, while a French mandate started in southern Fezzan province.
In the following years, Libyan politics was influenced by both internal upheavals,
such as a vocal Italian settler community and the republican versus royalist strife,
and the decline of traditional European powers and the rise of new international
forces—the United States and the Soviet Union—, what culminated in the referring
of Libya’s future as a nation to the then-young United Nations in 1949
(SHILLINGTON, 2005). In accordance with a General Assembly voted deliberation in
19492, the independent Kingdom of Libya was founded in 1951, under the Sanusi
monarch Sayyd Idris.
1.2. THE QADDAFI’S RISE AND THE CREATION OF A JAMAHIRIYA
The first years of Libya as a newly-found independent state were marked by the
lack of an economic spring. Most of the state’s income came from military baseleasing agreements with the United States and the United Kingdom; oil exportation
would only start in 1961. Even though from then on the central government could
accumulate significant wealth, this did not convert immediately into a rise of the
population’s living standards. Political pressure coming from Gamal Abdel Nasser’s
Egypt over Libya’s alignment with great powers along with public discontent over
the national political situation set up conditions for the emergence of political
factions and coup plots (SHILLINGTON, 2005). One of these factions, composed of
twelve junior army officers, eventually seized power in September 1, 1969,
prompting Muammar al Qaddafi, one of their members, to become the new national
leader.
After having seized power, Qaddafi started a series of social conservative reforms
(so as prohibition of alcohol consume), nationalized the petroleum industry, as well
as other big companies installed in Libya and obtained the evacuation of British and
American troops from the country’s military bases. It was the beginning of a
government oriented by an anti-imperialist and pan-Arab philosophy and discourse,
blended with aspects of Islam (WRIGHT, 1981). In 1970, the Egyptian president,
Gamal Abdel Nasser, who had been one of Qaddafi’s greater inspirers, died, and
Qaddafi assumed the pretension of becoming the leader of the pan-Arabism,
formerly represented by the figure of Nassir.
In 1971, Qaddafi the establishment of the Federation of Arab Republics, uniting
Libya, Egypt and Syria, which was approved but could not take place, especially
because of popular opposition. This fact, as a demonstration of the people’s
misunderstanding of his aims, and the need to instill revolutionary fervor into his
compatriots, are believed to have spurred the beginning of the Cultural Revolution
(WRIGHT, 1981), proclaimed by Qaddafi in 1973. It was a quest for forging or
unearthing an Islamic common heritage and for reestablishing its traditions, as well
as applying Qaddafi’s political system. The prescriptions for the revolution were
spelled out in his Third Universal Theory—a name that referred to the opposition of
2
United Nations General Assembly Resolution 289, On the question of the disposal of former Italian
colonies. General Assembly Fourth Session, November 21, 1949.
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both capitalism and socialism, and the aim of forging an alternative to them. These
prescriptions were then gathered in The Green Book—first published in 1975—,
written in a simple and direct style, in order to spread Qaddafi ideology among the
Libyans, and therefore, be an instrument of the Cultural Revolution (CIA, 2011). The
Revolution comprised five areas of reform: the annulment of all monarchical regime
laws and their replacement by the Sharia 3; the repression of all who opposed or
resisted the revolution; the distribution of arms in order to form a popular force of
protection to the revolution; administrative reform, eliminating abusive
bureaucracy and corruption; and, supporting all previous, the promotion of an
Islamic thought.
After four years of harsh social transformation, in 1977 Qaddafi finally instituted
the political system proposed in his Green Book. He managed to dismantle the
traditional legal-bureaucratic government and established the people’s authority—
Jamahiriya or State of the Masses—changing Libya’s name to the Great Socialist
Popular Libyan Arab Jamahiriya. The main instrument of this form of government is
a range “people’s committees”, which within a few months could be found all across
the country. These committees unite in what is called a General People’s Congress to
elect the government cabinet: the General People committee. The formal head of
state is the cabinet leader, the General People’s committee Secretary General.
Gaddafi was the first cabinet leader, from where he started his reforms. By now, he
does not hold any formal government post, nut he holds de facto power (CIA, 2011).
Therefore, international critics dismiss his leadership as a military dictatorship,
accusing him of repressing civil society and ruthlessly crushing dissidents (JANE’S,
2009). Internationally, sustaining his defiant philosophy, Qaddafi started being
accused during the decades of 1970 and 1980 of supporting rebel groups worldwide,
such as the ETA, the Basque separatist group in Spain, the FARC in Venezuela and
the IRA in Ireland. He also holds extreme views on how to settle the IsraeliPalestinian conflict, opposing the peace talks of Camp David (1978), what has been
widely criticized by the international community (WRIGHT, 1981). By contrast, with
his neighboring countries in Africa, the Libyan leader started an approaching
strategy that would culminate in the foundation of the African Union (1999).
Among all Qaddafi’s alleged involvements with rebel groups’ actions, two gained
special relevance in the international relations of Libya. The first was in 1986, when
a nightclub in Berlin was bombed, killing two American soldiers. As a response, the
United States made air attacks over the Libyan cities of Tripoli and Benghazi—killing
35 civilians—and imposed sanctions that remained active until 2004. The second
involvement was with the Lockerbie terrorist attack, in 1988, when an aircraft
operating a commercial flight from London to New York was exploded over
Scotland, killing 270 people. During many years Muammar Qaddafi has denied
involvement, not deterring, however, the international condemnation of Libya,
3
ISLAM is said by its believers to be not only a religion, but a whole socio-political system. Within this
system, Sharia is what we refer in western terms as Law. Nevertheless, it reaches far beyond Law, rather
constituting the “Whole Duty of Man”, that is: the habits, duties, system of thought, and also what is right
or wrong for the muslim. Sharia is considered to have a divine, and therefore, unquestionable foundation,
once it emanates from the two sacred muslim books—the Qu’oran and the Sunna (KHADDURI, 1995).
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represented by the United Nations status as a pariah State and the UN sanctions
(UN, 1992), which lasted from 1992 to 2003.
2.1. CONTEMPORARY BACKGROUND
2.1.1. THE END OF THE SANCTIONS AND RAPPROCHEMENT WITH THE WEST
In September 2003 the United Nations Security Council finally lifted decade-old
sanctions imposed against Libya, after Tripoli recognized the responsibility for the
actions regarding the Lockerbie aerial incident and agreed to pay up to 10 million
dollars each to the families of the 270 victims. However, the sanctions, which
included a ban on military sales, air communications and certain oil equipment, had
already been suspended by the Council in 1999, after Libya agreed to hand the two
nationals in connection with the bombing for trial before a Scottish court sitting in
the Netherlands. The economical damage from the sanctions was considerable;
Tripoli estimated that it had caused USD26.5 billion in economic losses, about half
from the oil sector. The repeal of the sanctions led to a surge in European
investments in the country. Thus, Qaddafi has made significant strides in
normalizing relations with Western nations since then.
In addition to that, in December 2003 Libya publicly disclosed its weapons of
mass destruction program and agreed to the monitoring and disposal of all
equipment and munitions under UN, US and UK supervision. Accordingly, unilateral
US economic sanctions imposed in 1986 were lifted in April 2004, but the
technological embargo which restricted Libyan civilian aerospace sector remained
in force until September 2004. In that same year, the World Trade Organization
began accession talks with the Libyan government 4. These actions opened the way
for US companies to return to the country—mainly through major investments in
the oil sector—, as did the restoration of full diplomatic relations with Washington
in May 2006. In June of the same year, the United States rescinded Libya’s
designation as a state sponsor of terrorism, and the full restoration of diplomatic
ties between the two countries was completed. In sum, the return of foreign
investors, the lifting of the sanctions and the removal of Libya from the US State
Department of the list of countries sponsors of terrorism seemed to be the final
stage in Libya’s reorientation from a “rogue” state to a strategic and commercial
partner of the War on Terror.
Consequently, Libya has benefited from the aforementioned actions. Following
the lifting of sanctions, several countries have been lining up to sell arms to Libya
and take part in the country’s oil exploration and trade. Besides that, relaxation of
the arms embargo was specifically designed to allow Libya to upgrade its coast guard
and border surveillance capabilities to impede the flow of migrants into the
European Union. Therefore, the United Kingdom and France, besides the Russian
Federation, have shown a keen interest in supplying Libya with defense equipment.
France and Libya signed a number of defense deals during 2007 (JANE’S, 2009).
4
Libya currently has observer status in the WTO.
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Additionally, as part of its attempt to prove to the international community that
it had been changing its attitude towards human rights, the Libyan government
allowed Amnesty International to visit the country for the first time in over a
decade, in February 2004. In May 2010, Libya became a member of the UN Human
Rights Council, while Qaddafi assumed the chairmanship of the African Union for
that same year.
Internally, however, Qaddafi faced numerous problems as the population became
increasingly frustrated by ongoing socioeconomic situation. These included a high
unemployment rate and the burden of a state sector. Qaddafi announced in March
2008 that he intended to abolish the administration and distribute the country’s oil
wealth directly to the population. However, this announcement had little impact,
and there was no public confidence that they would indeed benefit from it. In the
past, Qaddafi was able to blame Libya’s economic woes on UN and US sanctions. This
excuse was no longer valid, and the regime had to find a way to manage the
potential for increased social unrest. Therefore, the regime continued to rely on
security measures (JANE’S 2009, p. 5).
2.1.2. 2011 DEVELOPMENTS
As previously stated, the Libyan population had been becoming increasingly
frustrated by ongoing socioeconomic problems, which include an unemployment
rate of 30%. State sector wages have not increased since the early 1980s, despite
promises to review public sector employment—which hired approximately 13% of
the Libyan population—in 2007 (JANE’S, 2009). The population is restless as prices
continue to rise and wages do not follow that increase. The regime would have to
find a way to manage the potential for increased social unrest—such as the one
which broke out in Benghazi in February 2006 and the current one (JANE’S, 2009).
Despite repeated assertions by the regime that it intends to regenerate the
economy in order to create jobs in the private sector, it appears that for the time
being it is continuing to rely on security measures as a means of maintaining a strict
control of the population. In line with that, although high international oil prices
and new investment since 1999 have inflated government revenues, the benefits are
not reaching the majority of the population (JANE’S, 2009).
This February in the wake of popular uprisings in Tunisia and Egypt (that put an
end to these countries’ long-established regimes) and other Arab countries, what
started as a manifestation for better life conditions in Libya rapidly turned into
widespread fighting for the control of the country. The antigovernment peaceful
manifestations against Muammar Qaddafi began in Benghazi, part of the Cyrenaica,
by protesters angered by the arrest of a human rights lawyer. The protesters called
for Qaddafi to step down and for political prisoners to be released. The turmoil
intensified and the demonstrators took control of the city. By February 20 the
unrest had spread to the capital, Tripoli, where Libyan government began using
lethal force against demonstrators (ENCYCLOPEDIA BRITANNICA, 2011). As the
movement anti-Qaddafi acquired weapons, the conflict began to take the form of an
armed rebellion. These newly armed rebel forces were able to expel most troops
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loyal to the government from the eastern portion of Libya (Cyrenaica), but the proQaddafi paramilitaries continued to hold the city of Tripoli.
As violence continued, international pressure for Qaddafi to step down
increased. The UN Security Council approved the resolution 1970, which included
sanctions against the regime, imposing a travel ban and an arms embargo and also
the freezing of the Qaddafi family’s assets (UNSC, 2011a). The United States, the
European Union, and a number of other countries also imposed financial sanctions.
The mark of the first effort to organize the opposition to the Qaddafi regime was
on February 26, as the National Transitional Council (NTC) was established under
Qaddafi’s former justice minister, Mustafa Abdel-Jalil, to administer the areas under
rebel control. Once the rebels succeeded in taking control of the eastern region of
the country, most fighting took place in the towns around Tripoli and in the central
coastal region. As Qaddafi appeared to gain advantage, the international community
deepened the debate about diplomatic and military responses to the conflict.
States’ massive statements about the concern with the situation in Libya were
crucial for the international community to move forward towards stronger
measures, especially after indications by NATO and other Western countries that
they would not implement coercive measures without approval from regional
organizations. Accordingly, on March 17 the Security Council passed Resolution
1973, which further sanctioned Libya, imposed a ban on all flights in the country (a
no-fly zone) and allowed the use of all necessary measures to protect civilians
within Libya (UNSC, 2011b). Two days after it was adopted, American, French and
British forces launched airstrikes not only against Libyan air force and defenses
systems, but also tanks, armored personnel carriers and other military hardware.
This military operation was called Operation Odyssey Dawn and it was comprised of
a coalition which included, beyond France, the United Kingdom and the United
States, Belgium, Canada, Denmark, Italy, Qatar, Norway, Spain, and the United Arab
Emirates.
President Obama authorized the US Armed Forces to begin the limited military
action enforcing the no-fly zone, and on 24 March, the US announced that it was
transferring command and control of the operation to the North Atlantic Treaty
Organization (NATO). Its mandate remains limited to the no-fly zone although it
could also act in self-defense, in cooperation with other states in the wider coalition.
The coalition of 11 states from Europe and the Middle East initially participated in
the intervention, later expanding to 18, namely with the entrance of Bulgaria,
Greece, Jordan, the Netherlands, Romania, Sweden and Turkey. On 31 March, NATO
assumed official command of the no-fly zone, while air strikes against ground
targets remain in the hands of the coalition. The intervention succeeded in
preventing pro-Gaddafi forces from capturing Benghazi.
Shortly afterwards, Libyan Foreign Minister stated that Libya had decided to
implement an immediate ceasefire and an immediate halt of all military operations.
Diplomatic efforts to resolve the crisis intensified, with an African Union delegation
traveling to Tripoli on April 10 to present a ceasefire plan to Qaddafi. It was,
however, rejected by the rebel leaders on the grounds.
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Meanwhile, anti-Qaddafi forces moved back and forth, unable to make progress
against the army in spite of the international help, but they were no longer in grave
danger. By late May, NATO bombings put the rebel forces back in advantage, which
broke a bloody siege of the western city of Misurata. By August, they were making
territorial gains in the country’s east and west. After six months of inconclusive
fighting, in the night of August 21 rebels surged into Tripoli, facing only limited
resistance.
They are currently trying to restore normality in the capital, while in other parts
of the country Qaddafi’s loyalists continue to fight them. The National Transitional
Council appears to be largely in control of Tripoli and other cities, under the
leadership of the Interim Prime Minister Mahmoud Jibril. Bani Walid, a city located
150km southeast of Tripoli, however, is one of four towns that are still controlled by
loyalist forces; the others are Jufra, Sabha and Sirte (Qaddafi’s birthplace). Despite
the effective ending of Qaddafi’s rule, the rebels have not found him yet or his
family members (one of his sons is supposedly in Niger and another is dead).
Because Qaddafi is missing, it spreads a large degree of uncertainty over the
opposition’s victory.
Another preoccupying issue is the fact that water supplies are critically short in
Libya, with 60% of Tripoli’s 3 million people without water and sanitation (LIBYA,
2011b). Jibril said the international community has high expectations of the NTC
after the fall of the Muammar Qaddafi’s leadership, and funds are vital for it to be
able to meet the basic needs of the Libyan people. The United Kingdom has already
unfrozen the country’s assets which will be handed over to the Libyan Central Bank,
so as to allow immediate humanitarian needs to be met.
The National Transitional Council is reportedly building its foreign relations in
order to negotiate and renegotiate energy deals, as Libya’s economy largely depends
on oil exports. All of the permanent members of the UN Security Council have
recognized it as the legitimate governing authority in Libya, although China and
Russia only did so after the takeover of Tripoli by the rebels. Of the remaining
members, only Brazil has not recognized the NTC. However, the country voted
favorable to recognize the NTC as the proper owner of the Libyan seat at the UN
General Assembly, voted on 16 September 2011. “The resolution giving the NTC
Libya’s U.N. seat was approved by a vote of 114-17 with 15 abstentions, revealing
divisions in Africa and Latin America over who should represent Libya” (LEDERER,
2011). Afterwards, in spite of worries that Libyan rebels could have been
indiscriminately killing black people in Libya, because they have confused innocent
migrant workers with mercenaries (LIBYA, 2011a), the African Union recognized the
NTC as the country’s interim government on September 20, 2011. As of September
30, 2011, the National Transitional Council was officially recognized by 98 countries.
2.2. THE JAMAHIRIYA
The building of the contemporary political system in Libya began with the
instability in the Arab countries in the late 1960s provoked by a nationalist wave in
the region. (FERABOLLI, 2009) Colonel Muammar Qaddafi appeared in Libyan
politics in 1969, when a group of officers, lead by him, conducted a military coup
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against the king. Qaddafi gradually installed a new political system based on an
alternative ideology explained in his Green Book, the Third Universal Theory. This
theory is a mixture of Marxism and Islamic theories and establishes the political,
social and economic basis society shall have to allow people to rule themselves.
Western democracy terms, such as parliament, party, plebiscite and class, are
condemned and another form of democracy is proposed (QADDAFI, 1971).
The Green Book, therefore, establishes the principles for the Jamahiriya. In 1977
Qaddafi renames the country Great Socialist People’s Libyan Arab Jamahiriya. Under
this system, the people are supposed to decide over the country’s every decision
through People’s Committees. Being functionally and geographically based, the
committees were able to become responsible for local or regional administration.
The primary instrument of government is the General People’s Congress, which is
composed by indirectly elected members from Basic People’s Congresses. All people
over 18 are obliged to vote, but there are no political parties. The General People’s
Congress holds both the executive and the legislative powers. Libya has no formal
constitution and its judicial system is based on the Koran.
Qaddafi has no official title in the Jamahiriya, except that of fueling the
revolution. However, the rule of the country rests upon his leadership, his military
group and his tribe (WRIGHT, 1981), as the General People’s Congress delegates
power to him. Many of his family members also have very important administrative
positions, which contribute to his political power over the country. During his rule,
he became known for the titles of Leader of the Revolution and Supreme
Commander of the Armed Forces in 1979 and Supreme Leader in 1990. Through his
formal commitment to the Jamahiriya, he has managed to undermine political
opposition, impeding others to challenge his rule. However, this has not impeded
some political rebels to try to assassinate him due to the civil repression. (JANE’S,
2009)
The security of the country and its Supreme Leader is a responsibility of many
bodies. Qaddafi’s protection rests upon the Revolutionary Guards Corps and the
Green Nuns, or Amazonian Guard, which comprises 40 ideologically-reliable women,
trained to serve as personal bodyguard, being allegedly chosen by the Leader
himself (JANE’S, 2009). The country is also protected by intelligence agencies, the
national armed forces and the People’s Militia, a paramilitary group, which
comprises around 40,000 people (LIBRARY OF CONGRESS, 2005). The compulsory
military service targets both men and women over age, reaching thus a great part of
the Libyan population.
2.3. THE POLITICAL OPPOSITION
The lack of freedom combined with the poor economic and social results of the
military government leads to social unrest, which is the reason for the gathering of
opposition groups. The militarization of the Libyan social relations contributes to
the organization of a political group against the Qaddafi’s regime. However, Libya’s
political system does not allow the formation of an institutionalized opposition. Any
organization with political objectives faces a serious threat against its maintenance
through the Jamahiriya institutions (JANE’S, 2009).
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Political parties were outlawed through the system and the private sector was
extinguished through the collectivization of all economic activities. The only kind of
social organization which is not controlled or outlawed by the state are the tribes,
which play an important role in the regional sphere and are the main form of
resistance (LIBRARY OF CONGRESS, 2005). The Libyan tribes are various and they are
the main form of identification and organization of the people. The division of the
society into opposition and pro-Gaddafi is made through the tribes, with some of
them being privileged through their tribe. Because of the prohibition of political
parties, the opposition groups are usually formed outside Libya, either neighboring
or Western countries, and tend to remain there, as the punishment for anti-regime
organization can be the death penalty.
Libya can be divided into three main areas (Tripolitania, Benghazi and the
Fezzan), which hold very different features and people. Tripolitana comprises the
country’s capital and is where the Qaddafa tribe has the most power, while Benghazi
(or Cyrenaica) is where the rebels form their opposition. While the first two parts
were part of the British protectorate, Fezzan was part of the French. The differences
between the regions come from their different historical development and were
reinforced by the large uninhabited areas between them. Because of the differences
between them, there are beliefs that they will not remain united if Qaddafi is
toppled (JANE’S, 2009).
The biggest internal threat to the government are the Islamic groups, which like
their counterparts in the other North African countries have revived their claims
against the government, because of the lack of respect to their freedom and the
distortion of the Islamic values. Clashes between these groups and the governmental
forces were recurrent. The political branch of this movement is the Libyan Islamic
Fighting Group (LIFG).
The 2011 uprisings have showed the popular discontentment with the
government, beyond the Islamic requests. The LIFG does not play the biggest role
anymore, as a bigger group of rebels emerged in Benghazi. This group gathers a
large contingent of former demonstrators that were repressed during their
manifestations that followed the pattern of their counterparts in Tunisia and Egypt.
The manifestations evolved into armed fight, bringing mother Libyans into the
movement. Because of the historical lack of attention from the government to the
Benghazi citizens, these rapidly joined the battle.
2.4. OIL IN LIBYA
2.4.1. THE IMPORTANCE OF THE OIL SECTOR IN LIBYA
Libya is the African top oil reserve holder (with 3% of the world’s total oil
reserves) and possesses wide untapped reserves and, therefore, enormous potential
for new discoveries, in addition to three quarters of the existing fields that have not
been fully explored yet (Oxford 2010 Business Report). The country is one of the
favorite investment destinations of oil majors, especially since the restoration of
economic ties and the occurrence of new exploration rounds in the recent years.
According to OPEC’s latest report, in 2010 Libya had 43.1bn barrels of proven crude
oil reserves. Oil accounts for the most part of the country’s GDP and export revenues
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and is virtually its growth engine. According to the IMF in 2008 oil accounted for
95% of the export income, 80% of fiscal revenues and 70% of GDP. Libya is also an
essential member and a leader within OPEC, deeply influencing the organization’s
decisions. Furthermore, Libya exports very little but oil and gas; about 90% of its oil
exports are sold to European countries (JANE’S, 2009).
2.4.2. OIL THROUGHOUT LIBYAN HISTORY
Within two years of independence a Minerals Law was enacted which permitted
the allocation of preliminary prospecting permits to foreign oil companies. Eleven
major international companies obtained permits. Drilling operations were not
allowed, and the areas awarded for prospecting were not exclusive. In June 1955 the
first Libyan Petroleum Law (that would be revised and replaced ten years later),
which declared that all sub-surface minerals were state property and established the
rules under which concessions could be awarded, was published. The intention was
to encourage an open-door policy in regard to exploration and to develop a
competitive attitude between companies, preventing major oil companies from
gaining a position from which they could exercise effective control over the Libyan
oil industry. The subsequent period, from 1959 to 1961, consisted then in the
formative years of the Libyan oil industry.
In June 1967 the Six Day War between Israel and its Arab neighbors led to the
closing of the Suez Canal and an embargo by Arab producers on oil exports to
western countries. In 1968 following the lead of several Middle Eastern countries,
Libya began negotiations to set up a new type of joint venture exploration
agreement. To achieve this objective the Libyan government established a national
oil company, the Libyan General Petroleum Corporation (Lipetco). Rapid progress
was made in the three years following adoption of the 1965 Petroleum Law.
Production increased steadily, putting Libya amongst the top ten oil producing
countries (PARRA, 2004).
After Qaddafi seized the power, the new government made it clear that existing
agreements with foreign oil companies would be honored, and that there was no
intention of nationalizing the Libyan oil industry. There was supposed to be no
spectacular change in oil policy, though the interests of the Libyan people would be
safeguarded by more effective control over operations (PARRA, 2004).
One of the first priorities of the new government was, therefore, to negotiate the
withdrawal of British and American forces from Libya. Agreement was reached and
British forces were withdrawn by March 28, and the American evacuation of the
Wheelus Field5 was completed by June 30, 1970. Henceforth British and American oil
companies would no longer shelter under the protection of their respective armed
forces. The new government was anxious to secure a more equitable posted price for
oil produced in Libya, and when negotiations failed to make significant progress the
government responded by imposing firm production cuts, the nationalization of the
marketing of oil products in Libya and a port tax on all oil shipped from Libyan
ports.
5
The Wheelus Field was a United States Air Force base established in Libyan territory since 1943.
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The Arab-Israeli conflict of October 1973 had profound consequences on the
Libyan oil industry. The Libyan government made production cuts and embargoed
oil shipments to the United States and the Netherlands. In June 1973 the
government nationalized the assets of many companies and signed joint venture
agreements with others. As a result of these measures the government controlled
approximately 70% of production (HALLETT, 2002). The government was alarmed by
the decline in exploration and development drilling and in an effort to stimulate
new exploration the government abandoned the joint venture licensing system
begun in 1968, in favor of a new system of concessions based on explorationproduction sharing agreements, the EPSA I.
The successes of 1974 marked the end of the Libyan government’s campaign to
take control of the upstream end of the domestic oil industry 6. By the end of that
year they had essentially achieved their objectives. Oil shipments to the United
States were resumed at the beginning of 1975, but the economic recession following
the Arab-Israeli war led to a reduced demand for oil and hence a fall in the price of
Libyan oil. Thereafter prices slowly recovered and remained stable during the next
four years. Production in Libya gradually increased, with a marked increase in
offshore drilling.
By late 1978 political events were again threatening to affect the relative
stability of the last three years. In September 1980 Iraqi troops invaded Iran and
OPEC’s pricing structure collapsed in turmoil. During 1981 Saudi Arabia flooded the
market with cheap oil and the price stabilized. By October it was hovering
uncertainly at $32 per barrel (HALLETT, 2002), but the threatening political situation
led to a general recession and prompted a gradual move by Western governments
towards alternative fuel sources. An oil surplus developed and the oil price
progressively fell.
Relations between Libya and the United States continued to deteriorate,
provoked by Libya’s support for anti-American causes. In 1978 the USA imposed a
ban on the sale of aircraft and electronic equipment to Libya and in 1981 they asked
all US citizens to leave the country. As a result of these pressures ESSO decided to
close down its operation in Libya. Their assets were transferred to NOC in January
1982 in exchange for modest compensation. Three months later the United States
imposed an embargo on the import of Libyan crude and placed further bans on
exports to Libya.
Instability continued through 1983 and 1984 as the Iran-Iraq war intensified and
OPEC’s market share fell as Western countries reduced consumption and switched to
more accessible North Sea oil. Oil price fell rapidly from 1985 to 1986 and the effect
on exploration was acute, as companies cut their budgets and shut down their
exploration programs. Libya’s response to this was to advocate reduced quotas for
OPEC producers. Several companies gave up acreage in 1979, forming the basis for
6
Since 1970, Libya’s oil industry has been run by the state-owned National Oil Corporation (NOC), that
replaced the Libya Petroleum Company (Lipetco). Today, the company, along with a great number of
smaller subsidiaries, including the Arabian Gulf Oil Company (Agoco), the Waha Oil Company (WOC) and
the Sirte Oil Company (SOC), is engaged in exploration and production agreements with many foreign
companies.
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EPSA II. Its terms were significantly less favorable to foreign operators than those of
EPSA I. Nevertheless many companies showed an interest in the new blocks on offer,
but exploration remained at a disappointingly low level.
The oil-price collapse of 1986 had the effect of forcing both OPEC and non-OPEC
producers to cooperate in limiting production. OPEC producers established much
tighter quotas on member states, and non-OPEC producers introduced voluntary
production limitations. Another crisis erupted in August 1990 with the invasion of
Kuwait by Iraqi forces, and the subsequent panic forced oil price up during the
autumn of 1990.
In 1984 Britain severed diplomatic links with Libya following the shooting of a
policewoman in London, and in 1986 the United States government also broke off
relations. Extensive trade sanctions were imposed by the US government on Libya,
and in April of that same year US airplanes bombed Tripoli and Benghazi in unlawful
reprisal for terrorist attacks in Europe. In June 1986 a Presidential decree ordered US
companies to close down their operations in Libya and made it unlawful for US
citizens to work in the country. The combined effect of sanctions, low oil price and
the cost of a governmental project led to the government introducing new and more
attractive, production sharing contract terms in 1988, under the name of EPSA III.
The UN sanctions of 1992 were to cost Libya more than $24 billion dollars,
including $5 billion dollars in lost oil revenues. The years 1992 to 1999 were difficult
for the Libyan government. Exploration activity picked up to a small extent as
companies evaluated the acreage awarded under the EPSA III regulations, with
wildcat drilling averaging about 25 wells per year. The sanctions had a severe effect,
particularly on the activities of the state-owned companies, and several field
developments were transferred from state companies to foreign operators. OPEC
production increased in the wake of the Gulf War. This last increase coupled with
economic recession in the Far East led to a price collapse.
The depressed state of the industry in Libya during the 1990s and the price
collapse of 1998 may have influenced the government’s decision in April 1999 to
hand over the Lockerbie suspects for trial (JANE’S, 2009). In response the United
Nations suspended the sanctions which had been applied in 1992, and Britain reestablished diplomatic relations with Libya in July 1999. Towards the end of 1999 the
Libyan government designated extensive new areas for licensing, both onshore and
offshore in an effort to stimulate exploration. A number of companies, mostly from
Europe and Canada, entered into negotiation with NOC on several of these areas
(HALLETT, 2002).
The lifting of US unilateral sanctions in September 2004 also opened the way for
US companies to return to the country, as did the restoration of full diplomatic
relations with Washington in May 2006. Unlike their European rivals, these firms
benefited greatly from the long-awaited EPSA IV licensing rounds, as well as Asian
companies (JANE’S, 2009).
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3.1. UNSC ACTIONS
On February 26, 2011, welcoming the condemnation of the serious violations of
human rights and international humanitarian law being committed in the Libyan
Arab Jamahiriya made by the Arab League, the African Union and by the Secretary
General of the Organization of the Islamic Conference, the United Nations Security
Council Resolution 1970 was adopted, through a unanimous 15-0 vote. The
resolution recalled the Libyan authorities’ responsibility to protect its population.
Furthermore, the document imposed practical actions: referral of the situation to
the International Criminal Court (ICC); arms embargo—the first Chapter VII of UN
Chart enforcement measure upon determination of a threat to the peace—; travel
ban, to avoid negative humanitarian effects on the rest of the population; and asset
freeze, aimed at designated individuals. The Libyan government officially rejected
the United Nations Resolution and expressed “deep regret” over the position of the
UN Security Council, according to an official statement released (XINHUA NEWS
AGENCY, 2011).
On March 17, 2011, the Security Council adopted a new resolution, SCR 1973, this
time with a 10-0 vote and five abstentions by Brazil, China, Germany, India and the
Russian Federation. The five abstaining countries voiced their preference to seek a
peaceful solution instead of military action. Through this resolution, the Security
Council imposed a ban on all flights in the country’s airspace, a no-fly zone, and
tightened sanctions on Qaddafi’s regime and its supporters. The Council authorized
Member States, acting nationally or through regional organizations or
arrangements, to take “all necessary measures, […] to protect civilians and civilian
populated areas under threat of attack in the Libyan Arab Jamahiriya” (UNSC, 2011b,
p. 3, §4). However, it also excluded a foreign occupation force of any form on any
part of Libyan territory, and requested member countries to immediately inform the
Secretary-General of measures undertaken under article 4 of the resolution (UNSC,
2011b).
The UNSC’s legal ground to impose both sanctions on Libya—besides the
recognition that the situation was a threat to international peace and security
(under Chapter VII of the UN Charter)—was the principle of the Responsibility to
Protect (R2P). It states that the international community has the responsibility to
protect civilian populations from massive violations of their human rights,
including genocide, war crimes, ethnic cleansing, and crimes against humanity,
whenever the host state has proved itself unable or unwilling to protect them
(EVANS & SAHNOUN, 2002; JENTLESON, 2007; WELSH, 2008; BASTOS; BRAGA, 2009).
Thus, since the Libyan government had proved itself unwilling to protect its
civilians—as demonstrated by the air strikes perpetrated by the government against
demonstrators—, sanctions and military actions would be justified according to the
R2P principle.
Recently, a UN special advisor in Tripoli affirmed that Libya’s election process
needs to begin soon and that proliferation of weapons is a major concern in the
country (LIBYAN, 2011). Moreover, it is being discussed the UN’s future role in the
country, while adequately responding to the rapidly changing situation in the
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country (LIBYA, 2011c). Some of the issues of concern for the Security Council in the
short term are today: Its “role in ensuring the territorial integrity of Libya” and
“preventing any ensuing large-scale civil war”; “determining the UN role in postconflict”; “minimizing the humanitarian impact of the conflict”; “the delivery of
humanitarian assistance”; and “the need for the coordination of efforts of various
stakeholders and other international bodies in a post-Qaddafi Libya” (LIBYA, 2011c).
In a longer-term UNSC’s concerns consist of:
subsequent UN support in the areas of security and the rule of law,
economic recovery, constitution-making and the electoral process,
human rights and transitional justice as well as addressing justice and
impunity issues in a post-conflict Libya (LIBYA, 2011c).
Hence, the Security Council established the United Nations Support Mission in
Libya (UNSMIL) on September 16. The purposes of the mission, which has a mandate
of three months, are exclusively political with no military intents or capabilities.
The mandate of UNSMIL is to assist and support Libyan efforts to:
(a) restore public security and order and promote the rule of law; (b)
undertake inclusive political dialogue, promote national
reconciliation, and embark upon the constitution-making and
electoral process; (c) extend state authority, including through
strengthening emerging accountable institutions and the restoration
of public services; (d) promote and protect human rights, particularly
for those belonging to vulnerable groups, and support transitional
justice; (e) take the immediate steps required to initiate economic
recovery; and (f) coordinate support that may be requested from other
multilateral and bilateral actors as appropriate; (UNSC, 2011c, p. 3–4,
§12).
Finally, the Council is also considering either lifting or modifying the sanctions
imposed by resolutions 1970 and 1973: A stance which can be noticed in resolution
2009.
3.2. UNGA, UNHRC AND ICC ACTIONS
As a response to the popular manifestations against Qaddafi in Libya in midFebruary 2011, the Libyan government engaged heavy military force against
protesters, causing numerous civilian casualties within only a few days. As a
consequence, on February 25, 2011, the United Nations Human Rights Council
(UNHRC) strongly condemned the violence in Libya and ordered an international
inquiry into alleged abuses, while also recommending that the country’s
membership in the UN’s top human rights body be suspended (Libya was elected in
May 2010 to the UNHRC). In a resolution adopted unanimously at the end of a
special session held in Geneva, the 47-member Council called on immediately end of
all human rights violations, stop of any attacks against civilians, and respect for the
popular will, aspirations and demands of its people (UNHRC, 2011a). The resolution
also created the International Commission of Inquiry (ICI) on Libya to investigate
the alleged human rights violations in the country.
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In early March, the United Nations General Assembly suspended Libya’s
membership in the Human Rights Council, the Organization’s pre-eminent human
rights body, expressing its deep concern about the situation in the country.
Consensually adopting a resolution (UNGA, 2011), the Assembly acted on the
UNHRC’s recommendation. The Assembly was charged with taking action, and for
the first time a sitting member of the UNHRC was removed from it on March 3, 2011.
The first report of the International Commission of Inquiry on Libya was released
on June 1. It found that serious violations of human rights and humanitarian law had
been perpetrated by the government, while not excluding the possibility that rebel
forces had also committed them since the situation escalated (UNHRC, 2011b).
Furthermore, on allegations that NATO-led forces had been indiscriminately
targeting civilian areas, the report found no evidence to prove them (UNHRC,
2011b). Finally, the evidence found by the ICI suggested that:
[…] Government forces used excessive force against demonstrators, at
least in the early days of the protests, leading to significant deaths and
injuries. Such actions represented a serious breach of a range of rights
under international human rights law, including the right to life, the
right to security of person, the right to freedom of assembly and the
right to freedom of expression (UNHRC, 2011b, p. 4).
Meanwhile, the ICC, which had opened an investigation into alleged war crimes
by members of the Qaddafi regime in early March in accordance with the referral
made by the UNSC, announced on May 16 that it would seek arrest warrants against
Qaddafi, his son Sayf al-Islam, and the head of Libyan intelligence Abdullah Senussi,
for ordering attacks on civilians in Libya. Many Western countries supported this
decision. Conversely, the African Union said its members would not cooperate with
the ICC’s arrest warrant, arguing that the measure would jeopardize the efforts to
negotiate a peace deal.
Then, in September 19, the International Commission of Inquiry on Libya held
dialogues with members of the UNHRC. At the meeting, the ICI’s representative
stated that indeed that had been reports concerning utilization of rockets—which
may amount to a war crime when used in areas populated by civilians—and Scud
missiles against residential areas by Qaddafi forces (OHCHR, 2011; KIRSCH, 2011).
“While reports suggest that the [Scud] missiles did not cause damage, their use
against cities that had both a civilian population and armed combatants indicates a
failure to direct hostilities only to legitimate military objectives” (KIRSCH, 2011, p.
5). Besides that, it was also said at the meeting that pro-Qaddafi troops had also
supposedly “attacked hospitals in Misrata with tanks and artillery, attacked
ambulances carrying injured combatants and targeted health workers” (OHCHR,
2011). Nonetheless, according to Kirsch (2011) and the OHCHR (2011), the National
Transitional Council had committed human rights violations as well, which can
further destabilize Libya. They are mainly arbitrary arrests:
[…] reports have emerged of the mass arrest of black Africans who are
suspected of being pro-Gaddafi mercenaries. It has been reported that
large numbers of migrant workers from Chad, Mali, Niger, Nigeria and
Sudan have allegedly been arbitrarily arrested by security forces of the
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NTC in Tripoli. There are also allegations that dark-skinned Libyans
have also been arbitrarily arrested and detained. Detainees are
reportedly being held in detention centres throughout the city […]
Many migrant workers have fled their homes for fear of arrest and
detention. […] many have not been brought before a judge to review
the legality of their detention (KIRSCH, 2011, p. 4).
4. BLOC POSITIONS
Bosnia and Herzegovina reinforces its commitment to UNSCR 1973. Bearing in
mind that Bosnia and Herzegovina has been the only country in the present Council
who has experienced the international settlement of a no-fly zone on its territory; it
urged the Council for a proper advancing of not only the risks of action, but also the
risks of inaction. For Bosnia and Herzegovina, in Libya, the risks of standing by seem
greater than those that would be incurred by a careful, graduated and proportionate
response designed to reinforce the primacy of international law and enable the
Libyans to exercise their civil rights and set up a political solution of their own.
Brazil holds a grave concern over the situation in Libya. It condemns violence
and the use of force against civilians and deplores the repression against peaceful
demonstrators. Brazil calls for an immediate end to the violence and for steps to
address the legitimate demands of the population, based on human rights and
international law and regarding the principles of sovereignty, self determination
and independence.
Relations between Libya and the People’s Republic of China have been extremely
cooperative in the latest years. Even though China agrees with the finding of a
solution to the conflict, Beijing does not think that the best approach is to force
coercive measures against current government. For years China had advocated
against the severe sanctions upon Libya over the Lockerbie case, as they inflict
serious damage to the civilians as well. During the 6498th UNSC Meeting China
abstained during the voting over the creation of a no-fly zone, and, according to
their representative, only did not block the resolution due to “the great importance
to the requests of the Arab League and the African Union” (UNSC, 2011e).
The UNSCR 1943 holds full and absolute support by Colombia. As to stop the
violation of human rights and guarantee the civil rights of the Libyans, Colombia
supports a military intervention that is aimed at stopping the civil war and enabling
the people of Libya of settling their own democratic transition. Colombia is always
committed to the defense of freedom, democracy and human rights, the principles
which guide its position about the current situation of Libya.
Even though France had been re-approaching Libya in the past few years and
even making bilateral military deals, Paris has responded energetically to the Libyan
crisis due to its prior diplomatic failures in the Tunisian Revolution and in Egypt.
The very change of the French Minister of Foreign Affairs can be sensed as an
indicator of France’s effort to regain its former diplomatic momentum and restore
its credibility, after recent internal crises and discredit threatened to mar its
reputation. France was, therefore, one of the first countries to formally recognize
National Transitional Council as the legitimate diplomatic representative of the
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Libyan people and a forceful defense of NATO forces military intervention in the
country—in which French troops are actively taking part—since March (THE
ECONOMIST, 2011).
Gabon’s stance on the Libyan crisis aligns with that of the African Union. The AU
has condemned the use of violence against civilians, dispatched a mission to
investigate the crisis and has been realizing ad hoc meetings and panels to address
the situation in Libya. The AU actions took some analysts by surprise as Qaddafi has
provided significant funding to support its budget recently and had been elected to
serve as AU president in 2009. The AU continues to call for the cessation of all
hostilities and to attempt to broker a ceasefire (BLANCHARD, 2011).
Germany seeks a peaceful solution to the conflict and has taken measures to try
to ensure that objective. Its abstention on Resolution 1973 was caused by its
perception of threats to the civilian security in Libya. However, EU sanctions against
the regime are firmly supported by Germany and close relations with the TNC in
Benghazi have been developed, with the establishment of a Liaison Office and the
shipment of humanitarian aid to this region (GERMANY, 2011).
India has developed friendly ties with Libya since the lift of the sanctions. Its
representatives to the UNSC abstained from voting the Resolution 1973, together
with other four countries. Nevertheless, this abstention does not mean that India
disapproves the intervention in the Libyan case, as it can be seen in the approval of
Resolution 1970. However, India had doubts on whether the right approach to the
case was to create a no-fly zone, as the Libyan territorial integrity is one of the main
worries for the Indian representatives (SHRIVASTAV, 2011).
Lebanon strongly endorses UNSCR 1973. It supports the need of the no-fly zone
as to protect Libyan civilians and establish a ceasefire. However, the country by no
means approves of a military occupation of Libya. Lebanon is committed to the
responsibilities taken by the Arab League and it backs the common positions shared
by its other member states as UN action is aimed at easing the conflict and
empowering the Libyan people so as to choose their own future.
Nigeria has stressed the need for consensus with regard to the situation in Libya,
has offered to mediate the crisis and has called for the discussions on a ceasefire and
how it might be handled. Nigerian government has strongly condemned the grave
situation in Libya and the Libyan government’s violations of the terms of UNSC
Resolution 1970 and has supported the establishment of the no-fly zone. The
country has echoed AU and Arab League concerns about the disruption of peace and
the humanitarian crisis taking place in the country.
Portugal supports all the necessary measures taken by the Security Council to
tackle the Libyan situation. Its representatives approved resolutions 1970 and 1973,
as they address “country’s priorities” (UNSC, 2011d). The protection of civilians and
the Libyan territorial integrity are some of these priorities, which Portugal believes
will be assured through the UNSC actions.
The Russian Federation has developed tighter ties with Libya since the lift of the
UN sanctions on the country, some of them regarding military issues. The 2011
tensions led Russia to act in order to solve the problem and protect the civilians,
being indicated by the G8 May 2011 summit to lead, along with UN and AU, the
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peace talks between the government and the rebels. Russia disapproves the
consequences of current NATO’s participation in the conflict, as many civil
casualties have been perpetrated in Libya. Therefore, the Russian Federation
supports the respect of all clauses of UNSC resolutions on the matter. The
participation of AU bodies and territorial integrity of Libya are two main defenses.
South Africa’s action regarding the crisis in Libya has been essentially that taken
in the frame of the AU. The AU has named an ad hoc high level committee to engage
directly with Libyan parties and African governments. This ad hoc committee is
made up of the AU Commission president and of five African Presidents, among
which is the South African President, Jacob Zuma. It is committed to try to find a
solution to the crisis which responds to the legitimate demands of the Libyan people
and has been making important mediation efforts (BLANCHARD, 2011).
The United Kingdom is resolved to continue to enforce Resolution 1973 to
protect the people of Libya. The no-fly zone is a transitional means to protect
civilians and help them meeting their basic needs and to ensure the rapid and
unimpeded passage of humanitarian assistance. United Kingdom holds a strong
commitment to the sovereignty, territorial and national unity, as well as
independence of Libya. It implies a belief that UN action has to support the creation
of conditions under which the people of Libya can decide their own political
solution as how to set the transition from authoritarian to democratic regime.
After the condemnation of the violence in Libya by the United States of America,
in February, President Obama formally reversed the policy of rapprochement that
he and President Bush had pursued with Libya since late 2003. New financial
sanctions were imposed on Qaddafi and other Libyan officials. Militarily, in addition
to US operations in Libya, U.S. forces currently contribute to the NATO-led
Operation Unified Protector (BLANCHARD, 2011). The country has also great
concerns with the humanitarian situation in the Libyan territory.
i.
Does the solution to the conflict depend on a change to UN’s pattern of action
so far?
ii.
Are the NATO’s measures fulfilling their objective of protecting the civilians?
Should a more or less coercive action be taken?
iii.
Can a future Libya be imagined with the maintenance of Qaddafi’s system?
iv.
What role shall the UN play in a post-conflict Libya?
v.
Which measures should be taken in Libya in the short and long term for the
stabilization of the country? What should be the role of the oil sector?
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Chapter 5
WORLD BANK
INTRODUCTION
Created following the ratification of the Bretton Woods Agreement, at the end of
World War II, the World Bank is an association of five development institutions
which seek to provide technical and financial assistance to member countries. The
two main ones are the International Bank for Reconstruction and Development
(IBRD) and the International Development Association (IDA); the others are the
International Finance Corporation (IFC), the Multilateral Investment Guarantee
Agency (MIGA), and the International Centre for the Settlement of Investment
Disputes (ICSID).
The World Bank is composed of 187 shareholders who take part in two main
decision organs: the Board of Governors, which is the ultimate police maker and is
composed by all members, and the Board of Executive Directors, which has specific
duties delegated by the Board of Governors. As of November 2010, there are 25
representatives on the Board of Executive Directors. Each of the five largest
shareholders—France, Germany, Japan, the United Kingdom, and the United States—
, appoints one executive director. The remainder 20 executive directors are elected
to represent each a determined group of countries.
From post-war reconstruction, which was the objective of the International Bank
for Reconstruction and Development, its focus has evolved into assisting middleincome and creditworthy poorer countries to diminish poverty levels and engage in
sustainable development strategies. To that end, the IBRD promotes loans decided
upon by the Board of Executive Directors. Beyond that, the Board is responsible for
creating the Bank’s general policies, stimulating a positive investment climate,
proposing country assistance strategies and financial decisions, as well as providing
support during crisis periods.
Within the World Bank structure, reconstruction is now seen as just a part of the
institution’s framework. Currently, poverty reduction, sustainable growth and
development stand out as the main issues being advanced by the Bank. As a
consequence, the World Bank has become deeply sensitive to matters related to the
aforementioned topics, particularly regarding the achievement of the Millennium
Goals.
In that sense UFRGSMUN’s World Bank proposes a tremendously important
topic: energy supply in Asia. It mixes many issues, such as development,
sustainability and poverty reduction, besides security. Therefore, it is complex
subject which deserves careful consideration by the delegates.
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TOPIC: Energy supply in Asia
Iara Binta Lima Machado, Isadora Steffens, Giovani Bastiani Roggia, Bruno Gomes
Guimarães and Brunna Bozzi Feijó
1.1. THE EMERGENCE OF MODERN ENERGY PATTERNS
If faced with the task of having to trace the most significant events regarding
socioeconomic, political and cultural aspects in modern history one can easily state
the outcomes of the increasing sophistication of the use of energy as one of the
major turning-points. Energy and all the apparatus it moves forward, including
services, facilities and the production of goods is in straight and intimate connection
with the growth and welfare of states and is now a great concern to statesmen and
strategists (SLESSER, 1978).
Societies were not always dependant on fossil fuels and electricity. Until the
outbreak of the industrial revolution during the 18th century, labor energy needs
were satisfied by man and animal power while heat and cooking were supplied by
timber and, to a lesser extent, coal. The technological novelties introduced by the
Industrial Revolution set the basis for a myriad of energy-consuming technological
inventions that soon spread from the United Kingdom to its counterparts in Europe,
the United States and eventually the world, providing the background for the
unprecedented economic growth that would follow. At the center of these new
technologies and economic growth was a fossil fuel, coal (HOBSBAWM, 1996;
SIDDIQI, 2008).
Although most of the routine energy needs were still supplied by animal power
for more than a hundred years after the industrial revolution (THOMPSON, 1966),
for the first time the use of energy became the engine for economic growth and
social development, a pattern that would persist until the present day.
From 1860 onwards the European Continent (and the United States) underwent a
new phase of science-based technological revolutions known as the Second
Industrial Revolution. By introducing electricity and the internal combustion engine
the Second Industrial Revolution brought about a major change not only to the
production sphere but also to the daily domestic life 1, consolidating the symbiosis
between modern life and energy (HOBSBAWM, 1977). The use of fossil fuels before
restricted to the production of goods, minor rudimentary heating and illumination
systems and steam-powered transportation now penetrated all spheres of the
common citizen’s life. Modern life and energy patterns became so closely related
that one could not be sustained without the other.
Such changes, however, did not occur everywhere at the same pace. Faced with a
long distance from the major centers of development and subjugated by imperial
powers, Asia was unable to close in the technological and economic gap separating it
from the West. Changes in land use, for instance, that took place several centuries
1
And to the energy patterns, since the combustion engine can be considered to be the main sole cause for
the surpassing of coal by oil as the most important fossil fuel.
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ago in Western Europe and the United States are no more than one century old in
Asia. A similar relation exists regarding large-scale industrialization. Already a
three-century old process in Western Europe and the United States, in Asia it can
only be traced back to late 19th century in Japan and to the last 30 years in the rest
of the continent (SIDDIQI, 2008). As consequence, the energy patterns long present
in the West are a novelty in the continent.
This late development of industrial structures – thus also energy demand coupled with the ascension of Japan and the spectacular economic growth of the
Asian Tigers, China and the broader Asia-Pacific during the last few decades (and the
consequent explosion of energy demand) will have important consequences to the
efforts faced by the region to secure its energy supply and adequate it to world
standards and the contemporary environmental challenges (SIDDIQI, 2008).
1.2. ASIA ENERGY DEMAND GROWTH AND CONTEMPORARY ENERGY RELATED ISSUES
Up until the mid 20th century, the extensive economic growth and its
correspondent models were based under the assumption that energy demand could
be increased almost indefinitely. World reserves of fossil fuels were abundant if
compared to consumption rates and there was little reason to assume that economic
and strategic goals could be threatened by relative scarcity of fossil fuels.
It is true that oil (and coal) supplies’ strategic importance had already been
demonstrated during World War I and II. However, by then oil geopolitics was still
concentrated on merely securing energy supplies. It was not until the 70’s that the
global dimension of energy supply and demand would be felt. The so called “Oil
Crisis” of 1973 and 1979 demonstrated how a relatively small disruption on oil
supply could have severe economic and strategic implications. The 1973 crisis, an
OPEC driven cut of merely 5% on oil supply aimed at countries that supported Israel
during the Yom Kippur war caused oil prices to increase sharply from U$ 2.48 in
1972 to U$ 11.58 in 1974, on money of the day (BP, 2011b) 2. The economic
consequences of having a fourfold increase on oil prices, a fuel that served as an
important input to all major economic activities, could hardly be underestimated.
An economist and also a contemporary witness of the events, Slesser stated that:
The 1973 oil price rise appears to have caught practically every
forecaster by surprise. […] The only explanation can be that there were
factors in the equations of supply and demand which the methods of
forecasting failed to take into account. In the energy scene up to 1973,
supply was not a factor that many people worried about (SLESSER,
1978, p. 4).
This abrupt realization about the relative scarcity of oil supply resulted later in
the creation of the International Energy Agency (IEA) in 1974 and the start of
comprehensive data analysis regarding the size of the world actual proved reserves,
energy production and energy consumption. Indeed, data available on energy
2
British Petroleum Statistical Review of World Energy, available at www.bp.com/statisticalreview. The
statistical review is an excellent source for historical energy production, consumption, proved reserves
and pricing.
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demand and production started to be measured on an extensive and globalized basis
only during the 1970s.
The oil shock raised questions about national and global level dependence on
finite fossil fuels, with important consequences to energy security policy. Level of
self-sufficiency and strong links with oil suppliers, already relevant variables to
energy security before the 70s, redoubled their importance on statesmen agenda
from there on. However, that was not all. Recent developments on energy security
policy started to gain relevance. The diversification of suppliers was one of them:
when counting with a high number of fuel or electricity suppliers a state would be
better protected against eventual prospects of trade disruption with one of them
(THAVASI & RAMAKRISHNA, 2009). Similarly, by diversifying its energy matrix and
avoiding concentration on one single kind of fossil fuel a state would be better
equipped to deal with instabilities or permanent decay on the international market
conditions of its dominant imported fuel (IEA, 2007a). Furthermore, the prospect of
relying to a higher degree on renewable sources of energy started to look more
appealing, since these do not face scarcity concerns and depend very little on the
international level (THAVASI & RAMAKRISHNA, 2009).3 Another landmark
development on energy security policy was the understanding that improving
energy efficiency would ensure the best use of the available fossil fuel supply and
increase the lifetime of existent national and global energy reserves (KIM, 2010).
These issues were given little importance prior to 1973, when they took the
forefront on energy security policies. They faded away in the late 80’s only to
emerge again in the 21st century, as strong economic growth and the rise of
emergent markets (China, ASEAN and India among them) coupled with falling oil
production in OPEC countries threatened with oil shortage signaled for future price
hikes (SCRASE & MACKERRON, 2009).
Another important development on the patterns of energy use arising in the
1970’s was the emergence environmental question. Today’s discussion on
environmental issues is centered on the greenhouse gas (GHG) emissions by fossil
fuels, with obvious consequences to the patterns of energy use and development.
However, this was not always the focal point of the discussion. On its origins, it was
a very different one.
Scrase and MacKerron, when explaining the origins of the relation between
environmental and energy security policies, stated that:
The debate about the sustainability of the modern energy economy
began with concerns over nuclear waste, resource depletion and ‘acid
rain’, and has become more urgent over the last 20 years as a result of
growing understanding of the nature, causes and consequences of
climate change (SCRASE & MACKERRON, 2009, p.5).
Human provoked environmental issues were originally debated on a global level
at the 1972 Stockholm Conference on Human Environment. During conferences, the
focus would be gradually changing to gradually GHG emissions, raising the profile of
3
Indeed they might depend to some extent on external sources only when obtaining the technology,
building the plant or substituting old or exhausted components (such as photovoltaic cells).
157
the environmental question. The discussion culminated on several landmark
agreements, such as the United Nations Framework Convention on Climate Change
(UNFCCC) treaty, the Kyoto Protocol and the Copenhagen Accord at the 15th
Conference of Parties to the UNFCCC. The environmental question attained
throughout the years a high profile and is here to stay as a highly influential issue
on energy policy (SCRASE & MACKERRON, 2009; IEA, 2007a).
As consequence, energy policies incorporating a GHG reduction component have
become the general norm in most develop countries and to a lesser extent in
developing ones. As discussions on environmental issues developed, concerns
started to be expressed about emergent markets’ emissions, especially regarding the
climate change effect of billions of developing countries inhabitants increasing their
consumption level and their access to energy-intensive lifestyles as their home
economies develop.
During the last decades it has been increasingly recognized that climate policy
and energy policy in fact overlap. There is the possibility of adopting strategies
aimed at enhancing energy security which can also contribute to GHG mitigation
and the transition to a clean fuel economy (SCRASE & MACKERRON, 2009). For
instance, electricity grid interconnection and gas pipelines, generally regarded as
energy security policies, also have the potential to reduce CO2 emissions (APERC,
2001). Improving energy efficiency and the share of renewable fuels in the energy
mix will also have both effects.
The conclusion of the above mentioned developments is that energy security
and climate change became in the last decades the two main drivers for energy
policy. Policy makers now need to devise policies that can deal simultaneously with
these twin problems (IEA, 2007a).
1.2.1. ASIA ECONOMIC GROWTH AND ENERGY CONSUMPTION
In order to access how Asia has been responding to the global energy policy
framework traced above, one must first address what makes East, South and
Southeast Asia so peculiar regarding its energy needs. To answer it shortly, the
regions of Asia now in scope are singular because: 1) They are highly populated,
being home to more than half of the world´s inhabitants; 2) they have experienced
unusually high economic growth rates since the 1970s from a low base-level; 3) their
energy demand is growing steadily at a very high pace and is based on a precarious
infrastructure.
It is widely accepted that growth in energy consumption is both a consequence
and a fundamental contributor to economic growth, especially at earlier stages of
development. That is the case in Asia, as can be noted from Figure 1. Since the early
1970s, Asia-Pacific countries have experienced the highest economic growth rate in
the world (KIM, 2010), raising their share of World’s real GDP from 15.5% in 1970 to
26.6% in 2010. (USDA, 2010). That is a remarkable economic growth. More
remarkable yet is the increase on the World’s Share of Primary Energy
Consumption, from 14.8% in 1970 to 38.1 in 2010 (BP, 2011b).
Although both indicators have risen, energy consumption is increasing at a
higher pace, especially after 2000. The result is an increase in the level of energy
158
consumption per unit of GDP generated (energy intensity). This has to do with the
low base-level of economic development, which tends to benefit a more energyintensive economy. However, this alone doesn’t seem enough to exhaust all
explanations for the region’s increase in energy intensity. A good measure of this
increase hinges upon the coal-based energy policy adopted by the two most
populated countries in the region, China and India. Coal is not only the most carbon
intensive fuel but also the least efficient in electricity generation. Switching to more
efficient oil and especially natural gas power generation plants would have reduced
the energy needed for domestic and industrial purposes and lowered the regional
energy intensity (KIM, 2010).
The option for a coal-based energy sector in led by China and India Asia was
guided not only by the lower price of coal but also by the characteristics of the
region’s fossil fuel reserves. The region is home to 30.9% of global coal reserves and
39% percent of the high quality variety. The region is also responsible for 67.1% of
global coal consumption and 67.2% of production. Coal consumption has increased
by 107% in the region from 2000 to 2010 against an increase of 48% in the rest of the
world (BP, 2011b).
50%
40%
Share of World
Real GDP
30%
20%
Share of World
Primary Energy
Consumption
10%
0%
1970
1980
1990
2000
2010
Figure 1 — Asia-Pacific Share of World’s Real GDP and Primary Energy Consumption
Note: Asia-Pacific area as defined here includes all Asian countries plus Oceania, except for the former
Soviet Union, the Middle East and Afghanistan.
Source: data from BP (2011b); USDA (2010).
It has to be noted, however, that although coal consumption has increased
immensely in Asia during the last 10-year period, it was not the only energy source
to do so. Gas consumption increased by 95.1%, hydro power by 111.1% and other
renewable energy sources by 191%. China and India, in an attempt to change their
energy profile have led the increase in hydro power and renewable fuels. The
Republic of Korea also accounted for part of the increase in the latter (BP, 2011b).
Notwithstanding these recent advancements, Asia-Pacific countries have been
unable to significantly change their energy mix profile, depending two times more
on coal than the world average.
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1.2.2. A BRIEF HISTORIC REVIEW OF ASIA’S ENERGY INFRASTRUCTURE
The Asia-Pacific region has initiated in the early 1970s a period of high economic
and energy demand growth from a very low base-level. As a result, energy
infrastructure which was originally very underdeveloped had to be rapidly
increased, a not so simple task that threatened with the appearance of several
energy related bottlenecks capable of slowing down economic growth and social
development. The high pace of growth in energy demand requires considerable
sums to be invested in energy plant efficiency, electric grid expansion, improvement
and interconnection, rural electrification, renewable fuels and fuel transportation
(i.e. gas pipelines). The resources to do so are seldom available nationally and
private funds are not so easy to come by, although the region has been steadily
opening its power sector to private investment to cover the financial gap (SAHA,
2003).
Energy efficiency has received constant attention from Asian governments in the
past decades (THAVASI & RAMAKRISHNA, 2009). Nevertheless, besides the obvious
cases of Japan and the Republic Korea, the only Asian country in the Asia-Pacific
region that possesses OECDE efficiency standards for power plants is Singapore. The
remaining developing Asia has energy efficiency levels of 29.7% for coal, 39% for oil
and 40.5% for natural gas (ADB, 2009), well below world average. Governments have
concentrated efforts in equipping new plants with the integrated gasification
combined cycle (IGCC)4 system and the combined heat and power (CHP) 5 generation
system, improving power plant efficiency. Meanwhile, investments in modern and
efficient gas-fired plants are being made, especially in the ASEAN region (APERC,
2001; SAHA, 2003; THAVASI & RAMAKRISHNA, 2009).
Another important discussion that has become common place in the security of
energy supplies and GHG mitigation in the Asia-Pacific is the construction of an
international infrastructure for the import and export of natural gas and electricity.
The security of supply, efficiency gains and environmental benefits of gas pipelines
and electricity grid interconnections have driven East and Southeastern Asian states
to actively pursuit this energy policy option (APERC, 2001). In Southeast Asia a
trans-ASEAN gas pipeline project is being concluded in a step-by-step process
through the interconnection of neighboring economies’ gas networks.
As for East Asia, proposals have been made and discussed for years regarding a
gas pipeline connecting the natural gas reserves of Irkutsk (Russia) to Beijing, with
possible ramifications to Japan and South Korea. The long distance between
production and consuming centers in East Asia and the consequent heavy financial
costs necessary for the construction of the gas pipeline, however, contributed for
the project to be abandoned (APERC, 2001). China has successfully constructed a
pipeline along with Turkmenistan and Kazakhstan which entered into operation in
2009, enhancing China’s proportion of natural gas in the primary energy
consumption by 2 to 3%. It is widely accepted that further gas pipeline projects
4
IGCC improve the efficiency of coal, oil or biomass power plants by utilizing the residual gas released
from the burning of fuel to generate additional electricity, increasing plant efficiency.
5
CHP uses the residual heat from the fuel burning to generate extra power, just like IGCC makes use of
gas.
160
could and should be undertaken to improve the natural gas participation in the
Chinese and Indian economies. Financial questions have limited such projects until
now. East Asian countries have instead turned to the import of Liquefied Natural gas
(LNG), a more expensive option, becoming major importers (MAY, 1998). The
problem is that due to transportation costs, LGN prices are higher than pipelinetransported gas, which makes the transition from coal to gas less likely.
A final and very relevant energy infrastructure gap in Asia is closely related to
human development: the access to electricity. Estimations point out that around 799
million people have no access to the electricity in developing Asia, from which 186
million reside in East Asia and 612 in South Asia (ADB, 2009). About 85% of them
reside in rural areas. This issue has long been target of governmental efforts to
extend energy grids to remote areas. Recently, concerns have been expressed about
the environmental impact of the inclusion of this mass into modern energy uses
(SADDIQI, 2008). One of the presented solutions to the problem is the introduction of
distributed power technologies in remote areas, consisting of small-scale renewable
energy generators located near the intended area of use. This is, however, is not
only an efficient solution but also a currently very expensive one, which has been
dampened by the scarce financial possibilities of the region (APERC, 2001).
Overall, in the last 10 years R&D investment on cleaner and more efficient
energy technologies has increased steadily in the Asia-Pacific Region, along with
investment on the infrastructure of the energy sector as a whole, as a way to tackle
both energy security needs and improve the environmental standing of the region
(THAVASI & RAMAKRISHNA, 2009).
1.2.2. ASIA’S RESPONSE TO CONTEMPORARY ENERGY SECURITY CHALLENGES
Asian states’ responses to the contemporary energy security challenges were not
harmonized region-wide but have very important elements in common.
First of all, the diversification of energy supplies has been everywhere the
cornerstone to protect against eventual supply disruptions and the rise of prices.
Most states still rely heavily in fossil fuels, with 90% of participation in ASEAN and
even more in China and India. The two latter, however, have internalized most of its
fossil fuel needs with the production of Coal. The situation is different in ASEAN,
where 60% of the fossil fuels needs come from the Middle East (THAVASI &
RAMAKRISHNA, 2009).
China and India are making major investments on nuclear plants along with
Russian and French partners. Philippines, Indonesia, Vietnam and Thailand have
also revived their nuclear energy programs. Myanmar has recently announced the
construction of a small generator with Russian assistance (THAVASI &
RAMAKRISHNA, 2009). There is no telling whether such efforts in amplifying the
nuclear power generation will persist after the accident with the Fukushima reactor
in Japan.
Nevertheless, most of the countries have recognized renewables as a safer and
more feasible solution to lower fossil fuel imports’ dependence. Investments in
photovoltaics (PV), geothermal energy, wind power, biofuels and hydropower have
been through consistent growth since 2000. China, Japan, South Korea and
161
Singapore are leading the pack in these categories, with the exception of geothermal
energy. Of all renewables, wind and hydropower power have generally been
regarded as the cheaper and low-risk options (THAVASI & RAMAKRISHNA, 2009).
Besides diversification of fuels, Asian nations have dedicated considerable efforts
to increase their economies’ overall energy efficiency and to develop an
international energy network for gas and electricity trade, as mentioned earlier.
Interconnected gas and electric grid networks were seem as one of the favorite
options to enhance energy security in East Asia. Gas pipelines were deemed as the
safest way to secure gas supplies with low operation costs. Electric grid
interconnections are seen to improve the quality of the electricity supply while
increasing its efficiency and providing the possibility of trading surplus local hydro
generated electricity across countries. Existing electricity grid interconnections’
capacity is still marginal, but has been growing steadily in ASEAN countries (APERC,
2001). Gas pipelines have also been successfully developing in Southeast Asia while
several projects are being analyzed for East and South Asia. The ASEAN coordination
mechanism has been particularly useful in stimulating energy network
interconnections. Financing for such projects, however, continues to be a critical
issue (SAHA, 2003) and could benefit from international aid and partnerships.
1.2.3. ASIA’S RESPONSE TO CLIMATE CHANGE ISSUES
During the past 30 years, CO2 emissions by Asian countries have been increasing
due to economic and population growth. The pace of the increase was such that 4 of
the ten largest emitters are from the Region: China, India, Japan and the Republic of
Korea (SADDIQI, 2008). An increase in carbon emissions in face of economic growth
was of course expected, since economic growth and energy consumption have a
strong historical correlation, especially in early stages of development (SAHA, 2003).
Nevertheless, the impacts the growth in Asian CO2 emissions will have over an
already stressed climate have raised widespread concern.
Based on the fact that economic growth and human development lead to
increased energy consumption which in turn leads to higher GHG emissions,
developing Asia countries have refused to compromise with absolute reductions on
their emissions, even in non-binding agreements such as the Copenhagen Accord,
under the argument that economic development and poverty alleviation comes
first. Historically low levels of energy consumption (and consequently GHG
emissions) per capita have helped them to sustain this position (SADDIQI, 2008). 6
However, this doesn’t mean developing Asia did not make any move towards
achieving a cleaner economy and reducing its energy intensity and carbon
footprint. Renewable energy sources are still in an early stage of development
(SADDIQI, 2008), but as mentioned in section 1.2.1., yearly renewables and hydro
power consumption has increased by a factor of 2 and 3, respectively, in the last 10
years.
Efforts towards changing power generation base from oil and coal to gas are
widespread in the Asia-Pacific region, but still limited in regions other than
6
An average american citizen emits four times more CO2 than an average Chinese and 20 times more
than an Indian.
162
Southeast Asia and the developed Japan and South Korea (APERC, 2001). The region
as whole has increased its natural gas consumption by 95.1% in the last 10 years.
Natural gas is a more efficient fossil fuel and has a lower carbon composition,
contributing to mitigate current and future emissions. Furthermore, energy
efficiency, as noted in the previous two sections, is an important part of the AsiaPacific energy policy, with the potential to meet half of the energy needs of the
region (THAVASI & RAMAKRISHNA, 2009). Either with measures directed to tackle
GHG emissions per se or to improve energy security and efficiency, Asia has not
been standing idle in the face of climate change.
2.1. ENERGY SOURCES IN THE 21ST CENTURY
Stating that energy is one of the driving forces in the world today is not
euphemism. Even if its importance has not been properly acknowledged by most,
energy is an underlying component to all activities in human life, be it at the
individual level or within—and among—communities. Across time, several energy
sources have been discovered, and their use has been made possible by the
technologic creations brought about by scientists around the world. As different
concerns took hold of the scientific community, such as climate change and
environmental damage, new sources of energy have been developed. Either largely
in use or still in testing phase, they present a series of different characteristics,
advantages and disadvantages.
Biomass still plays a central role in the lives of many people, especially among
poor populations. It consists of “organic material that has stored sunlight in the
form of chemical energy, such as plants, agricultural crops or residues, municipal
wastes, and algae” (US DEPARTMENT OF ENERGY, 2010) which can be used in
traditional or modern forms. Traditional forms of biomass—wood, straw, charcoal,
dung, among others—are usually used by poor people to provide for their heating
and cooking needs. Generally, it does not constitute a commercial fuel; most of its
consumption is based on female and child gathering across long distances every day
(IEA, 2004). They are considered inefficient and unsustainable, leading to
deforestation from both domestic and industrial usage (GOLDEMBERG & COELHO,
2004). Another major issue arising from traditional biomass is indoor air pollution
which arises mainly from the lack of high quality stoves or chimneys to drain smoke
outside (REDDY, 2000). On the other hand, modern biomass tends to be sustainable
(GOLDEMBERG & COELHO, 2004). As several cases have shown, transportation,
electricity and heating systems can be powered by solid waste, agricultural and
forest residues (GOLDEMBERG & COELHO, 2004). In recent years, biofuels such as
biodiesel and ethanol became more popular in many countries. As such, modern
biomass can be classified as a renewable energy source. Beyond that, they help
diversify energy portfolios, increasing supply security by allowing local production
(GOLDEMBERG & COELHO, 2004; US DEPARTMENT OF ENERGY, 2010).
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Coal, oil, and natural gas—also termed fossil fuels7—have played prominent roles
in energy supply and consumption throughout the last few centuries. According to
British Petroleum statistics (2011b), oil remains the world’s most consumed fuel,
even though it has continuously lost market share over the years. A reasonable
explanation for that might be the fact that:
Petroleum, in particular, spawned unprecedented world-economic
growth because its excess energy—net of the exploration, extraction,
refining and transport processes—was enormous; and because the
energy could be delivered in a highly useful form—a liquid which, due
to its high energy density, could effectively power transportation
(KESSIDES & WADE, 2011, p. 4–5).
One of the main uses for coal has been electricity generation. In 2010, it
accounted for nearly 30% of global energy consumption, with China being
responsible for 48.2% of it all (BP, 2011b, p. 5). Fossil fuels are considered nonrenewable sources since such resources risk depletion over time. Furthermore, they
are the main energy sources to blame for greenhouse gas emissions, with an
expected augmentation in the contribution developing economies can give to these
issue of environmental concern (REN21, 2006).8 Price volatility is also worth
mentioning, as well as import dependence (FLAVIN & AECK, 2005; US DEPARTMENT
OF ENERGY, 2010). Oil spills, such as the Gulf of Mexico case also inspire some
apprehension towards other possible environmental damages caused by fossil fuels.
A cleaner option is natural gas, whose carbon dioxide emissions are lower than
those of other types of fossil fuels (ABD, 2009). Recently, its liquefied version (LNG) is
becoming more popular, even though its continuous spread is dependent on high
levels of technological development and investment (ADB, 2009).
Nuclear energy is largely used for electricity purposes. It is rendered a clean
energy source since it is almost carbon-free (IEA, 2007b). Another advantage is the
low uranium needed to supply electricity (MCFARLAND, 2001). Still, nuclear energy
usage is controversial due to possible diversion of means towards nuclear weapons
development. There is also the issue of nuclear waste storage and its secure
reprocessing and disposal (IEA, 2007b; MCFARLAND, 2001). Notwithstanding these
and other disadvantages, one of the biggest problems posed by nuclear energy is the
prevention of nuclear accidents such as Chernobyl, and, more recently, Fukushima.
This inspires opposition among the general public and it is a matter to be addressed
by governments interested in fostering nuclear power development within their
countries.
On the range of clean energy sources, hydropower has been important for
electricity generation. It presents many benefits to the countries that possess hydro
resources to explore hydroelectricity. First of all, energy supply security is
enhanced, since import dependence is reduced (DOMAN, 2001). Furthermore, energy
system integration can be fostered through shared water courses and joint efforts
7
Fossil fuels are an energy source derived from hydrocarbon or carbonaceous rocks mostly originated
from organic matter through a lengthy process that normally lasts millions of years (AHLBRANDT, 2001).
8
Coal presents the highest levels of CO2 emissions among fossil fuels. Oil and natural gas oxidize other
elements beyond CO2 (FAINBERG, 2001).
164
for technology development. In times of great concern with environmental damage
and climate change, hydroelectricity represents an interesting alternative to
greenhouse gas emissions from fossil fuels (DOMAN, 2001) and is deemed to be a
renewable energy source. Still, some disadvantages can be pointed out such as
population displacement and negative effects on animal life due to the construction
of dams and the flooding it implies (DOMAN, 2001). Droughts can also affect
electricity supply (DOMAN, 2001). The Three Gorges Dam project in China is often
quoted as a great example to both positive and negative impacts. 9
Environmental concerns as well as energy security considerations in general
have pushed countries to seek other energy sources to meet power, transportation,
lighting, electricity, and heating needs. This has spurred investment into the
development of renewable fuels which “capture their energy from existing flows of
energy, from on-going natural processes” (FLAVIN & AECK, 2005, p.14). Through a
series of technology developments they can be put into use in a sustainable manner,
easing the uncertainty that surrounds the usage of already conventional energy
forms, especially fossil fuels. Among the renewable energy sources, wind energy, for
example, has been used mainly for electricity generation through installation of
wind turbines onshore and offshore (IEA, 2008c). Solar energy is also used to provide
electricity, be it by photovoltaic technology or concentrating solar thermal power
(REN21, 2011; IEA, 2009a). Solar heating and cooling is also another application for
sunlight which is directly used for heating and industrial purposes, as well as airconditioning (IEA, 2009b). Another alternative for electricity generation is
geothermal energy which also provides direct heat to space and water heating,
industrial processes, among other services (IEA, 2010d; REN21, 2011). Ocean energy
can also be quoted as a form of generating electricity, even though its technology
development still falls behind that of other renewable fuels (REN21, 2011).
Renewable energy sources in general present several advantages. Generally, they
are carbon free or carbon neutral which implies a qualitative and quantitative
contribution to reduce greenhouse gas emissions worldwide. Beyond environmental
concerns, renewable energy can increase security of supply (CHRISTENSEN et al,
2006) by reducing energy import dependence and consequently making countries
less vulnerable to price fluctuations, for example (US DEPARTMENT OF ENERGY,
2010; FLAVIN & AECK, 2005). Nevertheless, there still exist some barriers to the
enlargement of renewable energy sources usage across the world, one of the most
important being the high initial capital costs to install such energy systems (FLAVIN,
2005). This spurs the need to develop not only efficient technology, but also one
which can be easily affordable even by poor populations.
2.2. ASIA’S ENERGY OUTLOOK
Over the last two decades, the Asian continent has gained notoriety for its strong
economic growth and increasing development rates. Countries that until the 1980s
were not known for fast improvements on living standards, such as China, are now
leading Asia on the path to further development. This, in turn, has led the world to
9
Peter H. Gleick has sought to analyze the project and its implications (GLEICK, 2009).
165
focus on the region’s potential, putting forward predictions of further social
development. Nonetheless, Asia still has a long way to go to surmount a series of
problems which stand on its way and consequently inhibit the region’s progress.
2.2.1. THE ASIAN RESERVES SCENARIO
One of the major issues facing Asia today is energy. Energy runs economies and
therefore is one of the most important components in ensuring development. Asia
holds a considerable share of the world’s energy reserves and energy potential
within its boundaries. However, that is not sufficient to ensure every country
disposes of the necessary amount of energy to run its own economy, since energy
resources are unevenly distributed among nations and certain types of energy are
more suitable for specific activities. Regarding oil reserves, Kazakhstan holds alone
2.9% of total world reserves, a share which almost equals that of the bulk of Asian
nations at 3.3%10, of which only China overcomes the 1% barrier (BP, 2011b). The
contrast to the OPEC members is ever more relevant for those countries alone
account for 77.2% of proven oil reserves (BP, 2011b).
On the natural gas scenario, the bulk of Asian nations possess 8.7% of total world
reserves. Nevertheless, Turkmenistan stands out on the continent being accountable
for a 4.3% share of natural gas reserves (BP, 2011b). Coal is the one primary energy
type where the former group of countries becomes prominent. Even though
Kazakhstan holds 3.9% of total coal reserves, the other nations put together add up
to a 30.9% share (BP, 2011b). The rising powers China and India total 13.3% and 7%
of world reserves, respectively (BP, 2011b). Although an analysis of the amount of
energy resources available in Asia is important to underline the region’s
development potential, this data alone is neither sufficient to determine the future
paths of economic growth nor to highlight the main failures in each country’s
development trajectory.
2.2.2. PROSPECTS ON PRIMARY ENERGY DEMAND AND PRODUCTION11
Between 1990 and 2005, Asia and the Pacific registered the highest annual energy
demand growth rates at 3.5%. This was due to the fast economic growth experienced
by Asian countries during this period, with highlights to China and India. Until
2030, this rate is projected to slow down to 2.4%, but still above the 1.5% expected
10
Former Soviet Union Asian members are excluded from considerations on share of oil, natural gas, and
coal reserves. On the other hand, Australia, New Zealand, Papua New Guinea and Oceania are accounted
for on the data
11
For methodological purposes, most of the forthcoming data under subsection number 2 will be based on
regional divisions from the Asian Development Bank. If that is not the case, there will be specific remarks
to the contrary. The ADB acknowledges six groups: Central and West Asia (Afghanistan, Armenia,
Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkmenistan, and Uzbekistan), East
Asia (Hong Kong, China; the Republic of Korea; Mongolia; the People’s Republic of China; and Taipei,
China), the Pacific (Cook Islands, Fiji Islands, Kiribati, Nauru, Palau, Papua New Guinea, Samoa, Solomon
Islands, Timor-Leste, Tonga, and Vanuatu), South Asia (Bangladesh, Bhutan, India, the Maldives, Nepal,
and Sri Lanka), Southeast Asia (Brunei Darussalam, Cambodia, Indonesia, the Lao People’s Democratic
Republic, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam), and Developed Group
(Australia, Japan, and New Zealand).
166
for the rest of the world12 (ADB, 2009). According to the Asian Development Bank
(2009), by 2030, the developing member countries will present a slightly higher
annual growth rate (2.6%) and will be responsible for 89.5% of the continent’s
energy demand. Energy demand per region should evolve as follows (Table 1):
In that scenario, even though coal’s share on energy demand will be reduced 13, it
will continue to be the most used energy resource in Asia, growing an average 2.1%
per year, being mainly used for power generation. In second place, comes oil,
growing at an annual 2.2% and maintaining a 27% share (ADB, 2009). China will be a
major contributor to growth rates in Asia and in the world until 2030, directing most
of its demand to the transport and industry sectors (BP, 2011a). Due to its
diminished harms to the environment and the possibility of transporting it in its
liquid format, natural gas demand will grow fast in Asia (3.6% annual rate), but it
will only attain a 14.5% share, being mainly used in the power sector. New and
renewable fuels’ share in 2030 will be of 11.2%, due to biomass and biofuel
production potential in Asia and experiments with new sources, such as wind,
geothermal and solar. Hydro will not attain an expressive share in energy demand,
3% over the outlook period. As for nuclear energy, the prospects are of a 5.1% (ADB,
2009) increase with projects in India and China being put into practice. However, the
recent incident in Japan might affect states’ perceptions on the benefits of nuclear
energy usage.
Increasing demand needs to be met by larger supplies. As mentioned before, Asia
is rich in a variety of energy sources, but their geographic distribution indicates that
many regions need to import a large part of the energy they consume to meet their
demand and attain their development goals. This import increase in some areas will
12
Data refers to primary energy demand (oil, coal, natural gas, hydro, nuclear, and new and renewable
fuels).
13
From 41% in 2005 to 38.3% in 2030 (Asian Development Bank, 2009).
167
in turn be sponsored by suppliers within Asia, such as Central and West Asian
nations, as well as other nations, especially Middle Eastern ones and Russia. In
addition, Africa and Latin America are becoming relatively significant energy
exporters to Asia. Nonetheless, this does not exclude reliance on internal resources
to help fuel the economic and development engines.
Without disregard for their own short and long term needs in primary energy
demand resources, Central and West Asia countries will sustain their position as net
energy exporters, with a forecast of increase in production in Central Asia. Led by
China, East Asia is set to become the greatest energy importer in absolute numbers,
projecting an annual energy import growth rate of 4.2%. South Asia will rank second
place in absolute import numbers, with highlights to India. By 2030, Southeast Asia
will no longer be an energy exporter due to decrease in production from Indonesia,
Thailand, Vietnam and Malaysia and growing natural gas imports in the Philippines,
Thailand and Singapore. This tendency will be visible in oil and natural gas. On the
Pacific, natural gas exports should intensify with production in Timor-Leste and
Papua New Guinea, but imports will be more expressive in oil demand (ADB, 2009).
The situation has led to the development and expansion of intra-regional and
interregional deals among countries, searching to reassure their demand by import.
China, Japan, India, and South Korea illustrate this trend very well as all of them
have sought to pursue deals with countries in Central Asia, the Middle East, the
Americas and Africa to enhance prospects of supply security.
2.2.3. THE ELECTRICITY OUTLOOK
Economic growth and social development are intrinsically correlated to
electricity demand, given the necessity of energy access to further development and
fulfill the material needs of populations. As stated by the International Energy
Agency (2010f), 1.4 billion people do not have access to electricity worldwide. Out of
the current amount of individuals in that deploring situation, more than half of
them (799 million) live in developing countries in Asia, with India alone responding
for 404 million people. China accounts for 8 million and the remainder correspond
to other developing nations14.
Until 2030, electricity demand in Asia and the Pacific is expected to grow 3.4%
per year, with the developing nations growing at an annual 4% (ADB, 2009). The bulk
of the electricity demand in absolute figures will be taken by East Asia, China alone
answering for 84.3% of total regional demand. Nonetheless, it is South Asia, mainly
sponsored by India, which will hold the highest annual growth rates, at 5.5%, against
3.5% in East Asia. Central and West Asia, Southeast Asia and the Pacific are expected
to record an average 3.4%, 4.8% and 4% annual growth in electricity demand,
14
The International Energy Agency (2010f) estimates that an even larger number of people in developing
Asia depend on biomass fuel for cooking (almost 2 billion). Of those, 855 million live in India, followed by
423 million in China alone. The remainder 659 million is spread throughout the other developing nations.
Biomass fuels pose an intrinsic health danger due to air pollution and the breathing of toxic particles
(IEA, 2010c). It is important to note, however, that these differ from the biomass used as renewable
sources for the latter is transformed during the economic energy cycle. It must also be noted that the
available data is in accordance to IEA`s definition of developing Asia. For a listing of countries, please
refer to IEA documents
168
respectively (ADB, 2009). In absolute numbers, the electricity demand per region is
projected to look as follows (Figure 2):
Once again, the energy resources used in each country and region differ
according to availability. Notwithstanding, coal should sustain the bulk of electricity
production, particularly because it is largely used in China and India, two of the
biggest power generating countries. Despite that fact, the need to increase
electricity production and environmental concerns are directing countries
(including China and India) towards exploitation of natural gas as a power
generating resource. Nuclear power is also considered an effective fuel for
electricity, though it presents higher risks in management and it is not entirely
approved by public opinion.
Even though energy generation projections show a large increase in energy
production, this might still not be enough to ensure complete electrification rates
by 2030. For starters, energy production will be unevenly distributed among nations,
with China, India, and Japan expected to generate three-quarters of all produced
electricity in Asia and the Pacific (ADB, 2009). In addition to that, several countries
in Asia face infrastructural problems, not possessing the necessary equipment to
provide electricity to the general population. Much of that is due to shortage of
financial resources. Hence, in order to boost electricity access and supply of primary
energy demand, “the government of a developing member needs to ensure a level
playing field to receive financial assistance from different investors, including
donors through bilateral/multilateral cooperation or international institutions such
as development banks” (ADB, 2009, p. 51). If further measures on that sense are not
taken, the nation’s energy security will be compromised, reflecting on its economic
growth and social development progress.
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2.3. ENERGY AND DEVELOPMENT
2.3.1. POVERTY AND HUMAN DEVELOPMENT
Well into the 21st century, an enormous amount of people still live in poverty and
do not have the adequate prerogatives to achieve high levels of human
development. In Asia, among the myriad of countries that compose this
heterogeneous continent, this statement is equally true. Several of the continent’s
nations present elevated levels of poverty, while only a few have managed to
restrict this problem to a lower percentage of their national population. As such,
this means that a considerable amount of people live under “pronounced
deprivation in well-being” (WBG, 2001, p.15).
According to Haughton and Khandker (2009), the meaning of well-being can be
understood under three approaches. The most traditional view targets poverty
under monetary terms, qualifying as poor the individual who does not have the
necessary resources to account for its needs. The second approach relates to specific
types of goods—shelter, food, education, health care—and if a person is able to
access them or not. At last, the word capabilities arises on the third approach, one
where poverty is multidimensional and encompasses the other two viewpoints.
Poverty is then seen to arise “when people lack key capabilities, and so have
inadequate income or education, or poor health, or insecurity, or low selfconfidence, or a sense of powerlessness, or the absence of rights (…)” (HAUGHTON &
KHANDKER, 2009, p.2–3). Despite all that, the most common statistics concerning
poverty are still measured in terms of economic provisions. As such, extreme
poverty relates to people living with less than $1.25 a day, whereas moderate
poverty encompasses those living under the $2 a day poverty line.
Poverty is directly related to human development since the former has the
ability to undermine—or even prevent—the path to higher levels of the latter.
Human development is also built on a broader notion that extends beyond strictly
economic concerns. It is “about steadily sustaining positive outcomes and
combating processes that impoverish people or underpin oppression and structural
injustice” (UNDP, 2010, p.22). Hence:
Human development is the expansion of people’s freedom to live long,
healthy and creative lives; to advance other goals they have reason to
value; and to engage actively in shaping development equitably and
sustainably on a shared planet. People are both the beneficiaries and
drivers of human development, as individuals and in groups (UNDP,
2010, p. 22).
Human development must, therefore, create conditions to bring people out of
poverty on the long term. 15 Furthermore, it must respect the different settings and
characteristics of each country and the groups within it, giving room for the
flourishing of personal and community values. The breadth of the definition does
15
This analysis does not seek to exhaust all possible links between poverty and human development. The
sole focus is to highlight that both concepts are related. As such, it is important to note that the
attainment of high development levels does not translate into the complete annihilation of poverty.
Nevertheless, it serves as an indicator of the amelioration of objective and subjective conditions in a
given country, region or place.
170
not, however, preclude the recognition that at the core of human development
stand the ideals of high quality education, of decent living standards and of a long
and healthy life (UNDP, 1990, p. 10), all of which pertain to the eradication of
poverty.
2.3.2. POVERTY AND HUMAN DEVELOPMENT IN ASIA
The Asian continent is cut by many disparities. While some countries report low
levels of poverty and have managed to rank high on the development scale, others
still possess the bulk of their population living below poverty line. According to Wan
and Sebastian (2011), Asia and the Pacific region hold 62.78% of the world’s poor,
followed by Sub-Saharan Africa at 32.73%. Nevertheless, an extended research
conducted by the bank on available data on 25 developing member countries 16 has
found that poverty levels have dropped in general on the region, even if the
distribution of such progress was uneven throughout it, the largest decreases
displayed on East Asia largely due to reductions in China. Between 2005 and 2008,
the number of people living under the extreme poverty line—less than $1.25 a day—
has fallen from 903.4 million to 753.5 million, which translates into a decrease from
27.1% of population in 2005 to 21.9% in 2008 (WAN & SEBASTIAN, 2011, p. 5). Even
though China and India accounted for the bulk of reductions—a decrease of 85
million and 29 million people, respectively—, they still remained at the top of the list
on number of poor people. Hence, in 2008, India’s poor reached 426.48 million, while
the Chinese numbered 122.33 million. They were followed by Bangladesh (70.96
million), Indonesia (40.36 million), and Pakistan (29.88 million) (WAN & SEBASTIAN,
2011).
Once the moderate poverty line is considered—those living on less than $2 a
day—the overall number of poor people shows a decrease of 168 million, from 1.80
billion in 2005 to 1.63 billion in 2008. In percentage of population, this translates
into a decline from 54% to 47.4% over the reviewed period (WAN & SEBASTIAN,
2011, p. 9). China and Indonesia showed most improvements, accounting for 92% of
people who overcame the moderate poverty line. If progress can be seen through
data analysis, this must not serve to obscure the fact that in eight out of the 25
countries more than half of the population continues to live under de $2 poverty
line. In India, a staggering 73.28% of the population is classified as poor (WAN &
SEBASTIAN, 2011), evidence which highlights that high levels of economic growth
are not enough to eradicate poverty and bring about human development. The
remainder of countries in the same group is Nepal (75.05%), Bangladesh (74.88%),
Timor-Leste (68.73%), Lao PDR (67.15%), Pakistan (56.43%), Cambodia (56.14%), and
Uzbekistan (52.23%) (WAN & SEBASTIAN, 2011, p. 10).17
16
Member countries under analysis are Armenia, Azerbaijan, Bangladesh, Bhutan, Cambodia, the People´s
Republic of China, Georgia, India, Indonesia, Kazakhstan, the Kyrgyz Republic, Lao PDR, Malaysia,
Mongolia, Nepal, Pakistan, Papua New Guinea, the Philippines, Sri Lanka, Tajikistan, Thailand, TimorLeste, Turkmenistan, Uzbekistan, and Viet Nam, which together account for roughly 95% of the total
population on the Asia and the Pacific region (ADB, 2011).
17
Wan e Sebastian (2011) also present poverty estimates for 2009 and 2010 in their work.
171
2.3.3. ENERGY AS A MEANS OF OVERCOMING POVERTY AND FOSTERING HUMAN DEVELOPMENT
Even if unnoticed, the continuity of present day life is energy dependent. Energy
allows people to warm up their home when it is cold, to eat when they are hungry.
Nevertheless, these services are not attainable with the same degree of efficiency by
all. The direct accessibility of sources, the availability of modern-day technology,
the scale of public and private investment, among other factors, are relevant
variables influencing people’s energetic possibilities. These, in turn, are correlated
with overall levels of poverty and development within society.
Traditional thinking on poverty and human development has paid little
attention to the two-way linkage between both topics and energy; mostly
highlighting the impact development has on energy use (IEA, 2004). As a result, the
inputs energy brings to higher levels of human development and to the eradication
of poverty have been largely overlooked. This situation has begun to shift over the
last years, however, with several international organizations and governments
seeking further enlightenment on the matter. One of the systematic efforts on the
matter to gain notoriety within the international community has been made by the
United Nations Development Programme. According to the UNDP:
Energy services are a crucial input to the primary development
challenges of providing adequate food, shelter, clothing, water,
sanitation, medical care, schooling, and access to information. Thus
energy is one dimension or determinant of poverty and development,
but it is vital. Energy supports the provision of basic needs (…) Energy
also fuels productive activities (…). Conversely, lack of access to energy
contributes to poverty and deprivation and can contribute to
economic decline (REDDY, 2000, p. 44).
Through a series of transformation processes, energy sources are transmuted
into energy services such as lighting, cooking, heating, transportation, among
others, which are essential to ensure that people achieve decent living standards,
education and enjoy a long and healthy life. As such, in seeking energy to provide
for their well being, people are in fact looking for the services energy provides, thus
implying that the sources themselves are less important for immediate concerns,
allowing demand for energy to be classified as a “derived demand” (DIFD, 2002, p. 5).
Thus, the provision of energy services would be the main goal to be achieved by any
given energy system (GOLDEMBERG & JOHANSSON, 1995).18
According to the International Energy Agency (2004), extensive use of biomass
and lack of access to electricity are marked characteristics of developing countries.
Such conditions are explained by a number of factors, among which are the high
primary costs of certain energy technologies and infrastructure to increase energy
provision and efficiency both at the household and national levels. In turn, this
situation has an impact on the availability and quality of energy services and it
contributes to reproduce the condition of energy poverty, one that reports to the
“absence of sufficient choice in accessing adequate, affordable, reliable, highquality, safe, and environmentally benign energy services to support economic and
18
“Energy services are the desired and useful products, processes, or services that result from the use of
energy” (GOLDEMBERG & JOHANSSON, 1995, p. 1).
172
social development” (REDDY, 2000, p. 44). The use of biomass has elevated costs to
those who depend on it. Even if it can be argued that in monetary terms this would
represent a cheap energetic deal, low efficiency and the necessary time to gather
fuel wood, for example, have a great negative impact on people’s lives. Some studies
have showed that an average family can even spend up to 6 or more hours a day
colleting biomass sources to provide for energy services (DFID, 2002). However, one
of the biggest implications concerns the health damages caused by indoor air
pollution, especially on women since they normally carry the responsibility over
household chores. With regards to electricity, on-grid and off-grid systems could
help reduce dependence on kerosene for lighting, increasing efficiency and service
extent.
Ensuring people exit energy poverty has direct and indirect benefits to poverty
eradication and human development (FLAVIN & AECK, 2005). In that sense, the
transition to modern energy fuels and technology, along with the guaranteed access
to electricity would provide people with higher quality energy services which would
have a direct impact on cooking, heating and lighting, for example. Furthermore,
the envisaged benefits of energy service amelioration can be perceived at the local,
national, and even regional and global levels. In terms of economic development,
the amelioration of energy services at the local level can be translated into income
increase and improved productivity from the fostering of new economic activities—
especially micro-enterprise businesses—and agricultural advancement from crops to
consumer markets (DFID, 2002). Nationally, economic prospects are boosted by
industrial growth and the expansion of communication and transportation
networks (DFID, 2002). As a result, regional and global connections can be
established through market creation and augmentation.
Poverty reduction and human development, however, cannot be solely achieved
through economic growth. Immaterial determinants to both topics are also
extremely important to bring about long-term changes and improvements to
people’s lives. Relevant issues on topics such as education and healthcare extend
beyond concerns with the existence of classrooms, hospitals and clinics, as well as
funds to purchase medication and notebooks. The continuity of everyday activity in
such fields is also energy dependent. Schools are not able to function properly
without efficient energy supplies since access to learning materials—especially
digital devices—is hampered. Furthermore, education prospects are diminished if
kids do not have access to lighting at home to study at night. (DFID, 2002).
Healthcare is also damaged by lack of high quality energy services since clinics are
forced to open in reduced hours and cannot store medication and perform several
medical exams (DFID, 2002). The provision of high quality and efficient energy
services would, even if indirectly, contribute to reverse such characteristics of many
areas in developing countries, determining that energy is able to provide an
excellent input to several elements of human development.
In an effort to clarify the relation between energy and development and to keep
track of progress on the transition to modern energy fuels (IEA, 2004), the
International Energy Agency has advanced the Energy Development Index (EDI).
“The index seeks to capture the quality of energy services as well as their quantity”
173
(IEA, 2004, p. 342) and rests on four indicators 19, seeking to mirror the Human
Development Index (IEA, 2004). The EDI’s main contribution, however, goes beyond
the identification of major flaws within energy systems. Even if it is not a perfect
measurement of reality, it provides the foundation for country-specific energy
policies to counter poverty and stimulate development. It is an attempt to capture
the complexity of processes to overcome energy poverty. As a consequence, context
based strategies can be advanced, finally escaping from “one fits all” formulas which
have proved damaging to development and poverty eradication projects in the past.
The EDI for Asian nations in 2010 ranked as follows:
According to the International Energy Agency (2002), there are three basic
determinants to the transition to modern fuels: availability, affordability and
cultural preferences. All three of them concern not only the energy sources
themselves, but also the necessary technology to put them into use. If they cannot
afford a modern stove, for example, households will continue to use biomass in
inefficient ways. Consequently, the transition process might be subject to setbacks
along the way. Such scenario demonstrates that:
The transition from energy poverty to relative affluence is a complex
and irregular process, varying widely from nation to nation, village to
village and family to family. In a general way, it is a journey from
nearly exclusive reliance on traditional biomass to the access and use
19
The four indicators are as follows: “per capita commercial energy consumption—which serves as an
indicator of the overall economic development of a country; per capita electricity consumption in the
residential sector—which serves as an indicator of the reliability of, and consumer’s ability to pay for,
electricity services; share of modern fuels in total residential sector energy use—which serves as an
indicator of the level of access to clean cooking facilities; share of population with access to electricity”
(IEA, 2011b). According to IEA (2004, p. 342), “this is a first effort to produce an index of energy
development. We have decided to introduce it here to encourage thinking about the role of energy as a
contributory factor in development, rather than simply a consequence”.
174
of electricity together with a range of other modern fuels (IEA, 2002, p.
372).
The provision of high quality energy services involves several underlying
dimensions to the determinants quoted above, thus adding to the complexity of the
matter. Before all, it involves the outlining of a specific strategy by a group of
decision makers who must work together to ensure that the continuity and quality
of services over time is consonant with the country’s overall development goals,
providing benefits not only to households, but to nations as a whole. Natural
resource endowment, economic needs, social and political characteristics and
conditions must be taken into consideration. Different countries dispose of different
resources which can be used to provide energy services. China’s large coal
reserves—approximately 13.3% of the world’s total (BP, 2011b, p.30)—might render
this a cost-effective energy source to provide for electricity. Yet, current
environmental concerns and demand projections have constrained countries to
start exploring the potential of renewable energy sources. China is among the
nations which have largely followed this process (REN21, 2011). Nevertheless,
elevated initial monetary costs for several renewable energy technologies have
served to delay the spread of its benefits (FLAVIN & AECK, 2005) Since both sides
present advantages and disadvantages, the better off solution could be a
combination of both, integrating as well traditional biomass in a more sustainable
manner (DFID, 2002).
Population distribution between rural and urban settings is also a relevant factor
for energy policies. Regarding only electricity access numbers, it is possible to
identify a huge disparity between scenarios. Out of the 799 million people lacking
access to electricity in developing Asia, 716 million of them live in rural areas—380
million of which are located in India—while only 82 million inhabit urban
environments (IEA, 2010b).20 These differences might be attributed to the high
connection costs to on-grid systems in remote areas – especially rural ones – since
they often do not concentrate enough population nor consumption patterns to
payoff investments (FLAVIN & AECK, 2005). This suggests that the buildup of minigrid and off-grid systems can constitute an alternative in middle size settlements
and rural areas (IEA, 2002, FLAVIN & AECK, 2005).
Governments must be reliable and committed to a development strategy which
presents effective mechanisms to reduce poverty and foster human development.
Choosing the best energy sources and installations to every particular situation
involves decisions taken at the national level for the most part. Nevertheless, efforts
to ensure long term high quality energy services extend beyond those two aspects.
Despite the divide between rural and urban settings, one general characteristic of
poor environments is the absence of basic infrastructure, increasing communication
and transportation costs for fuels and technology (DFID, 2002). Therefore,
governments need to invest; they should invest not only on roads or school
buildings, but also on greater institutional efficiency, on measures to attract private
20
For clarification as to which countries are included on the aforementioned statistics, please refer to IEA
documents.
175
capital into energy schemes, on local skill building to guarantee operational capacity
of energy systems, on establishing subsidies strategies to different energy sources
than exclusively fossil fuels to accelerate renewable energy sources usage (O’KEEFE,
O’BRIEN & PEARSALL, 2010; FLAVIN & AECK, 2005). Governments should also devise
R&D programmes to develop more efficient energy technology and seek
partnerships to account for technology transfer from developed countries and other
developing ones. All afore mentioned aspects taken together would contribute to set
up a sustainable energy system, one which is able to secure long term access to the
energy services needed to improve human development and poverty eradication
perspectives.21
2.3.4. ENERGY AND THE MILLENNIUM DEVELOPMENT GOALS
The Millennium Development Goals constitute a framework initiative promoted
by the United Nations since 2000 to enhance development prospects around the
world. In 2010, the MDG 2010 Summit saw a renewed commitment from UN
agencies, governments, donor bodies, businesses, and NGOs to accelerate measures
towards 2015 targets (UNDP 2011; UNGA, 2010). Though not a particular goal, energy
services, as can be expected, are of utmost importance to any MDG national policy
(PANGESTU & SACHS, 2004).
Energy has a contribution to each of the eight United Nations development
goals. Goal number 1 stresses the commitment to eradicate extreme poverty and
hunger; to which energy services can assist by diverting time spent gathering
biomass fuels to the development and expansion of income generating activities and
increasing crop productivity (PANGESTU & SACHS, 2004). This would also provide
families with the monetary means and technology to purchase, store or produce
food (UN-Energy; FLAVIN & AECK, 2005).
Goals 2 and 3 call on the achievement of universal primary education and the
promotion of gender equality and female empowerment, respectively. Aside from
creating conditions for children to study at home during after dark and ensuring
schools have access to all required means to educate students, energy services give
an incentive for families to send kids to school by reducing—or even eliminating—
the time they spend gathering fuel. Electricity could also encourage teachers to
move to remote surroundings (UN-Energy; FLAVIN & AECK, 2005). Women, who
most often carry the responsibility over household chores, are also given a chance
to learn how to read if their working hours at home are considerably reduced.
Furthermore, electricity can increase the amount of information they receive on
gender issues (UN-Energy, 2005).
The Millennium Development Goals also highlight major health concerns
through goals 4, 5, and 6. Efforts to reduce child mortality, improve maternal health,
21
There are six dimensions to sustainable energy systems. Thus, energy systems must be: (a)
appropriate—addressing community needs and cultural preferences; (b) use available renewable
resources; (c) enhance capacity—allowing the development of productive activities; (d) adaptable—
adjusting to community needs across time; (e) easily repaired and maintained—ensuring locals can
perform necessary operations; (f) upgradeable—easily integrating new technology (O’KEEFE; O’BRIEN;
PEARSALL, 2010, p. 61).
176
and fight several diseases—among which are HIV/Aids and malaria—can profit from
high quality energy services. Healthcare prospects can be boosted when clinics are
able to operate for longer hours, to store medication and to conduct clinical exams.
Beyond that, cutting down malnutrition, lowering indoor air pollution and
providing populations with clean water supplies may have direct impact over
people’s health conditions. Individuals can also receive more information on
prevention and treatment methods through communication channels (UN-Energy,
2005).
The achievement of goal number 7—environmental sustainability—can benefit
from the usage of cleaner and renewable energy sources, as well as from greater
efficiency and technology development on fossil fuels (DFID, 2002; UN-Energy, 2005).
As for the establishment of a global partnership for development—goal number 8—,
it can be said that energy considerations must be included in development strategies
if they are to fully change the lives of those living in degrading conditions. Thus,
even if energy alone is not enough to eradicate poverty and promote human
development, it might be an effective way to break the vicious cycle some countries
find themselves drowned into.
2.4. ENERGY SECURITY IN ASIA
Energy security has been an issue of concern for countries for centuries, given
the importance of energy in the pursuit of further social development and economic
growth. Concerns about energy security contribute to shape state behaviour,
influencing the construction of alliances and patterns of cooperation among
nations. Over the past decades, these concerns have gained notoriety given the fast
economic growth experimented by Asian nations. Nonetheless, literature on the
matter has not been able to reach a consensus definition, even though there is
considerable similarity in characterization.
Over the last few decades, the debate on energy security has evolved. Whereas
major discussions were focused on the pure necessity to ensure stable energy
supplies (supply-based approach), they now encompass several of the challenges in
the 21st century. In turn, this has led to a new wave of possible definitions; none yet
considered to be ideal by analysts. The United Nations Development Programme
(GOLDEMBERG; JOHANSSON, 2004, p. 42), for example, relates energy security to
“the availability of energy at all times in various forms, in sufficient quantities and
at affordable prices, without unacceptable or irreversible impact on the
environment (...) Energy security has both a producer and a consumer side”. The
enlargement of the concept allows for the inclusion of different sources of energy,
surmounting the oil prerogative to include gas, coal (already in large use), nuclear,
solar, renewable, and others, on the scope of possible alternatives, without disregard
for environmental concerns.
Acknowledgement of a producer and a consumer side to energy security also
accommodates those countries which present a prominent export emphasis—and
most probably depend on it to secure a percentage of state revenue—, as well as
those that depend—to various degrees—on imports to ensure their energy demand
is met over time. Hence, such a differentiation is at the basis of developing and
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established trade patterns across the globe. Global trade movements of oil, coal, and
natural gas illustrate to the importance of those trade flows. 22 Even though the
UNDP definition helps to broaden the scope of energy security, it still carries some
flaws. For instance, the role of transit nations is not accounted for, at least not
explicitly. Transit countries are nations whose territories serve as pathways
between importers and exporters (LUFT & KORIN, 2009), and they are becoming
more important as inland connection routes are being envisaged and built. Besides,
these nations might extract fiscal and supply benefits for themselves. As examples,
it is possible to quote the Kazakhstan-China oil pipeline and construction of a
pipeline linking China to Turkmenistan across Uzbekistan and Kazakhstan to supply
the country with natural gas (CHOW & HENDRIX, 2010).
Furthermore, energy security might have different meanings among nations. As
such, a country’s energy policy will be affected by resource availability, geographical
location, pattern of alliances, political system, short-term vs. long term decisions,
and economic strength (LUFT & KORIN; VON HIPPEL et al, 2009). Thus, countries
which possess a large quantity of energy resources or the necessary environmental
conditions to produce new and renewable ones will possibly—but not necessarily—
be more energy secure than those which do not, since they can use the resources in
hand. Deprivation of traditional fossil fuels has forced Japan to resort largely to
imports and nuclear technology to address its needs. However, recent nuclear
accidents may lead the country to rethink its energy security strategy. Similarly, a
focus on long term energy security concerns might prompt a state to foster the
development of new technologies which could improve efficiency in energy
production and use, for example. In the end, however, it is the combination of the
factors mentioned above which will determine what energy security finally means
for a country and how energy secure the nation actually is. Every country’s
understanding of energy security is also shaped by the challenges that affect it the
most, some of which are derived from the characteristics described above. Internal
political disruptions, large scale poverty, climate change, low prospects on R&D,
terrorism, among other factors, therefore influence states’ decisions towards energy
security.
The difficulty in providing a definition that encompasses all aspects of energy
security to all countries has led specialists to focus rather on energy security
strategies. Building on a broad concept of energy security similar to the UNDP one
mentioned above and acknowledging the intrinsic differences among nations and
the challenges they face, Kerr (2011) has advanced four strategies for planning and
mobilizing resources to attain the best possible energy security status. On the other
hand, it is important to note that they are not mutually excluding, but countries
tend to emphasize them according to perception of their current status and
capabilities, as well as their projected development objectives. The first approach
relates to autonomy and auto-sufficiency in energy resources. In that sense, it does
not necessarily mean any country has achieved such position, but only that some
may be working towards it. Apart from that, countries can also seek security of
22
For further details, refer to British Petroleum (2011b) statistics.
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external supply, a strategy which will ultimately include considerations such as
diversification of suppliers and control over foreign resources. Strategy number
three concerns regional energy integration, whereas number four emphasizes
technology innovations to ensure efficiency and diversification of energy resources.
2.4.1. THE ASIAN DYNAMICS
Recent economic growth in Asia has increased the continent’s concerns over
energy security. In that sense, projected strong demand increase in some regions—
especially in China and India—, and decreasing levels of oil production on Southeast
Asian countries—turning them into net energy importers—, point to the need of
developing efficient measures to prevent economic disruption and interference on
service availability in order to foster social development. Electricity itself is also a
major issue, since a large share of the world’s population who do not have access to
it live in Asia (IEA, 2010f).
The continent is also subjected to many of the current challenges regarding
energy security worldwide which impact directly on energy security prospects on
the continent. The struggle against terrorism in Pakistan and Afghanistan; the
continuity of territorial disputes, though not always violent, which could disrupt
trade flows; environmental damages; and infrastructural and financial difficulties,
affecting largely the efficient provision of electricity, illustrate a few of those
challenges. In alignment with the aforementioned characteristics distinguishing
energy security perceptions among nations and projected patterns of demand and
supply, such challenges help shape the environment in which energy security
concerns in Asia are advanced.
Whereas the importance of efficiently using available resources within each
national territory must be stressed, it is also crucial to point out that the pursuit of
energy security brings about the inevitability of competition among Asian states. As
a consequence, countries are pushed towards the establishment of trade patterns to
guarantee the attainment of required supply levels. Therefore, given the high
prospects for competition arising for the great Asian energy needs, it becomes
logical to single out Asian geopolitics in order to understand how energy security
dynamics are shaped on the continent and elucidate some of the measures currently
taken by states towards energy security.
Wesley (2007) points to the existence of two geopolitical dimensions in Asia:
maritime and terrestrial. Even though his analysis highlights the importance of the
United States and the pressure arising from emerging Asian economies on the first
dimension, a focus on the needs of Asian countries in general stresses the value of
the maritime alternative to a large number of nations. Currently, maritime routes
are the most used transportation channel around the world (WESLEY, 2007),
ensuring the trade of the bulk of oil supply, for example. In Asia, the sea borne
option is also very important for it allows for oil from the Persian Gulf to reach
planned destinations. China, for instance, is largely dependent on sea line
communication routes for its oil import. As of 2008, about 80% of total oil supply to
the country was delivered through the Malacca strait (DEPARTMENT OF DEFENSE,
2010). Besides, the insular location of many nations also singles out the value of
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water routes on the Asian scene, as Japan’s situation illustrates and that of insular
Asian countries.
Over the last few decades, however, terrestrial transportation alternatives are
becoming more popular as some countries strongly seek to diversify their sources.
In that process, Central and West Asia 23 have become prominent, especially with
regards to negotiations on pipelines for oil and gas transportation. One of the
factors influencing the land transportation dynamic is the landlocked position of
most Caspian Sea countries.24 Based on data from APERC (2009), the Asian
Development Bank (2009) has shown that in recent years China has invested largely
on the region. This accounts for the construction of a crude oil pipeline linking
Kazakhstan to China and projects to build another one connecting China and
Myanmar. India has not lagged behind, counting on the envisaged development of a
pipeline currently known as IPI (India-Pakistan-Iran).25 Developed Asian nations
such as Japan and South Korea are also seeking to enter the competition in Central
and West Asia. Even though geographical and political issues might undermine their
position in a terrestrial scenario, they have invested in projects on the region
(APERC, 2009). Accordingly, in order to tackle this situation, South Korea has
recently been involved in talks on the construction of a pipeline from Russia to its
territory through North Korea (N. KOREA, 2011).
Notwithstanding, energy dynamics in Asia are not only built around Asian
nations. As such, the United States and the European Union appear as large
competitors for resources emanating from the Persian Gulf and Central and West
Asia. Concerning suppliers, Russia, Africa and Latin America also stand out as focal
points of origin, especially when states seek to diversify import partners. The nature
of the challenges faced by Asia on energy security, together with the competitive
environment concerning resources—especially with regards to fossil fuels—must
lead states into thinking of ways to enhance their energy security prospects. By
doing so, their growing demand could be met—and regional supply channels could
be ameliorated—and electricity access would be definitely improved. In the end,
economic growth and human development would be further advanced.
2.4.2. ENHANCING ENERGY SECURITY IN ASIA
A plethora of measures could be taken to enhance energy security in Asia. First
of all, states could try to reduce projected energy demand, a decision that would
probably require adaptation of economic infrastructure and increasing efficiency in
energy provision methods. Another proposition involves the buildup of strategic
petroleum reserves (SPRs) to respond to emergency situations, a maneuver already
in place in countries like Japan, South Korea and more recently China and India. Still
on the traditional fossil fuels dilemma, diversification of suppliers is one way of
ensuring energy resources to lock-in increasing demand. A few measures have
23
As classified by the Asian Development Bank
The Caspian Sea region is composed of five countries: Russia, Iran, Azerbaijan, Kazakhstan, and
Turkmenistan. Of those, the last three are landlocked.
25
Negotiations on this pipeline have slowed down over the last few years, but developments have
recently regained pace although skepticism over the issue still remains (PPI, 2011; IPI, 2011).
24
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already been taken on that sense, as countries from Africa and Latin America cut
deals with Asian nations such as China. In 2008, Angola was the second larger
individual supplier of oil to China (17%), losing only to Saudi Arabia (20%) (US
DEPARTMENT OF DEFENSE, 2010). However, sole diversification of suppliers is not
enough to cope with the challenges of today’s world. A diversification of energy
sources is therefore needed.
Diversifying sources would by itself augment the prospects for energy security
since countries would increase the spectrum of methods to fulfill their needs.
Beyond that, one of the biggest advantages of such a shift could possibly be a
reduction of environmental degradation. Be it local air pollution or even climate
change, resorting to cleaner energy types could have advantages for all. In that
sense, even the substitution of coal for natural gas for electricity generation could
translate into a huge improvement. Nevertheless, that change would necessarily
have to bring about solutions for some of the other challenges faced by Asian
nations, such as low conditions for investment in R&D and basic infrastructure
needs. Failure to invest on security of internal energy supplies would likely impede
the usage of those alternative sources of energy. This also has implications for the
continued use of traditional fuels for the failure to renew or build new
infrastructure will ultimately mean less efficient use of resources. This affects all
countries in Asia, since problems with efficiency and lack of technological
development impact not only energy import-export dynamics, but also on energy
access to the populations of both importer and exporter countries.
Cooperation is also an effective way of boosting energy security. A number of
regional, continental and global initiatives have surfaced to foster cooperation on
energy in Asia. Nonetheless, this does not exclude efforts on bilateral agreements
between countries. The United Nations Economic and Social Committee for Asia and
the Pacific (ESCAP) (2008a) has outlined a non-exhaustive list of decision-making
initiatives around energy, some well-developed, and some still in beginning stages.
A lot of them are intergovernmental, such as the mechanisms within the Asia-Pacific
Economic Community (APEC), while others are structured as partnerships, networks
and programmes. They also work on a variety of energy topics, from fossil fuel and
renewable energy to electric power and energy efficiency.
Cooperation has helped increase and create patterns of transboundary
interconnection within regions and between them not only through the
development of pipelines, but also through electricity partnerships. The Shanghai
Cooperation Organization (SCO) is one of the regional groupings whose subjects
have evolved to comprise energy issues, specially gas and oil (ESCAP, 2008a;
WESLEY, 2007). The possibility of increasing cooperation has led ESCAP to promote
South–South cooperation as a means of boosting energy security through
information-sharing on technological know-how on renewable energy, as well as
other measures to allow for transfer of technology (ESCAP, 2008a).
APEC, through its Energy Security Initiative (ESI), has divided potential measures
to enhance energy security into short term and long term categories. The first one
presents four focal points: increasing transparency levels on the global oil market,
the fostering of emergency mechanisms and contingency plans, improvement of
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maritime security, and creation of an information-sharing mechanism to respond to
emergency situations (APEC, 2009). In response to some of the envisaged measure
mentioned above, the Joint Oil Data Initiative (JODI), an extensive database on
energy, was implemented in 2002 (ADB, 2009). On the other hand, long term
measures relate to mechanisms which could foster technology, trade, and
investment trades concerning the full spectrum of energy resources (APEC, 2011a).
2.5. ENERGY SUPPLY AND SUSTAINABLE DEVELOPMENT
Sustainable development is an ever-changing process in which the needs of
present and future generations are met. This may happen as long as the exploration
of natural resources, investments, scientific and technologic progresses work
together with institutional changes (MARQUES, 2009). Besides environmental issues,
it also encompasses long term poverty reduction measures. Bearing that in mind,
energy supply is one of the basic means to reach such conditions.
Since energy is one of the most important inputs for economic development,
providing an adequate and accessible infrastructure is essential for eradicating
poverty and improving the well-being and quality of life of present and future
generations, according to Marques (2009). The author further affirms that the
crescent energy production in the past decades has contributed to global climate
change, representing “an unprecedented challenge for humanity” (MARQUES, 2009,
p. 37), since it is one of the main sources of environmental damage. For instance, the
oil industry burns between 150 and 170 billions of cubic meters of natural gas every
year just to release the pressure of oil fields and facilitate the drilling, which is
approximately the same amount which both Germany and Italy together consume
every year (WELZER, 2008).
Therefore, the utilization of energy supply as a tool for sustainable development
should consider the improvement of energy efficiency and the reduction of
environmental impacts (WBG; MARQUES, 2009). Consequently, this has many
implications for energy supply planning, namely infrastructure, management and
delivery concerns. In addition to that, energy supply reliability is another relevant
issue concerning sustainable development, since it enhances household welfare and
business operations (WBG, 2009).
Currently, energy production, transformation and use are major contributors to
rising Green House Gas (GHG) emissions, which cause climate change—one of the
most pressing environmental challenges nowadays—. In order to deal with this,
strategies comprising changes in energy systems should be pursued (WBG, 2008).
Greater end use efficiency and adoption of new pollution reducing technologies are
some alternatives to a switch to cleaner fuels for the medium term.
Nonetheless, these measures ought to take into account the energy needs of
developing countries for their own economic growth and development. This raises
the question of how can least developed countries economically grow without
accelerating current environmental impacts. Rourke and Boyer (2004) remind that
limiting the development of nations and/or un-developing them is hardly an option
and, thus, the other available option would be to link economic growth to
environmentally friendly technologies. They also point out that these technologies
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are rather costly, which makes them unattractive to least developed countries. In
addition to that, the research for new ones is also very expensive, further
discouraging them. However, for developed countries these technologies and their
research can be affordable. Joint solutions for new energy supply projects, such as
technology-sharing, could be, hence, beneficial so as to achieve sustainable
development (ROURKE & BOYER, 2004). Even so, the implementation of measures—
either regional or unilateral—which promote innovation and competition through
research and development of environmentally friendly technologies should be
considered as a means for handling with this issue. Otherwise, many controversies
and disputes could arise from the competition between Asian countries for (nonrenewable) energy sources, as energy security could be at stake.26
Another point of concern lies on the side of demand, which is closely linked to
development, namely population increase and the fact that the majority of the
people in developed societies live in urban agglomerations (ROURKE & BOYER,
2004). Nowadays, “more than two thirds of modern energy consumption takes place
in cities” (WBG, 2008, p. 6), which can be a challenge for nations, since their social
and economic development is brought by energy access and this brings more
demands for energy too. Furthermore, most solid waste and transport-related GHG
emissions are produced in cities. As a result, development may bring a great
environmental impact, if projects are not adequately elaborated with environmental
aware measures to tackle those issues, for example: advanced planning, new fuels,
green technologies and modal shifts (WBG, 2008). Therefore, an underlying principle
of such plans is:
[…] the need to reduce the ecological impact of consumer patterns,
rather than reduce the well-being that consumption is intended to
produce; in other words, to improve the quality of consumption,
rather than reduce the quantity of consumption (ESCAP, 2008b, p. 58).
Moreover, considering current existing green technologies and environmentally
friendly energy sources (hydropower and bio-fuels being the most relevant), the
increase in demand for energy caused by development will also boost demand on
water resource bases (WBG, 2008). Particularly in Asia, while declining poverty rates
are giving birth to a rising consumer class due to economic growth, it already exerts
“high levels of environmental pressure, evident in the form of unmanageable levels
of waste and pollution, and increasing energy and water demand exceeding existing
resources” (ESCAP, 2008b, p. 56).
Better infrastructure and management practices would therefore be needed so
as to cope with such a situation. Marques (2009) points out that an adequate
planning of energy supply (and water) in both medium and long term would
demand an enduring and coordinated effort of prevision and programming. That is
why thorough analyses of social, economic and environmental impact are deemed
necessary before making any investment. The need of establishing new
26
For more information on the linkage between energy security and sustainable development, read
ESCAP. Energy Security and Sustainable Development in Asia and the Pacific. Bangkok: United Nations,
2008.
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environmentally friendly energy infrastructure and management practices is not
denied, notwithstanding.
Accordingly, policy measures concerning environment protection and energy
supply should be sought. There are some which are currently being considered by
the World Bank Group (2002): The promotion of clean transport fuels and switch
from coal to gas; facilitation of environmentally sustainable extraction, production,
processing, transport, and distribution of oil, gas and coal; strengthening
environmental management capacities; elimination of market and regulatory
barriers to renewable energy and energy efficiency investments for biomass and
power; and reduction of gas flaring (which increase GHG emissions). In view of that,
there are already some proposed means to protect the environment regarding
energy supply. They are “programs to promote fuel switching and energy efficiency
through energy service companies, energy efficiency funds, rural energy funds, and
emissions trading”, and “economic and sector analysis and knowledge
dissemination in support of capacity building” (WBG, 2002, p. 23).
In accordance with these aforementioned policy measures, major policy changes
have been occurring in Asia. The Republic of Korea, for instance, has taken a
leadership role in this area by establishing the “Low Carbon, Green Growth”
development strategy in 2008, which defined their energy policy until 2030. This
strategy targets both reduction of energy consumption and efficiency improvement,
as well as the reduction of fossil fuels dependency while increasing the use of clean
energy (UNEP; ROK, 2010). It also promotes the green technology industry in the
country. Furthermore, the example given by the country on the issue:
has inspired regional groupings, such as Association of Southeast Asian
Nations (ASEAN) and the East Asian Climate Partnership, to pursue this
strategy (…) other emerging economies such as China and India have
achieved unprecedented progress for low carbon development (ESCAP,
2010, p. xiii).
On top of that, according to Marques (2009), measures for achieving sustainable
development in specific regions ought to be based upon the diversification of their
energy matrix through utilization of alternative sources, especially those which are
more environmentally friendly. For the formulation of new projects and
implementation of existing ones, it is indispensable to know which energy sources
are available, whether they are renewable or not and whether they meet social
demands (MARQUES, 2009) so as to make tailored approaches which meet
environmental requirements (WBG, 2008). Furthermore, the support of “energy
generation growth by means of renewable energy technologies slows the depletion
of natural resources, limits global environmental damage, and can contribute to the
substitution of domestic resources for imported ones” (WBG, 2010, p. 10).
Current alternative energy sources being developed include: wind power, solar
photovoltaics (PV), concentrating solar thermal power (CSP), solar hot
water/heating, biomass power and heat, bio-fuels, geothermal power and heat,
hydropower and ocean energy. Regarding the first one, the People’s Republic of
China has been leading the installation of wind power capacities, planning to install
more than 30GW in 2011 and 2012; the country currently accounts for half of the
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global market, (REN21, 2011). Another trend concerning wind power is the “growing
popularity of community-based projects and distributed, small-scale grid-connected
turbines” (REN21, 2011, p. 12), which can be placed in different geographical
locations, fostering the development of small communities. REN21 (2011) states that
China is also a leading consumer of solar energy, especially solar hot water, being
also the country which most invests in expanding its capacities on the field.
Moreover, Asia is becoming the main manufacturer of solar PV cells, with 10 of the
top 15 companies operating in the region (REN21, 2011). Concerning biomass, whose
supplies of electricity and heat have been rising in spite of being the major source of
heating from renewable sources, China and India are its main markets in Asia. The
first is world leader in the number of household gas plants, whereas the latter has
increased the use of gasifiers for heat applications in enterprises (REN21, 2011).
Energy from hydropower has also developed in the continent, particularly in China.
Even though much progress has been made towards environmentally friendly
energy supply, many challenges still remain at the regional and inter-regional level
for expanding energy access, notably from sustainable sources. For that reason, the
World Bank Group created the Asia Sustainable and Alternative Energy Program
(ASTAE) in 1992. Since then, the program, which rests on three pillars—renewable
energy, energy efficiency, and access to energy—, has supported more than 40
projects in Asia towards cleaner energy, with the funding from the Netherlands,
Sweden, the United States, Australia, the United Kingdom, Canada, Finland, Japan,
and Switzerland, besides contributions from the World Bank itself. ASTAE’s
indicators of sustainability are 1) new MW and GWh of renewable energy, 2) GWh
avoided through energy efficiency, 3) number of household connections to
improved energy sources, and 4) avoided CO2 emissions. These are used to measure
not only ASTAE’s own projects, but also the ones from the World Bank.
Taking into account the indicators, the overall situation has shown
improvements over the past few years, but still many challenging issues regarding
the topic remain in Asia, so that:
six priority areas of focus in the energy sector in the coming years
were identified for the region: scaling up renewable energy, improving
energy efficiency, increasing access to energy, introducing new
technologies and low-carbon energy solutions, promoting regional
energy trade and market integration, and advancing sector reforms
and financial viability (WBG, 2010, p. iii).
3.1. ASIAN DEVELOPMENT BANK (ADB)
The Asian Development Bank was established in 1966 by the UN Economic and
Social Commission for Asia and the Pacific (UNESCAP) and has since grown to
encompass 67 members, of which 19 are outside the region. With the motto
“fighting poverty in Asia and the Pacific” ADB comprises a large and important
funding agency aimed at providing economic growth and social development for
Asia and the Pacific region. ADB acts not only through direct and immediate
funding, but also through technical assistance and publication of scientific research,
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pertinent databases and analyses. Currently, all operations until 2020 are guided by
ADB’s Long-Term Strategic Framework (Strategy 2020) launched in early 2008 (ADB,
2008, p.5), a program divided in three branches of reciprocal action: a) inclusive
growth; b) environmentally sustainable growth; c) and regional integration. Energy
supply is a prominent element to such a framework:
ADB will help DMCs [development member countries] move their
economies onto low-carbon growth paths by: (a) improving energy
efficiency; (b) expanding the use of clean energy sources; (c) reducing
fugitive greenhouse gas emissions, such as methane released from
landfills; (d) modernizing public transport systems; and (e) arresting
deforestation (ADB, 2008, p. 14).
According to the ADB, regional integration spurs inclusive growth and helps
shrinking regional disparities, as shows the case of South Asia and its natural gas
and hydropower resource distribution, a situation which prompts the establishment
of energy trade patterns among the region’s countries (ADB, 2008).This must all be
interconnected with possible environmental damages arising from energy use, since
“the Asian energy sector’s share of global carbon dioxide emissions have more than
tripled from about 8% in 1980 to about 28% in 2005 […] The region has the highest air
pollution levels in the world, despite slight improvements in some cities” (ADB,
2008, p. 5).
In 2009, the ADB launched a new Energy Policy to respond to current challenges
facing energy nowadays, such as climate change. This concern has given rise to an
energy approach based on three main pillars: energy efficiency and renewable
energy promotion; maximization of energy access for all; and energy sector reform,
capacity-building, and governance (ADB, 2011b) which are to be developed in
accordance with Stategy 2020. tAs such, the 2009 Energy Policy intends to “help
DMCs to provide reliable, adequate, and affordable energy for inclusive growth in a
socially, economically, and environmentally sustainable way” (ADB, 2011b).Even
before establishing a new energy policy, the ADB had started developing several
energy initiatives under the scope of former energy policies. As a result of energy
related work up to date, a relatively wide range of initiatives has been put into
practice, such as the Energy for All Initiative, the Carbon Market Programme, the
Cities Development Initiative for Asia, the Sustainable Transport Initiative, and the
Energy Efficiency Initiative (ADB, 2011c). The latter has recently been reformulated,
being replaced by ADB’s Clean Energy Programme in 2010 (ADB, 2010).
It seeks to increase regional energy efficiency in energy, transport and
urban sectors; to adopt renewable energy sources; and to improve
access to energy for the poor and remote regions - avoiding the use of
traditional biomass. The clean energy program seeks to meet energy
security needs, facilitate a transition to a low-carbon economy,
universal access to energy, and achieve ADB's vision of a region free of
poverty (ADB, 2011d).
Low carbon technology initiatives are also covered by the Asian Development
Bank (ADB, 2011d).
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3.2. WORLD BANK (WB)
The energy theme is a constant concern to the World Bank. It believes that
energy supply is crucial to shrink poverty and for economic growth. As the major
global multilateral financial institution, the WB has formed a number of
partnerships with governmental institutions, such as the ADB, focusing on social
and economic agendas, in which the energy issue is a key element. The institution
provides substantial assistance to developing countries through knowledge transfer
and financial instruments. According to World Bank figures, the energy sector
accounted for $13 billion worth of loans throughout fiscal year 2010 (WBG, 2011c).
The share of low-carbon energy projects and programs responds to 42% of that
amount, reaching over $5.5 billion (WBG, 2011c). This is part of an ongoing effort
which has seen investments of $17 billion since 2003 - $14.2 billion on energy
efficiency and renewable energy alone (WBG, 2011c). Despite the large sums made
available for low-carbon projects, the World Bank has not ceased financing coal
projects. Nevertheless, it has advanced specific criteria regarding coal use, the main
argument being “cases in which a country has no other options to respond to urgent
demands for electricity” (WBG, 2011b). As such, the World Bank (2011b) is
supporting the quest for an energy smarter future:
Through lending and analytical work, we are delivering energy to the
poor in sustainable ways, ranging from low-carbon cook stoves to
supporting countries’ development of hydropower, large and small, as
well as solar, wind and construction of energy-efficient infrastructure.
We are supporting low-carbon country studies, analysis and plans to
develop regional energy markets, to remove fossil fuel subsidies, and
develop new sources of renewable energy (WBG, 2011b).
The Energy Sector Management Assistance Programme (ESMAP) was established
in 1983 to function under the WB’s auspices. Its main purpose is to “is to assist lowand middle-income countries to increase know-how and institutional capacity to
achieve environmentally sustainable solutions for poverty reduction and economic
growth” (ESMAP, 2011a) through four energy-related themes: renewable energy,
energy security, energy poverty, and market efficiency and governance (ESMAP;
SARCP, 2008)—without disregard to climate change concerns. As an example of
ESMAP’s work, it is possible to highlight the Energy Assessments & Strategy
Programs (EASP), the Pro-Poor Energy Access Technical Assistance Programs (PEATAP), Energy Efficient Cities Initiative (EECI), and Renewable Energy Market
Transformation Initiative (REMTI) (ESMAP, 2011b).
In order advance alternative energy use, the World Bank has prompted the
creation of the Asia Sustainable and Alternative Energy Program (1992). Throughout
the years the initiative grew to support the attainment of sustainable energy which
allows it to fulfill its main objective that is “to scale up the use of sustainable energy
options in Asia to protect the environment and reduce energy poverty” (WBG, 2010,
p. 10). Built around three pillars—renewable energy, energy efficiency, and access to
modern energy services—to guide its activities, ASTAE not only gives direct support
to World Bank projects, but it also contributes to fostering sustainable energy by
becoming closer to client countries over the years. Furthermore, to achieve its main
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goal, ASTAE seeks to cooperate with other World Bank Trust Funds; ESMAP and
ASTAE have establish an efficient partnership with the former providing the basis
for ASTAE to act.
As a result of its establishment, ASTAE has spent more than US$62.6 million in its
projects since its inception and it invested US$3.9 million in 2010 only (WBG, 2010).
There are several ASTAE projects currently under implementation in Asian
countries, namely China, Laos, Cambodia, Vietnam, India, Philippines, Indonesia,
Timor-Leste, Papua New Guinea and Mongolia (WBG, 2010). Also during fiscal year
2010, China, Vietnam, and Indonesia received the largest share of allocations (39%)
(WBG, 2010). Alongside ASTAE’s actions towards East Asia, the programme has
“recently extended its activities to the South Asia region with a project approved in
India to support energy efficiency in small and medium enterprises (WBG, 2011a)”. 27
As South Asia turned out to be notoriously vulnerable to climate change effects,
WB’s efforts in the area concentrate at growing climate-related projects and
developing energy infrastructure in order to avoid unnecessary waste that harms
the environment. The World Bank also works closely with the Global Environmental
Facility (GEF) due to similarities on main issue areas (GEF, 2010)
In addition, WB has recently set the bases for an updated energy sector strategy
to face the many challenges to development in an environmentally sustainable
manner and to promote energy poverty alleviation (LATTANZIO, 2011). From
previous consultations with governmental institutions, as well as civil society and
the private sector, an enriching Approach Paper, made in early 2009, gave the basis
to the sector to-be. The document encompasses various efforts aimed at “helping
developing countries to achieve the twin tasks of: improving access and reliability of
energy supply and facilitating the shift to a more environmentally sustainable
energy development path” (WBG, 2009, p.9). Further developments on the matter
have led to the creation of a strategy document entitled Energizing Sustainable
Development: Energy Sector Strategy of the World Bank Group (ESS) (LATTANZIO, 2011).
3.3. UNITED NATIONS (UN)
The UN is responsible for coordinating actions to a much larger and ambitious
scale for it enables the deliberation of development issues on a global basis, even
though its guidelines can be streamlined and put into practice from regional
spheres. In 2004, following developments at the 2002 World Summit on Sustainable
Development (WSSD), the United Nations established UN-Energy, a “mechanism for
inter-agency collaboration in the field of energy” (UN-Energy, 2011a). Beyond a
simple response to WSSD’s demands, UN-Energy seeks to address the lack of specific
energy related organisms within the United Nations by bringing together UN actors,
as well as external stakeholders (UN-Energy, 2011a). The mechanism has selected
three main themes, each of them coordinated by two UN organizations. Work on
energy access is conducted by UNDP and UNDESA, having the World Bank as a
partner. FAO and UNEP—with help from UNESCO—lead renewable energy topics,
while energy efficiency is the matter of UNIDO and IAEA (UN-Energy, 2011a).
27
The regions are defined according to World Bank criteria.
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Throughout Asia, UN-Energy specific actions have been centered around
frameworks provided mainly by UNESCAP (UN Economic and Social Commission for
Asia and the Pacific), ASTAE (Asia Sustainable and Alternative Energy Programme),
and UNIDO (United Nations Industrial Development Organization). UNESCAP’s focus
has been energy efficiency and the establishment of mechanisms and strategies to
enhance energy security. Increased energy efficiency is to be sought through the
advancement of policy reforms, as well as institutional ones, in order to promote
low carbon development. Cooperation among regional actors, information sharing
and capacity-building are deemed by UNESCAP to be the means to facilitate the
achievement of such goals (UN-Energy, 2011e). Regarding energy security, UNESCAP
aims to build a regional energy mechanism to provide for transboundary energy
cooperation (UN-Energy, 2011c). The proposed Trans-Asian Energy System would
come as a consequence to efforts on that matter. As for ASTAE, reducing energy
poverty levels and environmental damages arise as a main concern to which the
fostering of sustainable energy options would greatly contribute (UN-Energy,
2011b). Renewable energy projects under the scope of UNIDO seek to “enhance
productive activities and increase competitiveness of small and medium enterprises
(SMEs) in rural on/off-grid areas through the promotion of mainly bio-energy, small
hydropower, solar energy and wind energy” (UN-Energy, 2011d). Beyond that, other
initiatives and mechanisms of global scope also operate in the Asian scene. 28
3.4. INTERNATIONAL ENERGY AGENCY (IEA)
The International Energy Agency (IEA) was established in 1974 following the
then recent first oil crisis. Currently, it is composed of 28 industrialized nations, of
which two belong to Asia—Japan and the Republic of Korea. From its initial focus on
responding to oil supply uncertainties across time, the organization has evolved to
encompass four topic areas: energy security, environmental awareness, economic
development, and engagement worldwide (IEA, 2011a). Into practical terms, such a
shift has been showed on the series of analysis, statistics, among other activities,
performed by the IEA. They now include considerations for diverse energy sources
and seek to provide the same kind of assistance to non-member countries in order
to find common solutions to common energy problems. According to provisions
under the organization’s treaty (1974), the member countries have become
“committed to taking joint measures to meet oil supply emergencies. They also have
agreed to share energy information, co-ordinate their energy policies and cooperate in the development of rational energy programmes” (IEA, 2011c, p. 1). The
IEA emergency response mechanisms are also guided by the treaty and were
improved by complementary mechanisms established at a later date:
The I.E.P. Agreement requires IEA member countries to hold oil stocks
equivalent to at least 90 days of net oil imports and – in the event of a
major oil supply disruption – to release stocks, restrain demand,
switch to other fuels, increase domestic production or share available
oil, if necessary. (…) Close dialogue and co-operation are maintained
with consuming countries that are not member countries of the IEA
28
For further information on activities in Asia, please refer to the UN-Energy webpage.
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and collective actions are taken in co-ordination with major producing
countries (IEA, 2011c, p. 3).
The IEA also works in partnership with the Organization for Economic
Cooperation and Development (OECD).
3.5. THE ASIA-PACIFIC ECONOMIC COOPERATION (APEC)
Established in 1989 in the city of Canberra, Australia, APEC is the chief AsianPacific economic forum, gathering 21 countries of the Pacific Rim.29 Energy security
is particularly important and also a reason for concern among APEC countries, since
this group alone accounts for nearly 60% of the world’s annual energy consumption
(APEC, 2011). Besides, this number is likely to increase as populations shift from
rural to urban areas as a result of industrialization.
Seeking to improve energy efficiency and tackle climate change, the APEC has
established various working groups to assist governments in meeting their goals.
For instance, APEC’s Energy Security Initiative and the Asia-Pacific Network for
Energy Technology address the critical issue of energy supply and regional
collaboration regarding energy research, respectively. Moreover, APEC’S Energy
Working Group “is strengthening collaboration with other international energy
groups on issues including maritime transport, energy security, emergency
preparedness, energy efficiency, clean energy technology (APEC, 2011b)”.
The 2007 Leaders’ Declaration on Climate Change, Energy Security and Clean
Development, provides an outline of the group’s actions and guiding principles on
the topic of the regional energy agenda:
Fossil fuels will continue to play a major role in our regional and global
energy needs. Co-operation, including joint research, development,
deployment and transfer of low and zero emission technologies for
their cleaner use, particularly coal, will be essential. It is also
important to enhance energy efficiency and diversify energy sources
and supplies, including renewable energy. For those economies which
choose to do so, the use of nuclear energy, in a manner ensuring
nuclear safety, security and non-proliferation in particular its
safeguards, can also contribute (APEC, 2007).
In the following annual Leaders’ Declarations, from 2007 to 2010, in different
nuances and themes, energy remained untouched as a critical point for fostering
inclusive economic growth. Furthermore, following the 2008-2009 economic global
crisis, APEC Trade Ministers, in the Statement on Addressing the Economic Crisis and
Positioning for Recovery (APEC, 2009), pointed out that developing clean and efficient
energy technology is a crucial step to ensure growth and economic stability.
29
Members are: Australia; Brunei Darussalam; Canada; Chile; People’s Republic of China; Hong Kong,
China; Indonesia; Japan; the Republic of Korea; Malaysia; Mexico; New Zealand; Papua New Guinea; Peru;
the Philippines; the Russian Federation; Singapore; Chinese Taipei; Thailand; the United States of
America; and Vietnam.
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3.5. THE ASSOCIATION OF SOUTH-EAST ASIAN NATIONS (ASEAN)
Created in August, 1967, in Bangkok, Thailand, ASEAN gathers ten countries in
Southeast Asia.30 Guided by the spirit of social and economic integration, ASEAN
prompted the Center for Energy (ACE) in early 1999:
The Center is envisioned to be a catalyst for the economic growth and
development of the ASEAN region by initiating, coordinating and
facilitating regional as well as joint and collective activities on energy.
To realize this vision, the Center will accelerate the integration of
energy strategies within ASEAN by providing relevant information
state-of-the-art technology and expertise to ensure that over long
term, necessary energy development policies and programmes are in
harmony with the economic growth and the environmental
sustainability of the region (ASEAN, 2011).
Notwithstanding the regional focus, ACE’s strategies aim at participating in
global exchanges of energy information and pursuing external sponsors or partners
for its initiatives. The ASEAN-German Mini Hydro Power Project, an ongoing
partnership between the German government and ASEAN, launched in 2005, is an
example of this endeavor.
4. BLOC POSITIONS
Brazil’s main energy source is oil, and with the 2007’s discovery of a giant deepwater oil field, localized from the coast of Espírito Santo to the coast of Santa
Catarina, the country is expected to play a greater role in the international oil
industry. Also, Brazil is the second largest producer of bio-fuels, with 26.3% of
world’s production (BP, 2011b).The country has played an important role in the
development of renewable fuels since 1975, after the rise of the petroleum prices.
More recently, in 2005 the National Program for Production and Use of Biodiesel was
created, focused on social inclusion and development (SILVA & SAKATSUME, 2007).
Other important energy sources for the country are natural gas and hydropower.
Also in South America, Argentina has the largest production of natural gas of the
continent (BP, 2011b), being gas the main source for its domestic energy needs (IEA,
2008a). Argentina has raised trade levels with Asian partners in the past few years,
especially due to China’s interest in America’s oil; in this context, a major buy of a
50% share of the Argentinean oil and gas group Bridas Corporation was made by the
China National Offshore Oil Corporation (CNOOC) in 2010 (CHINESE, 2010).
Canada has the potential to export oil to other regions of the world, provided it
develops a sustainable way to extract its unconventional resources. The country is
world leading uranium producer, exporting to countries like the United States,
Japan, and the European Union. Also, it exports oil, natural gas, and coal.
Domestically, hydropower represents more than half of electricity production, while
other types of renewable energy are being promoted by the government. Nuclear
power represents about 9% of primary energy supply. With a growth in demand,
30
Brunei Darussalam, Cambodia, Indonesia, Lao People’s Democratic Republic, Malaysia, Myanmar, the
Philippines, Singapore, Thailand and Vietnam.
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especially in the industrial sector, and a high energy usage per capita, improvement
of energy efficiency has been a Canada’s target over the last decade (IEA, 2010a).
The rapid economic growth of Asian countries, mostly China and India, is driving
the economic center of the world towards the continent. That trend is reflected not
only on national’s energy sector strategy, but also on the global energy competition;
while Western countries have diminished their oil demands due to the global
financial crisis, the rise in the global oil trade in 2010 was driven mostly by Asia
Pacific imports (BP, 2011b). Accordingly, the People’s Republic of China is the main
driver of the raise in global energy consumption, overcoming the United States to
the position of largest energy consumer (BP, 2011b). The country’s oil consumption
reached 10.6% of world’s total. The high dependency on oil imports, mainly from
Middle East, has made China’s policymakers seek to diversify its global acquisitions
and imports sources to other regions, mainly in Africa, South America and Russia
(EIA, 2010b). The rise in oil consumption, and specially the use of coal, of which
China represents almost half of global production and consumption, led China to the
positions of global top greenhouse gases emitter. Even though the government
recognizes the problem, it maintains the position of prioritizing economic
development over the diminishing of coal usage, defending that the main emission
cuts should come from developed countries (BUCLEY, 2010). While reserving the
right to use fossil fuels to boost the economy by not signing international
compromises, China is leading world’s investment in clean energy (US
DEPARTMENT OF STATE, 2011), and the country has an important influence in
global growth of renewable energy in 2010, especially regarding hydropower and
wind energy. China’s represents 21% of world’s hydroelectricity consumption (BP,
2011b) and has one of the largest wind turbine manufacturing industries in the
world.
The European Union (EU) stands out as a competitor for energy around the
world. Seeking to secure its own energy supplies, the bloc has participated in the
construction of pipelines linking Central Asia and Russia to its member countries.
Additionally, there are several gas lines projects intended to strengthen connection
among the EU, Russia and Central Asia. The most relevant ones being the North
Stream (Russia–EU), South Stream (Russia–EU), Nabucco (Central Asia–EU), and AGRI
(Central Asia–EU) (EU, 2011; ENERGY, 2009; CHAUSOVSKY, 2010). On the other hand,
the EU is also a source of technological know-how, primarily over its use of largescale nuclear power in countries like France and the United Kingdom (IEA, 2010a;
COMMISSION, 2011a). Furthermore, over the last few years, investment has been
made on renewable energy sources, translating into a large increase in wind and
solar power as sources of electricity and into the 2008 integrated energy and climate
change policy (COMMISSION, 2001a; 2011b). One of the leaders of that process has
been Denmark, whose investments in cleaner sources of energy since the 1970s have
changed its energy scenario and transformed it into the world leading state on wind
turbine production (DEA, 2010). Moreover, Denmark has profited from exporting its
energy technology to other countries (DEA, 2010). Since 2002, Germany has been
developing its Renewable Energies Export Initiative whereby contact between
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German and foreign companies in enhanced allowing the launching of trade
patterns regarding renewable energy technology (BMWI, 2011).
Ethiopia’s energy access rate is low, around 18% (WBG, 2011d), and the majority
of the population still uses traditional biomass—wood and manure—to most of its
energy needs. The use of wood for fuel has caused deforestation problems in the
country. Regarding electricity generation, 86% of it comes from hydropower,
followed by 16% from oil and less than 1% from geothermal (IEA, 2008a). Seeking to
increase access rates by augmentation of energy generation and diminishing of
energy waste, Ethiopia has received loans mainly from the World Bank and from
China. The country has high potential to produce both hydropower and geothermal
power, but government projects prioritize the first due to the high costs and risks of
geothermal power plants. Ethiopia’s effort to increasing its hydropower production
is not only for domestic purposes, but also to exportation to neighbor countries,
such as Sudan and Kenya.
India’s oil consumption last year grew by 21.5% (BP, 2011b), and relatively low
domestic production results in high dependency on imported oil, mostly from the
Middle East (EIA, 2010b). Natural gas follows the same pattern: despite the gain in
quantity and importance of domestic production, the rising demand for the “Fuel of
the 21st Century”, as called by the Indian Ministry of Petroleum and Natural Gas,
generated by economic growth causes significant dependency on imports (IEA,
2008a). Natural gas imports are a critical matter to Indian government, especially
regarding pipeline projects from Iran, Myanmar and Turkmenistan that would
require passage through neighbor countries Pakistan, Bangladesh, and Afghanistan,
compromising national security (INDIAN MINISTRY OF PETROLEUM AND NATURAL
GAS, n.d.). Despite the rise in oil and natural gas demands, coal remains the main
energy source in India, the country being the 4th largest coal producer in the world
(BP, 2011b). Regarding renewable energy, biomass it’s crucial to India, fulfilling
more than one quarter of domestic energy needs; also, the country is the 4th world
producer of wind energy (IEA, 2008a).
Rising domestic energy needs, that are growing about 7% by year, and the
declining production of oil in Indonesia (IEA, 2008a) has made the country a net oil
importer since 2004 (EIA, 2011), causing it’s withdrawal from OPEC four years later
(INDONESIA, 2008). Oil is the most important source of energy, with 31% of total
primary energy supply, followed by biomass, coal, and natural gas. (IEA, 2008a)
Medium-term energy goals are to reduce the importance of oil in the energy mix
down to 20% or less, increasing other types of energy. There is potential growth of
renewable energy, especially geothermal and biofuels (IEA, 2008a); Indonesia’s
geothermal generator is one of the world’s largest. (EIA, 2011).
The Islamic Republic of Iran has in the fossil fuels sector its main source of
exports earnings, having the third largest oil reserve and the second largest natural
gas reserve in the world (BP, 2011b). The country suffers from sanctions from the
UN Security Council regarding solely nuclear and missile projects. Yet, pressure by
the United States and the European Union governments, added to bureaucracy and
political interference in businesses inside the country, hamper foreign investments
from these countries. As a reflex, some of Iran’s major partners are Asian nations.
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China is currently Iran’s biggest destination for exports, followed by Japan, India
and South Korea (US DEPARTMENT OF STATE, 2011). The country also has a relative
decline in oil foreign earnings due to growth in domestic demand and the decrease
of productivity in oil fields. In addition, the lack of infrastructure and refineries has
made Iran an importer of oil products (IEA, 2008a). In an attempt to reduce oil
imports, the Iranian government subsidizes natural gas, which accounts for about
half of domestic energy consumption. In the renewable energy field, hydropower is
used for electricity generation in the country, although its importance is still
relatively small. Also, the Bushehr Nuclear Power Plant has started its operations in
September this year, in cooperation with Russia, beginning the nuclear power
production in the country.
Israel has historically been an energy importer. Nevertheless, recent discoveries
of offshore natural gas might have the potential to turn the country into an
exporter of that energy resource. Production on the new fields is set to start in 2012
and to be completed by 2018. The recent discoveries have in turn pushed other
countries in the region to ponder on the possibility of finding resources of their own
(RATNER, 2011). The country has, however, been investing on technology for the
development of renewable sources of energy, with emphasis on solar power (ICAMITL, 2011).
Japan has few natural resources, having to rely on imports to attend almost all of
its needs for its major energy sources: oil, coal and natural gas. The country has
reduced its oil usage since the petroleum shocks of the 1970’s (US DEPARTMENT OF
STATE, 2011), a trend that it’s likely to continue, while use of coal and natural gas
will probably still grow on the next years (JANE’S, 2009). To improve its energy
security, the country invests heavily on nuclear energy, being the third world
largest consumer of it (BP, 2011b). On March, 2011, a good part of the country’s
energy infrastructure was destroyed by an earthquake followed by a tsunami on the
coast of Sendai. The tsunami caused an diminishing of the total power generating
capacity of nuclear facilities (EIA, 2011), being especially problematic at Fukushima
nuclear power plant, where a leak of nuclear radiation rose worldwide concerns
about a potential nuclear catastrophe, and whether the benefits of a carbon-free
high-energy generation are worth the risks. Polls taken in May with Japanese
citizens, after the crisis, showed that around 40% of the population still supported
the use of nuclear energy, while the rest wanted it decreased or abolished (WNA,
2011b). In the short term, there will probably be an absolute decrease in energy
usage following the destruction of the Japanese cities, while there will be a relative
increase of oil and natural gas demands to fulfill the energy gap left by the accident
in Fukushima’s reactors (EIA, 2011).
Kazakhstan’s oil and natural gas production have been growing constantly over
the past years. The national economy has sided this growth scenario, with exception
of 2009 and 2010 when it was under the effects brought by the world economic
crisis. Kazakhstan is currently the 13th world’s top oil exporter, the development of
three major oil fields is could increase its importance to the world market, at least
doubling its production levels by 2019 (EIA, 2010b). The country exports mainly to
China, France, Germany, and Russia. Neighboring China and Russia are major
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partners to Kazakhstan, not only on trade but also through provision of financial
support. A matter of great importance to the land-locked country is transportation
for its outflows, an issue being tackled through the use of pipelines to send oil and
natural gas exports to Europe and China.
As Japan, the fact that the Republic of Korea has a very developed economy and
poor natural resources makes the country highly dependent oil, coal and natural gas
imports (IEA, 2008b). In 2008, it was signed a natural gas agreement with Russia, and
to reduce transportation costs there is a project of a pipeline that will pass through
North Korea (N. KOREA, 2011). Also, the search for energy resources is likely to cause
tension with countries of the region, like China and Japan, especially regarding
regional waters (JANE’S, 2009). Searching to improve its energy security, the
country’s national energy companies have sought overseas for opportunities (EIA,
2010b), and the government has sought to improve its nuclear energy program.
South Korea is the fifth largest nuclear energy consumer, and is aimed to become a
major technology exporter on the sector (WNA, 2011a). Regarding other types of
renewable energy, South Korea’s goal is to raise consumption share to 11% by 2030
(WILLS, 2010). The country’s “Low Carbon, Green Growth” development strategy
established in 2008, which defined their energy policy until 2030, also has many
goals regarding sustainable development and the promotion of green technologies
(UNEP; ROK, 2010). Accordingly, approved in 2010, the Renewable Portfolio Standard
program stimulates public and private investments in the wind and solar power
areas to achieve the target.
The Russian Federation is a major player in world energy, with exports being
crucial to its economy and political power. The country is between the top exporters
of oil, natural gas and coal. In 2010, Russia led the raise on net export with a 7.2%
growth (BP, 2011b). The country mainly exports to Europe—about 80%, Asia and
South America (EIA, 2010b). Although oil and natural gas pipelines are mostly
directed towards Europe, new projects are being explored to construct pipelines
directed to Asia (JANE’S, 2009). Marking this trend, the first Russia–China oil
pipeline began its operations in the beginning of this year (RUSSIA-CHINA, 2011),
diminishing the transportation costs. Russia’s domestic consumption is about half
met by natural gas, while oil, coal and nuclear energy also have a significant share of
the total energy mix (IEA, 2008a). Russian government has sought to diminish the
use of natural gas on electricity generation, maximizing the use of coal, nuclear
energy and hydropower, so that a larger quantity of natural gas is available to
exportation (WNA, 2011a).
South Africa’s economy is based on energy-intensive mineral industry,
depending on imported crude oil, and having coal as the main source of energy (IEA,
2008a). Also, the country is one of the most important synthetic fuel producers in
the world. Facing a gradual depletion of coal reserves and a pressure to reduce its
greenhouse gas emissions, South Africa it’s seeking to increase the use of alternative
energy sources, mostly by developing nuclear energy (WNA, 2011a). The World
Bank has supported several projects to improve the country’s energy infrastructure
and mitigate carbon emissions. Also in Sub-Saharan Africa, the Democratic Republic
of the Congo is almost energy self-sufficient, producing the totality of its renewable
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fuel and waste usage, which represents 93.2% of total primary energy supply (IEA,
2008a).
Timor-Leste, after its independence from Indonesia, has sought to revert
Indonesian agreements with Australia, so as to readjust the maritime border and
place the majority of oil fields in the country’s territory (JANE’S, 2009). Although the
country is a crude oil exporter, it depends on diesel and oil products imports, mainly
from Indonesia. The reconstruction of energy infrastructure, badly damaged by
years of occupation, is being supported and financed by the United Nations, the
World Bank, and the Asian Development Bank. Most of the rural population, which
represents about 70% of the total (CIA, 2011), does not have access to an energy
system, relying mostly on biomass for fulfilling energy needs. It is estimated that
biomass is the country’s most used energy source and it comes mostly from wood
burning, generating a deforestation problem (REEEP, 2010). Also, the population is
becoming urbanized at a rate of 5% a year (CIA, 2011), but the cities lack
infrastructure. Most of them do not have energy provision during all day, and the
ones that do—major cities Dili and Bacau—are submitted constantly to outages
(REEEP, 2010).
Turkey’s energy usage is still relatively low, but the growing economy pushes for
an energy policy focused on augmenting supply. The country is a net importer that
mainly uses natural gas, oil and coal as energy sources, the three composing 90% of
Turkey’s energy mix (IEA, 2008b). Therefore, oil diplomacy with its neighbor
countries is necessary and has been successful, closing supply agreements with
Russia, Turkmenistan, Azerbaijan, Iran, Iraq and Egypt. These connections with
Middle East, Russia and other Caspian Sea countries reinforce Turkey’s position as
an important player to Europe’s energy supply, acting as an energy transit point
between the continent and world’s major oil producers (EIA, 2011). Turkey is also
seeking to raise its domestic production. Renewable energy represents about 10% of
energy usage in Turkey, biomass and hydropower being the most important types.
Geothermal, wind and solar energy usage is still small, but rising, as an effort to
improve energy security (IEA, 2008b).
The United Arab Emirates (UAE) has the seventh global largest reserves both of
oil and natural gas, being the hydrocarbons the base to Middle East’s third largest
economy. The main oil exports go to Asia, Japan being the main importer, followed
by South Korea, Thailand and India (EIA, 2011). It also maintains good relations with
the West, due to its moderate foreign policy and its openness to private foreign
investments on the free trade zones. The country has similar characteristics to
neighbor Saudi Arabia, like oil dependency, linked to pursuing of economic
diversification. Both countries are also members of the Organization of Arab
Petroleum Exporting Countries. Saudi Arabia has the largest oil reserves in the
world and stands out as the second largest oil producer and top oil exporter in the
world (BP, 2011b). Its economic plans focus on the pursuit of economic
diversification, especially improving education and stimulating a greater private
sector, although it still has a highly oil-dependent economy. The largest country in
the Middle East is of great strategic importance, particularly because it uses its
capacity to stabilize the global oil market by respecting OPEC’s quotas or raising its
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exports when necessary. The United States sees in Saudi Arabia an important
political and economic ally, but the economic crisis in 2008 caused a sharp drop in
the US demand, while the crude oil exports to Asia grew to 57% of total in 2009 (EIA,
2011). In the same year, China passed the US as the major importer of oil from Saudi
Arabia.
The United States of America is a great energy consumer in the world market.
Even though it holds large oil reserves (BP, 2011b), it still imports a big portion of
the oil it consumes. The US seeks its supplies in similar regions as to Asian countries,
spreading from the Americas onto Africa and to the Middle East (EIA, 2010a). The
country is also involved in initiatives to foster the usage of clean energy
technologies on the Asian continent. That is the main objective underneath the
work of the Asia-Pacific Partnership on Clean Development and Climate (APP). Other
members are Australia, China, India, South Korea, Japan, and Canada. As such, the
nation seeks to foster social development and economic growth by sustainable
means. Nonetheless, the partnership ended in 2011 with hopes of continued
individual work and transfer of projects to other mechanisms (APP, 2011).
The Bolivarian Republic of Venezuela is a major oil producer, holding 15.3% of
the world’s proved oil reserves (BP 2011b), and the only member of the Organization
of the Petroleum Exporting Countries of the Western hemisphere, having an oilbased economy since the 1950s. The oil policy instituted by President Hugo Chávez
stresses the defense of national sovereignty by nationalization of the sector and the
defense of national interests of development. The United States is the biggest
importer of Venezuelan oil, although US’ energy imports from the country are
relatively diminishing in the past years. Asia comes is Venezuela’s third biggest oil
importer after the US and the Caribbean, with about 13% of its total crude oil
exportation, of which 6% are to China (EIA, 2011). Regarding Venezuelan domestic
demand, hydroelectric power is the main source for electricity generation, followed
by natural gas (IEA, 2008a).
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i.
Which actions can the World Bank take to help countries cope with their
growing energy demand?
ii.
How can the World Bank ensure that the developments in the energy sector
reach the poorer shares of the population? How can we be sure to respect
individual, community and national characteristics while doing so?
iii.
How do we improve the quality of energy services without undermining the
requirements for a sustainable future?
iv.
When there are trade-offs between meeting energy needs for economic
production and reducing environmental damages—especially the ones
related to global greenhouse effects—, which principles should guide the
solution of the trade-offs?
v.
Which measures can be taken to help developing countries enlarge their
energy portfolios and therefore increase reliance on renewable sources of
energy?
vi.
Given the importance of energy security and the need to enhance it, how can
cooperation between member countries be advanced to the benefit of all?
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Chapter 6
ASSOCIATION OF SOUTHEAST ASIAN
NATIONS REGIONAL FORUM
INTRODUCTION
Created in 1994, the Association of Southeast Asian Nations Regional Forum
(ARF) was established as a pan-Asiatic multilateral forum for security issues. Today,
the ARF is one of the most important forums for the international security agenda.
Its 27 members consist of all the participants in the security environment of the
Asia-Pacific. As such, it is perhaps the main hub for confidence building in the
region, with Track I and Track II-level meetings in which defense and foreign
ministers participate in rounds of discussion regarding the major obstacles to peace
and stability in Asia.
The Forum comprises now far more members than its parent organization, the
ASEAN. Its 27 members are the ten nations of the ASEAN—Brunei Darussalam,
Cambodia, Indonesia, Lao People’s Democratic Republic, Malaysia, Myanmar, the
Philippines, Singapore, Thailand, and Vietnam—plus Australia, Bangladesh, Canada,
the People’s Republic of China, the European Union (with a single representative),
India, Japan, Democratic People’s Republic of Korea, Republic of Korea, Mongolia,
New Zealand, Pakistan, Papua New Guinea, the Russian Federation, Sri Lanka, TimorLeste and the United States of America.
The ARF is a forum suited to carry out negotiations where other fora have failed.
Its decisions are made by consensus, further increasing its appeal for the concerned
parts. Thus, the Forum has interesting aspects that differentiate it from other
regional and international organisms. While its creation is an initiative from a
regional forum, the wide array of participants assures the possibility of having
debates with conclusions that transcend the boundaries of Southeast Asia.
UFRGSMUN’s ARF proposes two thrilling and noteworthy topics to be debated by
the delegates. Both of them have large impacts on regional and international
security with effects that go well beyond ASEAN. The first of them is the case of the
Korean Peninsula for the stability in Northeast Asia, which is place of one of the
longest contemporary conflicts—the Korean War—. On the other hand, the second
issue deals with stability and security within ASEAN itself: the situation in Myanmar.
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TOPIC A: Stability in Northeast Asia: the Case of the Korean Peninsula
Bruno Magno, Rômulo Barizon Pitt e Pedro Vinícius Pereira Brites
1.1 EARLY HISTORY
Due to its strategic location—situated between the Japanese archipelago,
Manchuria, and central China—the Korean Peninsula has been coveted by its
powerful neighbors throughout its history. Even though division had been regularly
imposed by conflicting powers or native rival dynasties, cultural affinities were
consistently highlighted in the face of foreign threats and the Korean people came
to stand as a distinct social group with a rich millennia-old common history.
The Korean history is deeply marked by its relations with Chinese and Japanese
centres of power. As such, foreign influence always played a major role, being
represented as the expansion of ideals such as Confucianism or as the common
enemy which unified Korean interests. Even though Korean governments fought
against Chinese forces regularly, they were being increasingly influenced by Chinese
culture, particularly by Confucianism and Taoism. It is only with the increasing
importance of Confucian elements that a new class emerged, comprised of scholars
employed by the ruling aristocracy. The invention of the Hangul, Korea’s unique
alphabet, is attributed to these official scholars. When Buddhism was introduced
into the peninsula in the 4th century, it soon got adopted as the state religion in an
effort of the elites to stand outside the Chinese cultural sphere of influence. In fact,
the Korean ancién regime can be described in its beginning as heavily feudal, with
little to no commerce and with the major part of the population working for the
land-owners (slavery was also present).
As stated before, the Chinese have had great influence over the Korean
peninsula. However, it has managed to retain its independence while displaying
respect to its powerful neighbour. For many centuries, Korea remained largely
within the Chinese sphere of influence. While its boundaries with Manchuria make
Korea much closer to Beijing than to Japan, its overseas neighbour started to tip the
balance of regional power by the second half of the 19 th century. In 1876, Japan
forced a commercial treaty with Korea, imposing the first unequal treaty, while
Chinese prestige was on a steady decay with the increasingly ambitious European
presence in East Asia.
Japans control over the peninsula was reinforced after the First Sino-Japanese
War (1894–1895), in which the country defeated China, and the Russo-Japanese War
(1904–1905). By the end of the latter, when Japanese troops moved through Korea to
attack Manchuria, Japan achieved victory and turned Korea into its protectorate in
1905, with the Eulsa Treaty. Before it, Korea had been shut from the outside world
(LEE, 2006). The Japanese protectorate oversaw the signature of unequal treaties
with Japan and, also, with the USA, which accepted Japanese domination, in
exchange for recognition of the similar influence of the United States over the
Philippines (LEE, 2003). .
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In 1910, Japan formally annexed the country as its colony and abolished the
Joseon dynasty, the last and longest ruling dynasty in Korea. As the occupation
became more and more harsh and exploitive for the native populace, the society—
and more importantly, the young and educated leaders—became divided between
those that chose to collaborate, and those that chose to resist in armed struggle,
however, this Japanese rule introduced vast social and economic changes, with the
construction of modern industries and railroads (DUDDEN, 2005). The Korean
peninsula was ruled by Japan from 1910 until the end of World War II (WWII). The
Japanese colonization was a watershed in Korean history, and can be credited in
great part for setting the social elements that caused the Korean War (CUMMINGS,
2010)
After 1919, a partially recognized provisional Korean government-in-exile, under
Syngman Rhee1, a U.S. educated nationalist leader, was established at Shanghai.
Meanwhile in Northeast China, the Revolutionary Army and the Communist People’s
Liberation Army helped organize patriotic Korean refugees against the Japanese
army, who already occupied parts of China. Led by Kim Il-sung2 the Communists
fought the Japanese in Korea and Manchuria The process culminated with the
Second Sino-Japanese War in 1937. After the Japanese attack on Pearl Harbor in
1941, the war merged into the greater conflict of World War II as a major theatre,
known as the Pacific War.
The aftermath of the WWII in East Asia left the country deeply divided. The
armed resistance to Japanese occupation was put forward mainly by the Northeast
Anti-Japanese Alliance, made by communist Chinese and Koreans, while many
elements of the scholar elite were co-opted by the foreign occupants. When the
Japanese were defeated, two governments emerged: One led by Kim Il-sung in the
North, associated with the anti-Japanese guerrillas, and one in the South, with
weaker government framework, that depended on the administration system left by
the Japanese (CUMMINGS, 2010). This further augmented the divide between the
northern and southern regions of the peninsula. With the end of the war
approaching, the USSR declared war against Japan on August 9, 1945. On August 10,
the Red Army occupied the northern part of the Korean peninsula, in accordance
with its policy of not allow to any country use Korea as a platform for an attack
against it, and halted at the 38th parallel (LEE, J., 2006). One month later, the United
States established its occupation zone in the south. In a set of events unpredicted by
the Cairo Conference, the country was divided by its new occupants in North and
South. Great economic hardship resulted when trade was blocked, since the regions
were economically interdependent: Industry and trade were concentrated in the
North and agriculture in the South. Also, the Korean participation in the Japanese
“Greater East Asia Co-Prosperity Sphere”3made its economy but a part of an organic
whole.
1
Syngman Rhee would become the first president of the Republic of Korea.
Kim Il-sung was a member of the Communist party of Korea, and participated of the ant Japanese
guerrilla. Later, he would become the leader of Democratic People’s Republic of Korea.
3
This concept was created in Japan and determined a wish of establishing a “bloc of Asian nations led by
the Japanese and free of Western powers”.
2
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In December 1945 a joint commission was established by the Moscow
Conference. Its aims were to promote an independent Korea after a five-year
trusteeship action facilitated by both regimes. South Korea convened its first
national general elections in 1948, which were boycotted by the Soviets, insisting
that the United States should honour the agreed at the Moscow Conference, Later, in
a controversial election process, Syngman Rhee was elected (although barely), on
July 20. The USSR, in turn, supported the establishment of a communist government
in North Korea, led by Kim Il-sung (BLEIKER, 2005). The main ideas put forward by
the joint commission were, then, completely discarded.
Both Syngman Rhee and Kim Il-sung were determined to reunify Korea under
their own political system. Although reunification talks had continued in the
months before the war, tensions were clearly intensifying, and cross-border
conflicts and small incursions took place along the 38 th Parallel.
1.2. THE KOREAN WAR
After a tense period of constant skirmishes and mutual threats, war erupted in
June 25, 1950. Even today it is not clear who made the first move. The fact is that
both governments were preparing for a decisive war that would result in a unified
Peninsula. What is known is that the North organized first a full-scale manoeuvre,
and what ensued was the evident unpreparedness of the Republic of Korea Army
(ROKA).
The War had three moments: I) the war in the South, when the North was on the
offensive; II) the war in the North, as the United States forces entered the conflict en
masse and pushed the North Korean armies close to the Manchurian border; and III)
the stalemate along the 38th parallel after the entry of China in the conflict and the
subsequent push back of the American-led UN forces.
The guerrilla origins of the northern government made its troops much more
combat-experienced than the disorganized southern forces. Not only the ROKA had
an acute misconception about the balance of forces in the Peninsula, but also
MacArthur’s command held inaccurate ideas of the situation in Korea. 4 Soon after
the beginning of the declared conflict, a great part of the southern forces collapsed
due to inability and unwillingness to fight for the Syngman Rhee’s regime
(CUMMINGS, 2010). The offensive only stopped in the Pusan perimeter, where the
forces under direct American control managed to fend off the attackers. In June,
1950, the United Nations Security Council (UNSC) decided to intervene in order to
restore the status quo ante in the Peninsula, with UNSC Resolution 82. 5 In
September, the southern government began a counter-offensive alongside UN
forces. In the same month, they easily arrived in Incheon, near Seoul, and a few
hours later, entered the occupied city. Exactly three months after the onset of
hostilities, Seoul was regained by the UN forces.
The discussion, then, came to be whether or not to continue with the campaign
against the Korean People’s Army (KPA). Truman and MacArthur were confident
4
Douglas MacArthur was a general of the US army and commandant of the UN forces in the Korea.
The USSR could have used its veto Power, nevertheless was boycotting the UNSC due to the inclusion of
the Republic of China (Taiwan) as a permanent member.
5
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that neither China nor the Soviet Union would risk an all-out war with United States
solely for the Korean Peninsula, and so the decision was made to use the momentum
to end the communist regime of the North (CUMMINGS, 2010). While the UN forces
were exceeding its attributions, the KPA was unaware that the United States would
spare so much in the conflict, and soon found itself in a position of numeric and
tactical disadvantage. So began the “Great Strategic Retreat”, in which Kim Il-sung’
forces made a continued retreat up to the Yalu river basin, while pledging for
Chinese support.
As the American-led forces were closing up on the Chinese border, the People’s
Republic of China entered the conflict decisively, dealing a major blow to
MacArthur’s forces. Soviet air support was sought, but to no avail: Stalin had
reportedly stated that he would not risk a direct war with the United States over the
Korean Peninsula (CUMMINGS, 2010). He would only provide aerial support in the
case the UN forces crossed the Chinese border.
In fact, the Korean War left a clear impression to the fledgling communist
government in mainland China that it could not count on the Soviet Union for
support when needed. Whereas the Peninsula was (and is) of great strategic
importance to Beijing, due to its proximity with the industrial Manchuria, Moscow
did not see such value in the region—or at least not enough to validate an
engagement with the American-led forces.
Despite the incredulity of the United States, the Chinese People’s Liberation
Army (PLA) did indeed entered the conflict, without Soviet support, and pushed
back the American offensive back to the 38th parallel, where the period of trench
warfare began. But as soon as Chinese troops intervened, MacArthur ordered that a
wasteland be created between the war front and the Yalu River border, destroying
from the air “every installation, factory, city, and village over thousands of square
miles of North Korean territory” (CUMMINGS, 2010, p. 40).
In fact, the amount of explosives used by the air force exceeded the total used in
WWII against the Japanese (CUMINGS, 2010). Massive use of napalm 6 against villages
was made in order to, facing the improbability of ending the Northern regime, at
least cripple it beyond recuperation. In addition, according to reports of the local
population, the UN forces, under MacArthur’s command, used a variety of chemical
and biological weapons, ranging from performing gas attacks to sending diseaseridden supplies to northern refugees.
But such massacres did not take place only in the North. Guerrilla warfare also
happened in the South, and the American-led armies were vulnerable to infiltration
and sabotage by communism sympathizers. As such, southern villages were
evacuated or even destroyed upon the mere suspicion of communist presence. Some
massacres gained world-wide attention, as western journalists investigated reports
of war crimes being conducted by the ROKA and the US Army. The most famous are
the No Gun Ri and Geochang massacres. Most of such massacres were conducted by
the South, under the fear of further infiltration of communists behind South’s lines,
6
Napalm is a powder that mixed with gasoline can be used as tactical weapon (Fire bomb fuel gel
mixture). It serves to remove the vegetation cover and to cause panic in human targets. This chemical
solution adheres to the surface, making it potentially flammable.
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against the waves of refugees that were trying to escape from the war front. Also,
both regimes conducted extensive political persecutions in their occupied areas, so
as to ensure that any local opposition would be vanquished.
The Korean War is one the most tragic and striking event in modern East Asian
history, and one of the bloodiest conflicts of the Cold War, being rivalled only by the
Vietnam War. In a succession of military campaigns that involved the US and its
allies, both Koreas and communist China, the whole region was locked into a bitter
conflict where not only millions of lives were lost (estimates, including military and
civilian personnel, range in average from 3.5 to 5 million (CUMMINGS, 2010), but
also the countries’ infra-structure (mainly the North’s) were targeted in massive
bombardments (LEE, 2003).
For almost three years, the Korean people were involved in a brutal fratricidal
war raging on both sides. The UN forces, instead of promoting peace, engaged in
destructive warfare. Without UN authorization, its forces acted against critical
civilian structures, what brought grave difficulties that are felt even today
(HARRISON, 2002). Perhaps the best example of the American-led forces’ determination to systematically obstruct any chances of post-war recuperation was the
continued bombing of the Su’pung hydroelectric dam. Constructed by the Japanese,
it was for many years one of the biggest dams in Asia, and was responsible for a
large share of the Korean energy production (MALKASIAN, 2001).
On June 23, 1953, the peace negotiations process began. The negotiations
resulted in an agreement signed in Panmujon, on July 27, 1953. The only result was a
cease-fire, with no peace treaty being signed. This agreement established a military
demarcation line, and both sides should withdraw two kilometers from this line,
defining, thus, the demilitarized zone between the opposite forces. This Armistice
maintains its validity nowadays, but the absence of a peace treaty persists.
1.3. THE POST-WAR
As defined by the Korean armistice, in 1954, a conference was held, in Geneva, to
discuss the future of the peninsula. However, the conference has not changed the
scenario, and the establishment of two Koreas, Republic of Korea (ROK) and
Democratic People’s Republic of Korea (DPRK) was confirmed. The boundary was
stabilized along a line crossing the 38th parallel called “Korean Demilitarized Zone”
(DMZ). Throughout the 1950s and 1960s, thousands of soldiers were poised on each
side of the demilitarized zone. There have been occasional shooting incidents in the
area.
It was in the post-War that the Juche ideal emerged in the North. Juche refers to a
political thesis of Kim Il-sung, and identifies the Korean masses as the masters of the
country’s development. As such, it is a set of principles that the government uses to
justify its policy decisions (SCOBELL, 2005).
In the first decades, the North maintained its position as the most industrialized
government of the Peninsula, a situation inherited from the Japanese colonization.
But from 1960 on, the South was marked by rapid industrialization, as a result of
economic policy changes and heavy investment from Japan and the United States.
This period of rapid economic development was marked by the emergence of the
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chaebols: Analogous to the Japanese Zaibatsu, they are big business conglomerates
controlled by key families and heavily supported by the government. The
government-chaebol cooperation, alongside the great volume of foreign investments
fomented by the post-Rhee government, made South Korea one of the “Asian
Tigers” and a role model of national development.
Also in the context of the Cold War, there have been annual massive joint
military exercises between South Korea and the United States since 1976, called
“Team Spirit” (nowadays called “Key Resolve”). Such exercises were and are, even
now, a reason for the North’s combative stance.
However, the seventies were also marked by a less hostile attitude of both
Koreas, mainly in due to the emergence of the Nixon Doctrine. The main proposition
of this policy was to structure a regional security architecture based on countries of
the capitalist bloc with friendly relations with the US. Thus, more responsibility was
granted to the local actors over the management of the regional security problems.
In 1971 negotiations between North and South Korea provided the first hope for
peaceful reunification of the peninsula. In November of 1972, an agreement was
reached for the establishment of shared mechanisms aimed towards a future
unification. Meanwhile, the rapprochement of continental China and the United
States further established an environment where peace talks were possible.
The countries met several times during the 1980s to discuss reunification, and in
1990 there were three meetings between the prime ministers of North and South
Korea. These talks have yielded some results, such as the exchange of visits
organized in 1989. The problems blocking complete reunification, however,
continued to be substantial. Two incidents of terrorism against South Korea were
widely attributed to North Korea: in 1983, a bombing that killed several members of
the South Korean government and in 1987, the destruction of a South Korean
airliner over the Thailand-Myanmar border.
With the end of the Soviet Union in 1991, the international scenario was much
more favourable to an end of hostilities in the Peninsula than ever before. But such
opportunity was not taken, for the nuclear issue took the foreground of interKorean relations. Another key element in the post-Kim Il-sung history for North
Korea is the establishment of the “Songun” as the state policy by the administration
of Kim Jong-il. Songun stands for “military first”, in which the Army constitutes the
factor that binds the society together, against the continued external threat. The
fact is that during the most part of the 1990s, North Korea was under what can be
called a “prolonged deathwatch”, so common and confident were predictions of its
demise (STARES & WIT, 2009).
As stated previously, the Korean Peninsula underwent many distresses with
Japanese imperialism and the Cold War dynamics. The heritage of these events not
only exacerbated the ancestral differences between North and South regions, but
became a serious threat to international peace and stability. Thereunto, in this
section the main issues, problems and situations regarding North Korea and interKorean dialogue are going to be described.
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2.1. THE END OF THE COLD WAR
With the fall of the Soviet Union in 1991 the Democratic People’s Republic of
Korea lost her main sponsor. This event brought new hope to the reconciliation of
the people and governments of the peninsula, this new impetus for dialogue has
resulted in the historical “Agreement on Reconcilation, Non-agression, Cooperation,
and Exchange Between North and South”. Still in 1991 both Koreas were accepted as
full members of United Nations. This opened a new door for negotiations between
North and South.
That agreement laid the bases for the future Inter-Korean negotiations, such as
the non-interference on internal matters by both sides, the recognition of the
present nature of the division of the peninsula was temporary. Even the problematic
question of different regimes has been incorporated affirming the necessity for
respect for the government system on both sides, besides this stated that the
relationship between north and south was a temporary and special one and not
between two states and recognized the will of both sides of reunification through
dialogue and peaceful means.
This ambient of dialogue contributed to the evolution of North’s proposal of a
Korean Confederation or Koryo Confederal Democratic Republic with the
publication of the 10 point Programme for the Reunification of the Country in 1993
by the President Kim Il-sung. This document claims for the coexistence of the two
systems under a united pan-national country. Meanwhile South’s President Roh
Tae-woo also encouraged the dialogue for Korean Unification and made great
progress by setting a basis for inter-Korean dialogue and nuclear issues, ensuring
the 1991 agreement and strengthening the rapprochement with North’s side.
However, a series of negative factors contributed to a setback in the
reunification process. First, the closed and crippled North Korean economy, which
did not manage to modernize its system after the fall of USSR. Second, the north
Korean nuclear program, which was born to supply the severe deficit on energy
producing and the threat of a South’s nuclear program. Third, the death of the
“Great Leader” , who was giving signals of cooperation with the Western Powers .
And finally the interference of other countries in the process (HARRISON, 2002).
At this point it is important to remember the importance that foreign powers
has on intra-peninsular dynamics. As stated in the Historical Background, China and
Japan have exerted great influence over Korea since ancestral times, followed by
Russia in 19th century and United States in 20 th century. After the Cold War all these
countries still have interests and exert great influence over the Korean process of
reunification.
2.2. REUNIFICATION POLICIES
As stated above, conversations about reunification occur in some degree since
the 1970s. But in 1998 with the ascension of Kim Dae-jung7 to South Korea
presidency a new posture was adopted by the country in inter-Korean relations. It
was the beginning of the Sunshine Policy. It consisted more of deepening the North–
7
Due to his efforts in favor of inter-Korean dialogue, Kim Dae-jung was granted the Nobel Peace Award in
2000.
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South economic and cultural exchange rather than focus in a specific reunification
policy. The objective was to turn the north’s regime more open and friendly and to
recover DPRK’s economy and only then to start direct negotiations about
reunification.
The most significant result of Sunshine Policy was the North-South Joint
Declaration of June 2000. This document was signed in Pyongyang at June 15, 2000,
by Kim Dae-jung and Kim Jong-il, Kim Il-sung’s son and successor. The two parts
agreed on resolving the question of reunification independently, to settle pending
humanitarian questions8 and the novelty introduced by Sunshine:
[...] to consolidate mutual trust by promoting balanced development of
the national economy through economic cooperation and by
stimulating cooperation and exchanges in civic, cultural, sports,
health, environmental and all other fields (JOINT STATEMENT, 2000).
This document generated a series of programs and projects aiming the
confidence-building and mutual trust among the parts involved. It included
reunions between the families divided by the DMZ and even joint delegations for
sport events. But the pinnacle of the policy was the projects of economic
cooperation that aimed to recover and to start a process of aperture of the North’s
economy. The most famous projects are the Kŭmgangsan Tourist Region,
implemented by President Kim Dae-jung, and the Kaesong Industrial Park (KIP),
opened by Dae-jung’s successor Roh Moo-hyun in 2004.
The Kŭmgangsan Tourist Region consists of a small region in DPRK established to
welcome tourists from ROK to visit Mount Kŭmgangsan. This project was expected
to be the symbol of inter-Korean cultural exchange and the start of a series of
integrated economic and development projects. The Kaesong Industrial Park is an
industrial complex built and managed by Hyundai Asan 5 in the DPRK near the DMZ
along with both North and South governments. The KIP was meant to help to
recover and modernize North’s economy and to start a process of economic and
political opening besides to provide ROK companies cheap labour. It was expected
that KIP would employ around 100,000 workers in its initial stage and about 700,000
by 2012 (REPUBLIC OF KOREA, 2005), but by the end of 2010 the KIP had only 47,000
North Korean employees (HYUNDAI ASAN, 2009).
Today the KIP albeit still being an important source of income to North
government, does not reach the objectives proposed by President Roh Moo-hyun in
2004. Now the KIP is practically only an assembly complex for labour-intensive
manufacturing process with raw materials and intermediate goods from South
Korea. The partial failure of the KIP project can be associated with the end of
Sunshine Policy with the election of Lee Myung-bak who assumed office in February
of 2008 and stated that “any expansion of the economic cooperation at the Kaesong
8
The main humanitarian issue pending between both sides stills the problem of the families separated by
the war and the DMZ.
5
Hyundai Asan is a subsidiary of the Hyundai Group one of the most powerful chaebols of South Korea. It
controls both projects. However, their private controlling is sometimes appointed as one of the motives
of the stagnation of these shared enterprises.
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Industrial Region would only happen if the North resolved the international
standoff over its nuclear weapons” (AP, 2008).
From now on the North’s nuclear program became the central issue in the interKorean dialogue and the relationship between the both sides chilled again. The Lee
administration started a new round of confrontation between North and South
which resulted in missile launch tests and in a nuclear explosion in 2009. Besides
that, there was the sinking of the ROK’s corvette Cheonan in March 2010. In
November of the same year the White Paper of the Ministry of Unification declared
the Sunshine Policy a failure and officially ended the peaceful engagement with the
North side. As a response, the DPRK perpetrated the bombardment of the
Yeonpyeong Island still in November, killing two South Koreans and injuring at least
18 (TWO, 2010).
The present instance of South’s policy for unification is to only renew the North–
South cooperation after the Peninsula’s denuclearization. This precondition was
declared on August 15, 2010, on the occasion of the 65 th anniversary of the
Liberation of Korea. This is a part of Lee Myung-bak’s three step plan to Korea
Unification. They are: a “peace community”, which includes the peninsula
denuclearization, an “economic community” and a “community of Korean Nation”,
which would mark the complete unification of the Peninsula (CHEONG, 2010).
2.3. THE NUCLEAR ISSUE
The Democratic People’s Republic of Korea nuclear program is presently the
biggest impediment to inter-Korean dialogue. However, this program began in mid1960s with Soviet cooperation9 in the Yongbyon atomic energy research complex. In
1977 Pyongyang signed an agreement with the International Atomic Energy Agency
(IAEA) permitting the Agency to inspect its reactors. By the 1980s the DPRK started a
program to develop nuclear weapons, as a way to confront the South’s (CUMMINGS,
2004), but in 1985 North Korea acceded to the Nuclear Non-Proliferation Treaty
(NPT). The South Korean nuclear programme started by the 1970s in response to
Nixon Doctrine of self-defense for its allies. Following the withdrawal of American
troops the south government established a Weapons Exploitation Committee which
decided to acquire nuclear weapons. In 1975, under United States pressure, South
Korea signed the (NPT), however the programme continued clandestinely until the
end of Park Chung Hee government (HYNUNG-A, 2004). In 1992 the two sides signed
the Joint Declaration of the Denuclearization of the Korean Peninsula. Furthermore,
the North signed the nuclear safeguard agreement with the IAEA in that same year.
Therefore, in early 1990s the nuclear question in Korean Peninsula seemed to be
solved. The need to develop a peaceful nuclear program by the North, which started
to suffer from a serious energy production shortage after the Soviet debacle,
encouraged Pyongyang to cooperate with the South and the international
community.
However, with the end of President Roh Tae-woo’s term and the ascension of
hard-line Kim Young-sam, for the first time Pyongyang threatened to withdraw
9
There are suspicions that Myanmar and Syria have somehow cooperated with DPRK’s nuclear program.
However, there is no hard evidence of that.
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from the NPT. DPRK used the “Team Spirit” military exercises between South Korea
and the US—which enact a nuclear war scenario—as a pretext for that (CUMMINGS,
2004). Still, with the beginning of the Clinton administration, the US adopted a new
posture towards DPRK. Even though the tensions continued until 1994, year of the
death of Kim Il-sung, the DPRK and the US managed to reach an agreement. The
results are the Joint Statement between US and DPRK of 1993 which laid down the
bases for the Agreed Framework of 1994 also between the DPRK and US. These
agreements confirmed the desire of the two countries of a nuclear weapons free
Korean Peninsula. Additionally, American government also compromised to supply
technology and equipments to build a Low Water Reactors (LWR) in order to replace
the graphite-moderated10 ones along with a regular supply of crude oil. In return the
DPRK would completely dismantle its nuclear program.
In 1995 a consortium between Japan, the United States, ROK founded KEDO—the
Korean Peninsula Energy Development Organization. Later on, other countries also
joined the organization, such as Australia, New Zealand, European Union, Canada,
Indonesia, Chile, Argentina, Poland, Czech Republic and Uzbekistan. KEDO’s mission
was mainly to implement and supervise the completion of the 1994 Agreed
Framework.
However, with the Bush administration (2001–2009) the US posture towards
DPRK shifted towards confrontation, ignoring the ROK’s Sunshine Policy active since
1998. After the non-observance of the 1994 Agreed Framework by the US, which
delayed the supply of oil and did not deliver the LWRs to DPRK, President Bush in
the 2002 State of the Union address added the North Korean government in the socalled “Axis of Evil” and returned to threat DPRK with nuclear weapons, violating
the 1953 armistice (CUMMINGS, 2004). The tensions surrounding the North Korean
nuclear program culminated in 2003 with the DPRK withdrawal from the NPT, which
coincided with South’s presidential elections and the start of Roh Moo-hyun’s term.
These events resulted in a new framework to discuss the nuclear issue, this time
bringing officially the People’s Republic of China, Japan and Russia to the
negotiation table. It was the beginning of the Six-party talks (SPT). The main
objective of the SPT was to find a way to resume the agenda of the 1994 Agreed
Framework. By 2005 the SPT reached some success, it was agreed that the question
of the LWR would be discussed “at an appropriated time” (JOINT STATEMENT, 2005)
and the commitment with the denuclearization of the Peninsula was reassured, as
stated on the 1992 Korean Peninsula Denuclearization Declaration.
However, after the freezing of North Korean assets in Macau, and other financial
centres in due to the pressure made by United States the DPRK government realized
its first nuclear test on July 5, 2006. This act resulted in the UNSC resolution 1718
with the first UN sanctions against DPRK, which already suffered a comprehensive
embargo imposed by the United States and its allies due the state of war between
these countries, and inclusion of DPRK on the list of states sponsors of terrorism.
The SPT would reach new achievement only in 2007, when the North agreed to shut
down its main nuclear facility of Yongbyon in exchange for 500 tons of heavy oil
10
The basic difference is the cooling process and the moderation process. The first one is cheaper and
safer than the second one.
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fuel. The closure of the Yongbyon facility was confirmed by the IAEA and in the last
round of negotiations was agreed that the DPRK was complying with its part of the
agreement. Moreover, the shipment of heavy oil fuel would be increased by 1000
tons and the US would remove DPRK from the states sponsors of terrorism list and
lift the embargo imposed due to the state of war.
Nonetheless, only a reduced amount of heavy oil fuel was delivered (LEE, 2006).
Besides that, in 2008 Lee Myung-bak assumed the presidency in South Korea, ending
the Sunshine Policy and declaring that ROK will only return to negotiation after the
complete dismantling of the North’s nuclear program. These setbacks resulted in
2009 North’s missile and subsequent nuclear test that was followed by the UNSC
resolution 1874. The conversations about the nuclear issue have been stalled since
then.
2.4. ECONOMIC CONDITIONS
With the end of Soviet Union the North Korean economy suffered a major
setback, because it lost its main trade partner. This, combined with the modest
economy of China in the 1990s, North’s second partner, the continuous droughts
that generated the great 1995 famine and the restrictions imposed by the US “Trade
With the Enemy Act” (TWEA) provoked a serious blow on an already fragile
economy.
These events made the North seek the normalization of relations with the US
and South Korea and the deepening the economic bonds with China. The results of
these efforts are the 1994 Agreed Framework between the US and DPRK, the
Sunshine Policy in South Korea, and the North’s special economic zones (SEZ).
Notwithstanding that, the problematic relationship with the US and the failure
of the Sunshine policy has turned China DPRK’s main trade partner (NANTO &
MANYIN, 2010). The subsequent nuclear embroil had also prevented any kind of
improvement in the relations with US and its allies. The DPRK’s composition of
trading partners is not confined to China, despite being the largest one. The ROK is
the second major partner, including being the main destination for DPRK’s exports
in the recent years (NANTO & MAYIN, 2010). This interdependence has increased
recently; China and ROK have grown in terms of participation in trade composition
(BAJORIA, 2010).
Concerning the United States, it was only in 2008 that the TWEA restrictions on
North Korea were lifted (US TREASURY, 2011). However, the North’s regime was
then framed under the International Emergency Economic Powers Act and the
National Emergencies Act. These, alongside US executive actions 11, have practically
the same effects that the TWEA, including multinational economic embargoes
against governments in armed conflict with US at discretion of the President (US,
1977).
Besides the sanctions and embargoes imposed by the US and its allies, there are
also the UNSC resolutions 1718 and 1874, of 2006 and 2009 respectively (UN, 2006;
2009). They demand all United Nations members to ban the export of military
11
Among these executive orders stands out the 13446, 13551 and 13570. These orders defined blocks to
property and financial transactions with DPRK.
210
equipment, nuclear and missile development goods or dual-use goods, referent to
the latter. The resolutions also prohibit the export of luxury goods to DPRK, but the
countries are free to set their own lists of what they consider to be luxury goods
(UN, 2006). Thus, some countries even ban the export of TV sets, computers and
beverages to DPRK, classifying them as luxury goods (CUMMINGS, 2004).
All these sanctions have a major effect on North’s economy which is basically
composed by industry and services. These two sectors respond for about 75 percent
of North Korean economy (CIA, 2011). Due to the poor agricultural land and to large
mineral reserves, since the beginning of the 20th century the northern region of the
Korean Peninsula has specialized in the industry and services sectors. But the
present sanctions impede the modernization of North Korea’s industrial park, by
difficulting the import and the financing of capital goods such as new machinery
and softwares. Thus, the normalization of DPRK relations with the rest of the world
is of the uttermost importance to alleviate its economic conditions, and this
normalization passes not only by solving the nuclear issue, but also by reaching a
Peace Treaty between US, ROK and DPRK to finally exterminate the embargoes and
impediments to North Korea of being a full member in the international community.
2.5. HUMANITARIAN CONDITIONS
The humanitarian situation is one of the greatest problems faced by the DPRK.
Over the last 15 years, it is estimated that 10% of the DPRK’s population died of
starvation and hunger-related illness (Global security). In addition, the country
suffers from the restrictions of medicines and medical supplies that allow the
growth of various diseases such as tuberculosis, malaria and typhus. This situation
contributes to the fear of massive refugee inflow in case the situation worsens (LEE,
2006).
The humanitarian crisis began in the mid-1990s, when there was the first great
wave of deaths due to hunger. 12 Despite a relative improvement in the early 2000s,
the situation was getting worse after 2004, with the failure of economic reforms
(WORLD FOOD PROGRAMME, 2008). Thus, food prices continued to rise and food
rationing remained. The Food and Agriculture Organization (FAO) reported that
between 2007 and 2008 the food deficit that has persisted since 2001 has doubled.
The DPRK faces regular food stringency, and has one of the highest rates of
malnutrition in Asia (WORLD FOOD PROGRAMME, 2011). In accordance with FAO,
one third of all children under five years are chronically malnourished or stunted.
The last winter was bitter what increased the spread of diseases, mainly
tuberculosis, and the gap of food (WORLD HEALTH ORGANIZATION, 2011).
2.6. PERSPECTIVES
On the last decade other relevant issues arose in the Korean agenda such as the
maritime border disputes on the Western Sea. Heritage from the War period the
present maritime border line between North and South was unilaterally imposed by
the US Command on August 30, 1953. Also known as Northern Limit Line (NLL) the
12
This great famine was known as the “arduous March”.
211
western maritime border between the two Koreas began to be contested by the
North side in 1973.
But it was only in 1999 that the conflict on the NLL began, with the first battle of
Yeonpyeong that resulted in around 30 deaths and approximately 70 wounded and a
North torpedo boat sunk. From 1999 to this day another several incidents occurred
around this line culminating with the sinking of the ROK Cheonan corvette and the
bombardment of Yeonpyeong Island in 2010.
These events deteriorated even further the fragile relationship between North
and South. From now on the South begins to demand apologize for the Cheonan
sinking alongside the full freezing of North’s nuclear program as a precondition to
return to the negotiation table. This shows the importance of the settlement of the
maritime west border to enhance further inter Korean dialogue.
Nevertheless, this year has also marked a turning point for the North’s regime
with new attempts of economic aperture. After a series of visits to China and one
visit to Russia by the North Korean leader Kim Jong-il, a series of economic
agreements was signed, including the implementation of a new SEZ on China–North
Korea border and the construction of a pipeline from Russia to South Korea. 13 Even
famous American companies, such as Coca Cola and the Kentucky Fried Chicken, and
internationally renowned news agencies, such as Reuters and the Associated Press,
may now operate in DPRK (HAE-IN, 2011). Also as a result of these visits and from
the last ARF the North regime declared last August during Kim’s visit to Russia, that
want an early resumption of the Six-party talks without any precondition and it was
disposed to freeze its nuclear and missile program in order to achieve that.
However, the South has not moved from its initial position and still demands an
apology for the Cheonan sinking as a precondition to return to dialogues.
Since its creation the ARF was fundamental to promote confidence building and
dialogue between the parts involved in the Korean issue. It is important to
remember that ARF is one of the few regular forums that DPRK, ROK, USA, meet at
the same time.
Previous ARF Chairman’s Statements had already mentioned the Korean
Peninsula question, mainly the nuclear issue. It is already a consensus for all ARF
members that the Korean Peninsula must be denuclearized. However, since the
advent of the Six Part Talks the ARF became a secondary floor to discuss Korean
matters and with the 2007 North Korea Denuclearization Action Plan it seemed that
the reintegration of DPRK into the International Community was only a matter of
time.
But, with the end of the SPT and new nuclear tests made by North Korea, the ARF
returned to be the most important multilateral forum regarding security issues
about Korean Peninsula. In July 2011, in Indonesia occurred the 18 th ARF and the
Korean nuclear issue was one of the highlights of the meeting. Besides recalling the
ARF commitment with a denuclearized Korean Peninsula the 18th ARF Chairman’s
13
This pipeline has been planned and awaited since the 1990s (SCOBELL, 2005).
212
Statement registered the first step towards the resumption of the SPT, a sideline
meeting between both Koreas SPT representatives.
According the statement the representatives recalled the importance of the
inter-Korean dialogue and ARF to the resumption of the SPT. Although no concrete
measure was announced at the occasion the statement reaffirmed the central role
that ARF must have on next years to solve inter-Korean problems and promote
dialogue.
4. BLOC POSITIONS
The Democratic People’s Republic of Korea faces severe international pressure
on its nuclear program and its combative stance. It has been accused, in 2010, of the
sinking of the Cheonan, a South Korean corvette, by an international committee led
by South Korea. Furthermore, it has engaged South Korea militarily with the
artillery shelling of the Yeonpyeong Island, which is in disputed territory and is
occupied by South Korea, allegedly in response to the US–South Korea joint military
drills in the Yellow Sea.
Currently, North Korea is under a comprehensive economic embargo led by the
United States, aimed at diminishing the nuclear capabilities of the North Korean
regime. Still, its greatest opponent is the current South Korean administration,
which reversed the Sunshine Policy to a hardliner stance. Even though it has the
pacific unification of the Korean Peninsula as one of the principles of its foreign
policy, Pyongyang’s main aims are, presently, the improvement of its deterrence
capacities in face of the American apparatus and to increase the international
recognition of its regime, primarily through China. The DPRK states that the Sixparty Talks cannot resume as long as the embargoes remain and as the US and South
Korea militaries continue with the recurrent large-scale war games. Another
obstacle is the demand, by South Korea and the US, of the complete destruction of
its nuclear warhead producing capacities, inadmissible over the perception of
menace posed by the “Responsibility to Protect” argument used by NATO. 14 It should
be noted that one of the main long-term objectives of North Korean negotiators is
the signature of a Peace Treaty to legally end the Korean War.
The Republic of Korea has recently abandoned the “Sunshine” elements of its
policy towards the DPRK, over the perception of being instrumental to the Northern
regime in its search for international recognition and economic aid. Its main
objective is to disarm the offensive capabilities of the North, which includes
denuclearization. While in the “Sunshine” years such goal was sought through
economic aid and a more pro-China stance, in the current administration it is
sought through the fostering of ROK-US ties.
Currently, Seoul insists that the North should apologize for the Cheonan incident
as a preliminary step to reactivate the Inter-Korean talks, separating that demand
14
The principle of Responsibility to Protects is used by NATO to justify humanitarian interventions.
According to it, if a state is unwilling or unable to protect the civilians in its own territory against massive
human rights violations, including but not limited to ethnic cleansing and genocide, it is responsibility of
the international community to do it (EVANS, 2002): to intervene.
213
from the process of denuclearization. As the most vocal attacker of the Northern
regime, it also has an ambiguous relation with China, one of its greatest economic
partners but also the main supporter of the DPRK.
The United States of America supports the South Korean position, as the ROK is
one of its allies in the region, alongside Australia, Japan, Philippines and Thailand.
The main effort of the Obama administration, international security concerned, is
progressive denuclearization. As such, it strives to implement the 2005 Joint
Statement and to bring stability to the Peninsula through the nuclear disarmament
of the North. The US has a large military presence throughout the Asia-Pacific, and
would certainly support the South in the case of an invasion from the North.
Although it has no land-based nuclear-warhead missiles on the region, its naval
capabilities fulfil the role of a nuclear deterrent.
Claiming that the North was not complying with the prescriptions of the Joint
Statement, the Bush administration halted the economic aid that was being given to
the DPRK and started imposing sanctions on the regime. The US affirms that it will
end the embargo once North Korea ends its military nuclear program irrevocably. It
also strives for the resumption of the SPT, and is currently pushing to send
inspectors to the DPRK.
The People’s Republic of China partnership with the DPRK is based not only on
ideology, but also on strategy. North Korea sits in a key point to Chinese defence
thinking (ARF, 2010), given its geographic importance. Beyond the friendship
between the two communist parties, it is paramount that the situation in North
Korea does not evolve into chaos. Because of that, China supports Pyongyang and
attempts to give it the means for the achievement of economic development.
China promotes restraint in the actions of the parts involved. Although the
DPRK–PRC alliance has been a pillar of regional security, it is not of Chinese interest
to have further polarization in the Peninsula. The objective of Beijing is to defuse
the current level of tension and to bring both Koreas back to the negotiation table.
For the resumption of the SPT, China proposes a three-stage process: InterKorean talks, followed by bilateral talks between the US and North Korea, and
eventually the resumption of the Six-party talks. By offering up inter-Korean talks
as the opening move, the Chinese proposal isolates South Korea from the US and
puts considerable pressure on Seoul not to act as an impediment.
Even though the Russian Federation backs the US–ROK call for the
denuclearization of the North along the lines of the NPT and previous resolutions of
the UN, it shares some geopolitical preoccupations with China. Having borders with
North Korea means that a succession crisis or an economic meltdown in the
neighbour country would negatively affect Russia. As such, the Russian approach
concurs with the US–ROK objectives, but the country does not firmly support the
increased securitization towards Pyongyang (ARF,2010). Also, there has been an
increasing strategic partnership with South Korea in the Medvedev administration,
covering not only security matters, but also technology and research (JUNG &
FEDOROVSKIY, 2010). Meanwhile, the relations with China were shaken since the
war in Georgia (RAHMAN, 2009).
214
Japan is a US ally and, in resemblance to South Korea, perceives the nuclear
program of the North to be a direct menace. Being on the frontline means that Japan
shares the positions of Washington and Seoul, but also tries to ease the tension
when its levels are dangerously high. Tokyo is concerned with the full
implementation of the Joint Statement of the Six-party talks, and that understands
that advancing Japan–North Korea relations is necessary for that end. The basis of
its diplomacy towards the DPRK is the Japan–North Korea Pyongyang Declaration, in
which the issue of the abduction of Japanese citizens by North Korean officials is
highlighted by Tokyo (MOFA, 2004).
In line with the Guidelines on the EU’s Foreign and Security Policy in East Asia,
the European Union has attached the utmost importance to denuclearization as a
preliminary need in order to achieve stability. The EU has repeatedly expressed
strong support for the Six-party talks and encouraged inter-Korean reconciliation
(EEAS, 2011). Still, the EU reminds of the importance of UNSC Resolution 1874
condemning the nuclear test conducted by the DPRK in May 2009.
Australia and Canada participated in the international investigation which
concluded on the participation of North Korea in the sinking of the Cheonan. The
Australian position adds that the members of the ARF should increase their
vigilance over possible trans-shipment of goods through their jurisdictions that
violate UN sanctions. New Zealand also supports this position and has had a long
standing commitment of military observers to the United Nations Command
Military Armistice Commission (UNCMAC) in Korea.
Mongolia participates, alongside China, South Korea and Russia, of the Great
Tumen Initiative, a major joint mechanism in Northeast Asia supported by the
UNDP. Therefore, its approach on the subject of confidence-building in the region is
that economic possibilities can offer another way towards integration.
Malaysia associates the question in the Korean Peninsula with the nuclear
proliferation issue, and defends that in ensuring that the right to peaceful uses of
nuclear energy is not abused. The three main points are that States must: exercise
full transparency in nuclear programs; subject those programs to the full scope of
the IAEA’s safeguards and verification, including the Additional Protocol; and
adhere to the provisions of the NPT.
Singapore, Indonesia and Vietnam fear the destabilization effect of the
securitization in the Korean Peninsula and have taken a neutral stance on the
subject. Singapore perceives the mutual provocative actions in the Korean situation
as disruptive of stability in the entire region, and refrains from confirming the
North Korean participation in the Cheonan sinking. Indonesia reaffirms the
importance of confidence-building in the process of resumption of the SPT, in which
the ARF should take a major role. Vietnam has taken a passive stance and is waiting
for initiatives or efforts brought forward by concerned parties, a behaviour shared
with Papua New Guinea.
Thailand and the Philippines are concerned with the relation of the elevated
tension and nuclear proliferation in the Korean Peninsula, both being US allies.
Philippines backing the American position on this issue could ensure American
215
support on the issue of Chinese presence in the South China Sea. Thai diplomacy
focuses on the threats represented by an ever more nuclearized Asia-Pacific.
India¸ Pakistan, Bangladesh and Sri Lanka defend the immediate resumption of
the SPT as the worsening of the Korean situation could also affect South Asia. India,
as a rising global power, is expected to help the process in a mediator role—which,
by itself, calls the attention of Pakistan.
Myanmar’s main preoccupation is to legitimize its governmental democratic
process. Thus, it will utilize its opportunities of participation in multilateral
dialogue as a mean to secure international recognition of its regime.
In the line of other ASEAN countries, Brunei, Laos and Cambodia also call for the
resumption of the Six-party talks, as soon as possible, in order to prevent further
escalation of the tension which will endanger peace in the Korean Peninsula as well
as in the whole region of the Asia-Pacific. In addition, Laos will be paying attention
to the global powers’ game as it seeks their economic support. As Timor-Leste seeks
to gain ASEAN membership, it will also share the view of the importance of the SPT.
i.
How to best conduce confidence-building processes in order to bring both
governments in the Korean Peninsula back to the Six-party talks?
ii.
How to best increase confidence between the two governments in the Korean
Peninsula to limit the local arms race, and stop the often violent
demonstrations of force?
iii.
How to create a long-term solution to the North’s humanitarian and
economic problems and integrate the country to the international society?
iv.
Is it possible to finally reach a peace treaty in one of the longest conflicts of
the 20th century?
v.
Is it possible to create a common roadmap to solve the Korean unification
question?
216
TOPIC B: The situation in Myanmar
Marcelo de Mello Kanter e Bruno Kern Duarte
The people of Burma descend from Mongol tribes who migrated to that region
on the 7th century. Theirs was an expansionist and imperialist state until a more
effective presence of the British, which started to happen in the second quarter of
the 19th century. In that time, the Burmese state overpowered the region of east
Bengal, where they took resources for the long war against Siam (nowadays
Thailand). In this conflict, the Burmese conquered de western part of the Malay
Peninsula.
Frequent riots in the occupied region made the Burmese government
believe that the British were supporting these movements. Moreover, the court did
not have knowledge of the British real capacities. These factors led the Burmese to
attack East Bengal, giving rise to the first Anglo-Burmese war. The British, through
the Indian Empire, replied to that offensive, and then won this war. As a result of the
conflict, they occupied much of the Burmese State, namely the regions of Arakan, on
the western coast, Assam, on the border with India, and Tenasserim, on the
southern coasts. High reparation had to be paid: The Great Britain diplomacy
thought that indulgence would lead to alignment (FIELDHOUSE, 1965).
Until 1880, the British had no prime political or strategic interests in Burma, so
they did not need an official occupation (FIELDHOUSE, 1973). From 1826 until 1840,
the British tried to impose administrative techniques then common in that region to
deal with indigenous states: The influence was exercised by a permanent resident at
the court, which advised the natives in matters of domestic policy, he would try
always to protect the British will and ensure that no other power would establish a
potentially dangerous influence in the reign. If this system worked as it had done in
other states, there would be no need for a tighter control. It would make the British
have an ascendancy over the political decisions of the Burmese State, determining
their trading partners and political relations. However, the English plan was not
feasible due to the instability of the internal politics of the native reign.
Since the system depended on the goodwill of the Burmese elite, which never
accepted the defeat in the war and the territorial concessions imposed by the
British, they by no means collaborated in all terms with the colonialists. The failure
of the policy of direct influence was evident in 1840, when the British withdrew
their resident of the Court of Ava (the Burmese court) and then broke up the
diplomatic relations with the reign.
Burma could not isolate itself from the world, since it still had great amount of
trade with other countries, mainly with the British. But the crisis took a time to
happen, because the British were primarily concerned with Afghanistan. The second
Anglo-Burmese war occurred in 1852 and emerged from a conflict between British
merchants and the governor of Rangoon over sovereign matters. The United
Kingdom won this war too, conquering low Burma. However, the Burmese court
never accepted the territorial loss, and a peace treaty was never signed.
217
In the third quarter of the nineteenth century, the relationship between the two
countries had grown up. The commercial exchange developed, jointly with the
opening of Upper Burma, what allowed a larger volume of British investment mostly
through agreements for the construction of a railway. It would connect the port of
Rangoon with the Chinese border and would, then, make China’s valuable products
accessible for the British. The establishment of these trade agreements and the
permission for a permanent resident stay at the Court of Ava seemed to satisfy all
British interests in the reign and seemed to create a basis for a future collaboration.
Nevertheless, the relationship deteriorated sharply after a dynastic transition in the
native kingdom that changed their attitude towards Great Britain.
The third Anglo-Burmese war took place in the last quarter of the 19 th century,
when the British invaded upper Burma, overthrowing the monarchy and
incorporating the territory. This action was motivated by the dangerous approach of
the Burmese court with the French, but it might be considered as a consequence of
the situation of that period, since similar conquests were occurring in the French
Indochina. The annexation only took place due to that approach, changing the
former posture of keeping the Asian state in their sphere of influence, determining
their foreign relations, but allowing some autonomy for the indigenous court.
In the process of replacement of the Burmese monarchy for a new government
subordinated to Great Britain, new classes were formed and wildly changed the
structure of civil administration and of the society in general. The British invasion
and the later pacification program, together with the high influx of Chinese and
Indian immigrants and the organization of a separated administration controlled by
local minorities, were a traumatic experience to Burma’s society. It forced a
“cultural disintegration” that is still reflected nowadays (TROCKI, 2008).
The low areas of the country were being modernized under the direct rule of the
British. In contrast, on upper Burma, they gave the power to local minorities and
exercised control indirectly, which made the region much less economically
developed. Burma’s political center was displaced from Mandalay, the former capital
from the Burmese state—which was placed on the highlands—, and relocated in
Rangoon, situated on a coastal area, where the British concentrated their actions.
The British used the same administration system that they had already used in
India, but this destroyed the traditional rural socio-political order in the region. The
power was given to sub-district officers that had as main tasks the hearing of cases
and toll collection. Other state’s functions, as education, sanitation and other
responsibilities, were separated on special departments and were not subordinated
to the district officers (TROCKI, 2008).
Religion was the cause of many problems for the integration of the Burmese
society. The Buddhist monks used to have a key role in the traditional education
and, when the British started a modern schooling program, they rebelled against it.
Still, as no other institutions replaced the monarchy’s authority over the monks,
they were not subordinate to anyone. Thus, they eventually had conflicts with other
social groups, especially the ones that had been educated by missionaries brought
by the British.
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The subordination to the British Empire and the way that policies were made
within the country, led to the development of armed nationalist groups which in
their turn started to struggle for independence. The most important of these groups
was the Burmese Independence Army (BIA), which had Aung San and Ne Win as the
leaders. In the Second World War, the Japanese troops invaded Burma through
Thailand. They were then supported by nationalists groups, such as BIA. Japan
achieved victory, but the war was not as short as they had calculated: Many groups
which backed the British occupation joined allied forces against Japan.
During the occupation, Burma was formally independent, but Japan placed a
“puppet dictator” who acted according to Japanese interests. Thereby, the
nationalists who supported the Japanese invasion did not have what they expected
with the expulsion of the British, so they switched sides and began supporting the
allies. This brought to prominence nationalist movements and young leaders, such
as Aung San and Ne Win, who would later play an important role in Burmese
politics.
At the end of the Second World War in 1945, much of the infrastructure and
industry of the country had been destroyed, mainly due to scorched-earth tactics
employed by the British on their withdrawal (and later by the Japanese as well). The
impact was such that only thirty years later the country returned to per capita
income values equal to those of the pre-war (STEINBERG, 2010). Social impacts were
considerable either. The war exacerbated tensions between different social groups,
embroiling many massacres. This has engendered alliances and enmities that have
persisted until today.
Although the subordination to the United Kingdom remained until 1948, the
Japanese occupation sealed the end of the colonial era. After the independence in
1948, Burma has remained unified in the form of a federation, in an endeavor to
develop a parliamentary democracy in a multiethnic state. Thus, it was an
experiment that aimed to transpose a western democracy into a context of an
eastern state still at formation. Each constituent state of the federation had its own
government where the minorities, such as the Shan, Chin, Kachin and others, could
elect their representatives. However, they were still subordinated to the central
government, which controlled the finances. So the Burman majority, represented by
the Anti-Fascist People’s Freedom League (AFPFL), kept the power. Furthermore, in
this period, the military had an important role in maintaining the independence and
integration of the country, what made them respected and influent in the society.
Nevertheless, the Burmese state unit was not achieved during the years of the
civil government. The integration of the different groups in Burma on the postindependence was lower than in the colonial era (STEINBERG, 2010). The decline of
the national unity reflected in the increase of the riots in the country. Ethnic
minorities committed riots constantly, supported by foreign powers. China, the US,
India, Pakistan, the UK and Thailand interfered in internal issues of Burma,
endorsing different rebel groups (STEINBERG, 2010).
The Chinese civil war—which ended in 1949 with the victory of the Communist
Party over the Chinese Nationalist Party (Kuomintang)—had a destabilizing role in
the consolidation process of the Burmese state. Many remaining troops of the
219
Chinese Nationalist Party established themselves on the border with Burma and
began cultivating poppy to profit from drug trafficking. They were supported by the
United States and also secured an alliance with locals, which were not close to the
central government (STEINBERG, 2010). As a result, poppy cultivation for heroin
production and exportation spread all over the mountainous regions. Yet, the most
important effect was the one involving the military. Since the local administration
was not able to control much of what was under their responsibility, the army came
to directly take care of many countryside regions. This fact added to the belief that
the military should govern the country, evidenced by the emergence of the
Caretaker Government nine years later.
In 1958, the military, faced with imminent disintegration of the AFPFL—the
coalition that had been ruling the country since 1948— and fearing civil war,
proposed to govern the country for some time to restore the order, to eliminate the
insurgents, and to prepare Burma for new elections. The Prime Minister U Nu had
no choice and agreed with the idea that the military should rule the country during
this instability period. Thereafter, the Caretaker Government was formed. It
remained in power for eighteen months and withdrew voluntarily after elections,
which brought U Nu back into power. His second administration was weak and
ineffectual, rebellions increased and it had a bad economic performance. All of that
made the military become concerned about the situation in the country in the
following years.
The reason given by the militaries for the coup of 1962 was the preservation of
the union of the country, which was threatened even more after the
implementation of a law that decreed Buddhism as the official religion of the
country. Thus, the coup would be a defense against an imminent dissolution of the
state. On the other hand, the coup, in the view of opponents, was just an
arrangement to increase the power of the militaries. Besides ensuring the union of
Burma, the military intended to end the corruption, which had spread in the civil
government, to provide groundwork for a forward military hegemony in the state,
and to strengthen the socialist basis of the country’s economy by means of the
doctrine included in the “Burmese Way to Socialism”.
This doctrine was set forth in a document published on 1962. This plan tried to
do an amalgam of socialism, Buddhist principles and humanism, in an attempt to be
a doctrine which intended to unite the country on a single cause. But the plan
economically destroyed the country, which could have become the richest one in
Southeast Asia. The military closed the country borders and ruled almost in a total
isolation through the Burmese Socialist Programme Party (BSPP).
Accordingly, immediately after the coup, the military dismantled all aspects of
institutional and personal power that could threaten their control. The repression
against students, who were in the forefront of nationalist and anti-colonial protests,
was very strong, which created, from the beginning of the military administration, a
large opposition by some groups inside the country.
Shortly afterwards, an internal debate about which government system would be
more effective, the federalist or the unitary state system, developed in the military.
In the constitution of 1974, it was determined that the Burmese State would be
220
highly centralized. This constitution was approved in a plebiscite in which the
minorities voted massively unfavorably, because they would lose their autonomy
from the Burman majority.
The constitution was based on those from then authoritarian Eastern Europe:
The country came to be ruled by a single party, the BSPP, and its official name was
changed to “Socialist Republic of the Union of Burma”. Also, because they were
centralizing the power, without local autonomy, the relation between the regions
with the ethnical minorities and the Burman majority were increasingly tense.
2.1. THE 1988 COUP AND THE SLORC
The decade of 1980 was marked by the economic collapse of Burma, to the point
that the government applied to be included in the category of least developed
nation in the UN, despite technically having a higher literacy level than would
normally be allowed for nations of that status, in order to be eligible to receive loans
with high subsidies (GUO, 2007; STEINBERG, 2010). Although this fact was initially
hidden from the population, it did eventually become known, aggravating the
popular opinion of the regime, already damaged by the economic collapse and the
political frustrations. The resulting tensions came to a head starting in 1987, when
several student demonstrations took place, and only grew as a response to
repressive efforts. As the protests grew, the government seemed incapable of
controlling the situation, and Ne Win resigned from office. The uprising became
widespread by August 1988 and, in the context of government changes in the
Philippines in 1986 and the Republic of Korea in 1987, the possibility of regime
change seemed very concrete. Fears of the dissolution of the state and foreign
intervention, fueled by the appearance of an US fleet off the coast and a large
mobilization of the Chinese military along the border, ultimately motivated the
Tatmadaw (the military) to stage a new coup d’état, to maintain its hold on power. As
a result, in September 1988, the State Law and Order Restoration Council (SLORC)
was instituted, led by Saw Maung (to be followed by Than Shwe after 1992), with the
promise of holding multiparty elections. The country became then “the world’s only
militant Buddhist state” (KHANNA, 2008, p. 293).
Amidst repression, the country’s name was officially changed to Myanmar in
1989, reflecting a stance of attempting to represent all ethnic groups, Burma being
perceived as reflecting only the Burman population, unlike Myanmar, a purely
geographical denomination. In 1990, elections were prepared to take place, with the
formation of political parties. At this moment, Aung San Suu Kyi, the daughter of
Aung San, returned to the country from her exile in Britain, founding the National
League for Democracy (NLD). Despite being maintained in house arrest during the
electoral process, her party managed to win 392 of the 485 chairs in the Assembly,
notwithstanding some accusations of intimidation (LIBRELOTTO, 2008). After this
electoral victory, Suu Kyi was released, and was widely expected to take office soon
after. However, while the NLD attempted to hasten the elaboration of a Constitution
in order to take office as soon as was possible, the SLORC signaled its unwillingness
to let go from power immediately, even attempting to negotiate Aung San Suu Kyi’s
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departure from the country, unsuccessfully. The NLD’s refusal to limit its political
activity led to a growing crackdown by the SLORC, including the renewed house
arrest of Aung San Suu Kyi, whose resistance and criticism of the SLORC’s policies
earned her the Nobel Peace Prize in 1991.
The following years were marked by the repression of former protesters and
efforts to restore order. Chief among these was the establishment, in 1992, of the
National Convention in order to institute a new Constitution, counting with the
participation of representatives of ethnic groups and the NLD. In 1995, Aung San Suu
Kyi was released from home arrest, and, in the following year, the NLD left the
National Convention due to its alleged underrepresentation, soon followed by the
adjournment of the Convention itself. Another important initiative was the
incorporation of a large number of young officers in order to renew institutional
cadres of the Tatmadaw. Regarding the ethnic groups, at this time General Khin
Nyunt, 1st Secretary of the SLORC, engineered the ceasefire policy, establishing
around twenty five agreements with local factions. Under these agreements, local
paramilitary groups would be entitled to varying degrees of control, from effective
military occupation by the government with little local autonomy, to almost
complete local authority, with some cases in which government troops may only
enter if permitted (STEINBERG, 2010).
On the regional level, in 1996 Myanmar joined the ASEAN Regional Forum, and,
in the following year, joined ASEAN; probably due to Gen. Khin Nyunt’s initiative.
This granted the country some necessary financial support, and recognition. On the
other hand, certain States, especially European countries and the USA, made it clear
to the organization that they were favorable to pressure being applied on Myanmar
due to its poor human rights record. These external pressures were mostly
perceived as opposed to the policy of non-interference in internal matters that
characterizes ASEAN, but in the context of the Asian economic crisis they had
significant weight, being especially supported by Thailand.
However, in 1998, a new concept was coined: enhanced interaction. According to
this idea, internal problems with spillover effects and transnational problems
should be discussed within ASEAN. Even then, though, the members of ASEAN
refused to intervene in internal matters, as was made clear in an answer to an open
letter by Aung San Suu Kyi, conceiving that the enhanced interaction was precisely a
way of avoiding interventionism. To support and monitor the internal processes in
Myanmar was perceived by ASEAN as the most effective course of action
(PARIBATRA, 1999; LIBRELOTTO, 2008). At the same time, relations with the People’s
Republic of China were deepened, influenced by Khin Nyunt, well known to be
favorable to the Chinese (STEINBERG, 2010). Since the opening of the borders
between both countries, commercial ties had grown, and the government of
Myanmar invested in a large scale modernization of its military with large
purchases from China. The Chinese government also invested in naval and aerial
infrastructure development in Myanmar, and installed radars on the Coco islands,
supposedly to monitor missile launch facilities and navigation in the Indian Ocean
(FAS, 1997).
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In the same year in which Myanmar joined ASEAN (1997), the official
government organization was changed from the SLORC to the State Peace and
Development Council (SPDC), presided by Than Shwe. In the year of 2000, Aung San
Suu Kyi was once again put under house arrest, precipitating the intercession of a
UN special envoy, Razali Ismail, who managed to warrant Suu Kyi’s release in 2002,
with a permission to campaign in the country’s countryside. These campaigns, in
which Suu Kyi called on the West to impose sanctions on the SPDC, caused a growing
tension in the country, culminating in the March 2003 Depayin incident, in which an
armed pro-government mob attacked a crowd of NLD supporters, resulting in
several deaths and the arrest of Aung San Suu Kyi. Afterwards, it has been concluded
that this incident had been premeditated, and it has also been speculated that one of
its targets may have been Suu Kyi (ALRC, 2004).
While the Chinese government maintained its pragmatic stance after the
Depayin incident, not altering its investments in Myanmar, the episode prompted
intense debate within ASEAN. This debate and the position defended by the Malay
Ex-Prime Minister, Mahathir Mohamed, that unless the SPDC released Suu Kyi,
Myanmar should be expelled from ASEAN, were effective in pressuring Than Shwe
and Khin Nyunt into releasing a program for a democratic transition, the “Seven
Step Roadmap to Democracy”, even if not having proposed dates for the steps in his
program. Following the program, in 2004 the Convention to elaborate the
Constitution was reconvened, being interrupted soon afterwards. In the same year,
Khin Nyunt, Prime Minister since 2003 and Chief of Military Intelligence, was
deposed, arrested, accused on the grounds of corruption, and condemned to 44
years of imprisonment. It is widely thought that his lack of support among the
troops, his control of intelligence and his cultivation of closer relations with China,
perceived as an undermining of autonomy by the nationalists led by Than Shwe,
caused his downfall (STEINBERG, 2010).
In 2005 Myanmar was counted among the “outposts of tyranny” in a
pronouncement by Condoleezza Rice, which was perceived in ASEAN as opposition
to Myanmar exercising its planned Presidency of the Association in 2006. In the
Vientiane Summit of Foreign Ministers, Myanmar announced that it would not be
occupying ASEAN’s presidency the following year, generating a positive response
from fellow associates. During the following year, Malaysia, then presiding ASEAN,
proposed measures to increase ASEAN’s leverage over Myanmar, which prompted
positive responses from the US Secretary of State Rice. On the other hand, all ASEAN
members opposed or abstained from voting on a draft resolution regarding human
rights in Myanmar at an U.N. General Assembly meeting in 2006, demonstrating that
a level of reluctance remained, in perceived intervention on internal matters
(UNGA, 2006).
On August 15, 2007, fuel prices were raised without previous warning, causing
price adjustments on other goods and services, such as food and public transport.
These adjustments resonated with deep seated resentment against chronic
economic ills, having immediate effects upon the poor and the monks, who were
dependent on donations. The great influence that the sangha—the monasteries—and
the Buddhist monks have over the society caused the violent reaction of the military
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to monks’ demonstrations in Pakokku to heighten indignation. As protests spread to
the capital Yangon1, they grew larger in size, incorporated other social segments,
especially students, and became increasingly political in character, from silent
marches at first, to flying the symbols of the NLD. These manifestations became
known as the Saffron Revolution—although noted by Steinberg (2010) for having
been neither Saffron nor a Revolution—in a reference to the colored revolutions
promoting regime change and democratic reform elsewhere in the world. The
government crackdown was swift, beating protesters, raiding and closing
monasteries, arresting supporters of the demonstrations, with a death toll estimated
between 31 and around 100 people.
The main importance of the Saffron Revolution was that, for the first time,
violent repression was visible, transmitted via television and the internet to homes
throughout the country, aggravated by being directed against the sangha. This may
have damaged the regime’s legitimacy irreparably, and it is likely that, due to the
intensely devout character of many in the junta’s leadership, this repression has
caused internal rifts (STEINBERG, 2010). The violence of the repression even caused
a hardened position from Singapore, at the time exercising the presidency of
ASEAN, insisting that moral pressure by its peers was the most effective way to
advance the cause of democracy. So dire became the situation that a truce was
negotiated to allow for direct talks between Than Shwe and Aung San Suu Kyi. Yet, it
must be noted that the ASEAN Charter, elaborated in 2007 reiterated the principles
of non-interference and sovereignty, being ratified by Myanmar in 2008 (NICKSH,
2007; LIBRELOTTO, 2008). The following year, in February 2008, the junta set the
referendum on the new Constitution to May 10, and elections to 2010.
However, on May 2, the country was struck by the Cyclone Nargis, causing the
worst natural disaster in Myanmar’s recorded history (FRITZ et al, 2009). Some
138,000 people are estimated to have died, with damages likely being around US$ 2.4
billion, approximately 27% of the nation’s GDP in 2007. This forced the government
to adapt the time of the referendum. Yet, they proved insistent on the maintenance
of the date, May 10, keeping the date throughout the country, and postponing the
election for two weeks, until May 24, in the areas affected by the cyclone. As the
government refused to allow foreign observers of any sort to the election, this had
the effect of preventing the access of any foreign aid worker to the afflicted areas
for over three weeks. Furthermore, the government failed to offer large scale relief
efforts, and sometimes even blocked the relief efforts organized by the very people
from unaffected areas, who mounted their own support teams, and were frequently
detained due to operating without government control. It must be noted that there
was a strong component of nationalism in the government reaction to the
international community at the time, claiming that Myanmar did not require
foreign aid. Also significant is the fears of the junta stemming from a near equation
of foreign intervention with a foreign invasion. From the perspective of the junta,
the US government has been actively promoting regime change in the country for
1
In 2007, the Tatmadaw inaugurated the new Burmese capital city: Naypyidaw. It is located “halfway
between Yangon and Mandalay, allegedly to mark the establishment of its dynasty, as past Burmese kings
have done […]” (KHANNA, 2008, p. 293).
224
around two decades, since the threat of intervention in 1988. Thus, it may have
seemed credible that a humanitarian crisis might be used as a pretext for an
invasion, despite the difficulties that starting a war would pose for the US at the
time. Despite these difficulties, the referendum proceeded, approving the proposed
Constitution by over 90% of the votes.
Among the most important measures included in the new Constitution by the
Tatmadaw is the reform of the administrative divisions of the country. This
established that the State is structured by local autonomy subsumed under the
central authority of the government. Three different divisions where established:
regions, states and the territory of the Union (MYANMAR, 2008). The territory of the
Union is under the direct control of the President, and the only such territory is the
capital, Naypyidaw. The regions, comparable to provinces, are seven administrative
divisions in which the Burman ethnic group constitutes a majority. The states,
numbering seven, are similar to regions, but having the other ethnic groups, which
are minorities at national level, constituting a local majority. Also noteworthy are
the five self-administered zones and the self administered division, which exist
within the states or regions, but are autonomous within these units. One of the
zones, Naga, is located in the Sagaing region, and all the remaining zones and the
single self-administered division, Wa, are located in the Shan state.
Over the course of 2009 and 2010, the ruling junta tried to bring several of the
ethnic militias and paramilitary groups under greater central control, turning them
into “Border Guard Forces”. However, many of the strongest groups refused the
proposition, fearful of the potential loss of autonomy, with clashes taking place in
parts of the country. At the same time, some groups and parties were wary of taking
part in the 2010 elections due to fears that their gains would be reduced, compared
to the 1990 elections. These fears were made more acute due both to articles in the
2008 Constitution specifying that 25% of chairs in both chambers of the Pyidaungsu
Hluttaw, the Parliament, would be reserved for members directly appointed by the
military; and by the frauds in the 2008 referendum, which made clear that the
government held far greater control over the result of the elections. The provisions
in the Constitution forbidding anyone that possessed a foreign citizenship or did not
have military experience from running for the presidency were seen as targeting
Aung San Suu Kyi, due to her holding a British citizenship and not having gone
through military service (STEINBERG, 2010). Ultimately, these measures, along with
the continuation of Aung San Suu Kyi’s house arrest caused the NLD to boycott the
elections.
On the other hand, several military leaders resigned from their military
positions in order to run as civilians in the elections. Foremost amongst these was
Thein Sein, the Prime Minister since 2007, who came to lead the Union Solidarity
and Development Party (USDP), the political arm of the Tatmadaw. On August 13, the
election was announced for November 7, drawing criticism for not giving enough
time for opposition parties to campaign properly. The election was canceled in parts
of almost all the states, especially those areas controlled by groups considered
hostile by the government. The outcome of the election confirmed the hold of the
USDP on the Pyidaungsu Hluttaw, holding over 50% of both chambers, and, with the
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25% reserved for military appointments, having a very solid majority of over 75% of
both chambers, ensuring the maintenance of the military leadership over the
political process.
In the aftermath of the election, Aung San Suu Kyi was released from her house
arrest and allowed to travel outside Yangon. In February 2011, the Presidential
Electoral College of the Parliament elected Thein Sein as President, being the first
civilian President of Myanmar in over 50 years. Thein Sein’s position as a moderate
has been perceived by the US, UN and some ASEAN members as an improvement,
although much criticism was directed at the electoral process itself, accused of
intense frauds, intimidation, and blocking important groups from participating.
Thein Sein has sought to enhance the government’s image, even having direct
meetings with Aung San Suu Kyi on August 19, 2011. At the same time, some of the
opposition parties that took part in the election demonstrated satisfaction for at
least having a legitimate legal platform upon which they can express their opinions
widely, even if with certain limits, and ASEAN and ARF have expressed support for
the continuation of the “Seven Step Roadmap to Democracy”. But the clashes
against paramilitary groups in the Shan State served as a reminder of the difficulties
on the road for the consolidation of the Union of Myanmar.
2.2. MYANMAR’S GEOPOLITICAL IMPORTANCE
Myanmar lies at the intersection between Sinic and Hindu cultures, and has long
been a powerful actor in local power dynamics. Its significant size, abundance of
natural resources and key strategic position allowed it to constitute a powerful state
before its colonization, quite capably expanding and incorporating territories of its
neighbors. In contemporary times Myanmar’s importance remains clear, and thus
the country is the focus of much political effort in the region, especially among
ASEAN member states.
Myanmar is one of the countries capable of exerting control over the Strait of
Malacca—one of the most important sea lanes in the world, through which one third
of the world’s traded goods pass, along one quarter of all oil carried by sea (ZUBIR,
2004), upon which several East Asian economies depend—. Furthermore, the Strait
connects U.S. bases on the Middle East and the Pacific, having global strategic
significance. It is also relevant that, due to the frailty of the Strait, China aims to
build an overland pipeline connecting Myanmar to its southern provinces, thus
becoming theoretically independent from the Malacca Strait. Such an endeavor has
received firm opposition from the Japanese government, which does not wish to see
its main regional rival becoming independent of the situation in the Strait of
Malacca while itself would remain limited by this factor.
Since Myanmar is located between India, China, and US ally Thailand, it also
needs to act cautiously in the international scene, in order to avoid being the stage
of a confrontation among great powers. Aggravating this problem are its significant
Indian and Chinese populations, which have traditionally held great economic
power, and significant influence in the country. Especially significant is Chinese
penetration in Myanmar, which has caused policy shifts from India, which has
increasingly supported Bangladesh in its border disputes with Myanmar.
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The country also possesses vast natural resources, such as one third of global
teak production2 (STEINBERG, 2010), along large mineral reserves and hydroelectric
potential, largely untapped. Also important is the economic potential of the
Burmese population as a consumer market, which has yielded significant profit to
Chinese commerce (LIBRELOTTO, 2008), even though international trade is rigidly
controlled by the government. These resources and markets, along Burmese
political support, are coveted by several neighbors, thus halting excessive criticism
towards the ruling junta in Myanmar (STEINBERG, 2010).
Myanmar has garnered increasing attention in recent years due to the
difficulties its population faces, and the humanitarian crises that often assail them.
The lack of economic development exacerbates the difficulty that the Myanma state
already has in effectively facing the humanitarian difficulties. That, along with the
government’s unwillingness to allow contact with the outside world, can cause
crises that reach cataclysmic proportions, most famously when, in 2008, the Nargis
hurricane hit the heart of agricultural production in Myanmar, the Irrawaddy Delta,
seriously threatening generalized famines, and the government stalled and blocked
humanitarian relief operations, and the delivery of aid supplies, drawing sharp
international criticism. Moreover, Myanmar’s economic and humanitarian troubles
also affect its neighbors, with large flows of refugees into neighboring countries,
often resulting in rising crime rates, increased rates of transmission of diseases and
economic and sexual exploitation of refugees in border areas.
Ultimately, as Librelotto (2008) argues, Myanmar’s international relevance is a
result from this country’s position within China’s global strategy. It was the closer
relations between Yangon and Beijing that caused ASEAN to accelerate Myanmar’s
entry into the Association, in order to counterbalance Chinese influence in the
country, and, thus, in the area as a whole. Moreover, Myanmar’s entry into ASEAN
prompted US sanctions against the country, to counter the perceived greater
integration into the international system and the legitimacy that ASEAN brought
the junta. These events gave Myanmar not only an objective importance, but a
symbolic importance, for China, the USA and for ASEAN too. For China, Myanmar
has become a central piece in its global strategy, even causing its intervention in the
UN Security Council, where China exercised its veto power for the first time since
1973 in a matter unrelated to Taiwan, so as to block a resolution concerning
Myanmar. For ASEAN, Myanmar is perceived as a neighbor to be protected, in order
to demonstrate both the autonomy and the capacity of the Association to encourage
a democratic transition process. Finally, for the USA Myanmar is a paradigm of
disrespect of human rights and democracy, where the humanitarian and democratic
discourse can be exercised consistently, without contradictions, at the same time
confronting China indirectly over its protection of the Myanmar.
2
Teak, Tectona grandis, is a species of tropical hardwood with several uses in furniture and culinary. It is
also very valued in the naval industry, due to the easy and low cost maintenance of teak decks.
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2.3. POLITICAL AND SECURITARIAN ISSUES
2.3.1. THE “SEVEN STEP ROADMAP FOR DEMOCRACY”, DEMOCRATIC TRANSITION AND POLITICAL
PARTIES
The government of Myanmar has followed the “Seven Step Roadmap for
Democracy”, as laid down by Khin Nyunt and Than Shwe in 2003, as the basis for its
democratic transition process. The steps are as follows: 1) Reconvening of the
National Convention that has been adjourned since 1996; 2) After the successful
holding of the National Convention, step by step implementation of the process
necessary for the emergence of a genuine and disciplined democratic system; 3)
Drafting of a new constitution in accordance with basic principles and detailed basic
principles laid down by the National Convention; 4) Adoption of the constitution
through national referendum; 5) Holding of free and fair elections for Pyithu Hluttaws
(Legislative bodies) according to the new constitution; 6) Convening of Hluttaws
attended by Hluttaw members in accordance with the new constitution; 7) Building a
modern, developed and democratic nation by the state leaders elected by the
Hluttaw; and the government and other central organs formed by the Hluttaw
(MYANMAR, 2004).
This program has received the endorsement of ASEAN member states several
times, being seen as the basis for a constructive reform process. However, as of 2011,
apparently the 7th step has been reached, and the country still faces problems with
its democratic structure, prompting the debate over whether the Roadmap remains
a valid program, or should be superseded, after having been implemented.
Problems that could be noted are the absence of the largest and most influent
opposition party in the country, the NLD, from the Pyidaungsu Hluttaw, having
boycotted the elections in order to demonstrate that it did not wish to lose its gains
of the 1990 election. The rigging of the elections in favor of the USPD and the 25% of
chairs reserved for the military have also drawn intense international criticism,
with U.S. President Barack Obama accusing the election of having been
“stolen”(OBAMA, 2010). And the problems with the incorporation of ethnic
minorities into the democratic process remain a fundamental obstacle to the
political evolution of the country: by forbidding certain ethnic parties of running in
the election, and canceling the elections in areas where junta power was weakest,
the states where the minorities’ paramilitary groups held greatest sway, the
Tatmadaw may have very well pushed these groups into a stronger commitment
with armed struggle, due to their exclusion from the legitimate political process.
On the other hand, from the military point of view, the Tatmadaw has a key place
in society, and it must remain an important player in the political process for as
long as it needs to, in order to avoid chaos and the disintegration of the State, the
aims that have permeated the discourse of the military since it first took power in
the country. The dominance of the military in both chambers of the Hluttaw serves
well the purposes of the Tatmadaw, in that it continues its central position over the
political system, allowing for the “discipline-flourishing democracy” that has been
its aim (STEINBERG, 2010). This position allows the military to control the
participation and the influence of opposition parties over the political system,
avoiding the perceived problems of the 1990 elections, which, if followed, would
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have led to the collapse of the military’s dominance over the political system, and
might, in the Armed Force’s perspective, have led to the disintegration of the State,
since the military contains the ethnic insurgencies. Still, Thein Sein’s direct meeting
with Aung San Suu Kyi indicates that the Tatmadaw is willing to grant a certain
degree of visibility, legitimacy, and perhaps even participation, to the NLD. And
regarding the inclusion of ethnic groups into the political system, from the
Tatmadaw’s point of view, they shall only be accepted and tolerated inasmuch as
they do not present a threat to the integrity of the State, and are consequently
willing to submit to central authority. Thus, blocking the registration of some ethnic
parties, canceling the elections in certain areas, clashing with paramilitary ethnic
groups, all are perceived as justified actions, in that they extend the central
authority to “insurgent” areas, ensuring the integrity of the State.
2.3.2. MINORITIES, MILITIAS, THE CEASEFIRE POLICY, AND REFUGEES
Myanmar has faced an often low level internal conflict ever since its
independence. The ethnic insurgencies on areas not controlled by the Burman
ethnic group have been the main cause of military insistence on its dominance over
the political system, due to the risk of disintegration of the State. After the
institution of the SLORC, the central government aimed at representing the whole of
the country, thereby changing its official name to Myanmar, a geographic
designation, instead of Burma, a reference to the Burman ethnic group. A similar
symbolic move in this direction may have been the changing of the capital city from
Yangon to the planned city of Naypyidaw, in the central area of the country, and on
the edge of Burman territory.
A more practical result of this policy was the ceasefire policy, engineered by
Khin Nyunt, but continued after his ousting. Essentially, this policy allowed the
ceasefire groups to effectively become local governments, as long as they did not
take up arms against the central government, did not cultivate poppy, and
recognized to be under the sovereignty of Myanmar. It must be noted, however, that
the ceasefires were never accepted by all groups. There are three degrees of
autonomy: De facto autonomous groups—the Wa are the most important of these, in
whose territory the Tatmadaw’s troops cannot go in without permission, and even
surrendering their weapons, and the Kokang used to be an important group, until it
was defeated in 2009 and accepted to run in the election—; groups under military
occupation, but with self government—the Rakhine state, and parts of the Kayah
and Karen states—; and the areas where there is a degree of coexistence—some
Kachin areas in the north, along with PaO, Mon and other Karen territories—.
A substantial change took place after the approval of the 2008 Constitution.
Several groups that had taken part in the 1990 elections were wary of taking part in
the 2010 elections, fearful of worse results on the ballots. Also, the government had
been pressuring militias into becoming “border guard forces”, seen as an attempt to
disarm and subjugate the ceasefire groups. Furthermore, some of the more powerful
groups were unsatisfied with the degree of autonomy that the Constitution granted
them, refusing to take part in the elections. This destabilized the ceasefire policy,
and some clashes begun taking place. Foremost among these was the Kokang
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incident, in August 2009, in which, over the course of four days, the Tatmadaw
defeated the Kokang group, prompting the flight of over 30,000 people across the
border into China, and leading the Kokang to accept participating in the election. In
2011, rebel groups in Kachin and Shan territories were also hit by Tatmadaw
campaigns, which seem to be attempting to bring restive areas under control.
However, the militias maintain contacts amongst themselves, preparing to ally
in case the Tatmadaw breaks the ceasefire policy against the larger groups. But the
greatest deterrent to greater military action is probably pressure from neighboring
countries, especially China. These clashes near border areas are extremely
detrimental to Chinese authorities, damaging Chinese infrastructure investments in
the area, and causing massive refugees’ influx into Chinese territory. Indeed, it has
been noted that the Chinese government rarely criticizes the positions of
Myanmar’s central government, but it does so energetically when violence causes
spillovers, such as refugee flows into China. This is one of the greatest pressures that
Myanmar faces for a peaceful solution of the matter of the ethnic militias.
2.3.3. TRANSNATIONAL CRIME
Myanmar is an important link in the crime network that extends throughout
Southeast Asia, China and India. The Golden Triangle, a key area in the global poppy
cultivation, is the border between Myanmar, Thailand and Lao P.D.R. In colonial
times, the British stimulated the production of opium for Chinese markets, and over
the course of the XX century, the country was one of the main producers of heroin,
mainly for western markets (STEINBERG, 2010). But other types of contraband exist
in the country, including other drugs, armaments, humans, and natural resources
such as woods, jewelry and wildlife (WYLER, 2010).
While it is largely incorrect that the central government of Myanmar profits
directly from illegal activities, it is evident that in the areas where contraband is
most common, corruption is rampant, and local military officers are often
conniving, if not directly involved. The main perpetrators, however, are the ethnic
groups and militias in peripheral areas, which use contraband as a source of profit
and weapons, to strengthen their position. This, in turn, makes it nearly impossible
for the government to eradicate transnational crime, due to the ceasefire policy
with some of the key groups involved in criminal practices. This and the fact that
the government often encourages drug lords to go over to legitimate activities,
retire, and fund development projects while being protected from prosecution, led
other countries to accuse Myanmar’s government of complicity and money
laundering.
On the other hand, the government, under Khin Nyunt’s leadership in the 1990s,
began a program to eradicate poppy production in the country. Even though in the
1980s the U.S. government aided the Burmese government in fighting opium
production, after the coup several U.S. congressmen adopted a harder stance,
opposing aid to the opium eradication program under the SPDC. However, Myanmar
managed to reduce poppy production in the country by almost 80%. Yet this
reduction may prove ephemeral if an alternative crop is not found for the farmers of
the poorer areas that engaged in poppy cultivation.
230
It must also be noted that even though opium production has decreased, the Wa
ethnic group has become one of the main methamphetamine producers in the area
(WYLER, 2010), selling most of its product to Thailand, from where it imports the
necessary chemicals for its operation. It is estimated that around 4% of the Thai
population use the drug, to the point where it has become a significant political
issue (JOHNSON, 2003). In 2003, Thailand initiated a severe crackdown on drug
dealers, resulting in some thousands of extrajudicial killings. Since the United Wa
Army group is the largest of groups in Myanmar, and the Tatmadaw is unwilling to
confront it, Thailand began arming a rebel group, the Shan State Army South, in
order to weaken the Wa (STEINBERG, 2010).
The member states of ASEAN have been consistently reluctant to censor
Myanmar strongly, in accordance with principles of non-interference. However,
some member states, particularly those that seek to maintain closer diplomatic ties
with the United States, have presented formulations allowing internal situations
that affect neighboring countries to be a cause of debate and participation within
ASEAN.
In this line, the ASEAN Regional Forum has been limited in its criticism of
Myanmar. It usually endorses the Burmese regime’s efforts to achieve a political
transition and a representative government, referring also to the importance of
economic reforms, national reconciliation, unity and reconsolidation, and urging
the release of political prisoners, as noted in the Chair’s Statement 18 th ARF (2011a,
p. 5). The report of the Senior Officials Meeting greeted the release of Aung San Suu
Kyi, as it urged the Parliament and the new Government to transition to democracy
and enact a process of national reconciliation which is indeed genuine (ARF, 2011b).
The ARF has also consistently urged the government of Myanmar to work closely
alongside the international community, particularly ASEAN and the UN. (ARF,
2011a)
4. BLOC POSITIONS
Canada, Australia and New Zealand are concerned about the recent adopted
restrictive electoral laws that fall short of international standards. They urge
Myanmar to do what is necessary for free elections, such as allowing freedom of
speech and releasing the political prisoners so they can initiate a democratic
opposition. They also defend that other ethnic groups need to have a representative
that will engage a dialogue aiming for the national conciliation, and that must be
made without any military resolution. Canada, such as European Union and United
States, has sanctions against Myanmar.
The strengthening of the United Nations remains a key element in the European
Union and the United States of America action toward Myanmar. The EU also focus
on the human rights situation in the country, maintaining their multi-track
approach towards this country: keeping restrictive measures, while providing
humanitarian aid, as defined by the Common Position of 2006 (EU, 2008). Both urge
231
that the rights of the ethnic minorities must be respected and the minorities ought
to have a democratic representativeness. They also demonstrate preoccupations
with the economic situation in Myanmar.
The United States of America believes that the political changes in Myanmar are
not enough for lifting the sanction as the ASEAN countries urge. The Obama
administration has just renewed the sanctions against Myanmar due “to actions
hostile to US interests”, as the president stated (MYANMAR, 2011), these actions
according to a US State Department spokesman would be the “large-scale repression
of the democratic opposition” (US, 2011). The US is worried about the possible
cooperation in nuclear technology that some evidences show to be happening
between Myanmar and the Democratic People’s Republic of Korea.
Japan expects that Myanmar will further promote its movements of releasing
political prisoners and promote the democratization process, then strengthen its
relationship with international community. Japan is supporting projects to deal with
the problem of the illegal drugs, has been helping the monitoring of illegal
cultivations in Myanmar and support for the formulation of a strategy for enforcing
drug control laws.
The Russian Federation bilateral relations with Myanmar are the strongest of the
isolated country. Russia is a part of the Joint Working Group on Counter Terrorism
and Transnational Crime, with Myanmar and other ASEAN countries, and supports
the government against the rebel groups who, the Russian argue, want the
disintegration of the country. Russia opposes the establishment of sanctions on
Myanmar and support a policy of dialogue. Russia agreed, in 2007, to build a
controversial nuclear research center in this country which will be monitored by
the UN nuclear agency. Pakistan has also helped in this endeavor, providing nuclear
scientist. Pakistan is known to have supplied Myanmar’s army with conventional
weapons and to the effort of training Myanmar’s army on its own territory.
Myanmar is a country of increasing importance for the People’s Republic of
China, both for energy security (China share hydroelectric plants in the border with
Myanmar) and sea access, insofar Myanmar sought foreign support. China has also
made intense investments in developing Myanmar’s infrastructure, such as port
facilities, hydroelectric plants, monitoring radars, roads and pipelines. Furthermore,
Myanmar is seen as a partner that could, through trade, further develop the Yunnan
province, whose development is below national average (KHANNA, 2008).
Nonetheless, the countries remain at odds over the increasing border tensions.
Beijing is concerned about the rising military operations in the borderland, on the
provinces of Kachin and Shan (which has Chinese minorities). These are aimed to
unify the various ethnic groups under Naypyidaw’s leadership, but threaten the
Chinese interests. Beijing is apprehensive because the fighting may cause a refugee
influx into their territory. The fighting could likewise reduce the trade between the
Kachin province and the Chinese province of Yunnan, what would affect a large
number of infrastructure projects in that region. Also passes through Myanmar’s
northern provinces the Sino-Myanmar oil and natural gas pipelines. These concerns
are related to the Chinese endeavor for having another access to Middle East,
avoiding the troublesome South China Sea and Malacca Strait.
232
Since the debacle of the Soviet Union, Mongolia has become increasingly closer
to the People’s Republic of China, which has become its biggest commercial partner.
Mongolia has also become mainly dependent on Chinese support for its closer
integration into Asian regional organizations. At the same time, the country has also
retained a close cooperation with the government of the Russian Federation.
Therefore, Mongolia tends to align with these countries in matters regarding
Myanmar.
India’s relations with Myanmar are motivated by the desire to counterbalance
China’s increasing influence in this country, as well as to increase its own. India’s
position towards Myanmar has helped to diminish their international isolation and
dependence on China. Both nations are cooperating against drug trafficking and
insurgent groups that work in the borderland between the countries. India stresses
that it does not intend on interfering in Myanma internal affairs.
Although having close links in religious, social and cultural matters, Bangladesh
has tensions in its relations with Myanmar. They have border quarrels and have not
defined the maritime zone frontier. Bangladesh also shelters a significant quantity
of Muslim refugees originally from Myanmar, the Rohingya. These are a source of
tension between both nations, as Myanmar refuses to grant the Rohingya
citizenship, not recognizing them as one of its several ethnic groups. This causes
them to flee in large numbers across the border into Bangladesh, which, in turn,
attempts to repatriate them, with UN aid.
Sri Lanka and Myanmar share cultural, religious and historical links, having
warm relations. The shared experience of combat against ethnic insurgencies
brought the two countries closer, with Myanmar having congratulated Sri Lanka on
the elimination of its rebel groups. At the same time, Sri Lanka has been supportive
of the current reforms in Myanmar, and both countries have strived to increase
commercial relations.
Relations between Myanmar and the Democratic People’s Republic of Korea are
marked by the attempt of assassination of the president of the Republic of Korea by
DPRK’s secret service, while he was visiting Myanmar. This situation led to a
political hindrance resulting in the breaking of the diplomatic relations between the
two countries from 1983 to 2007. Nowadays, both countries are cooperating in
military scope. In 2007, the US navy intercepted a North Korean cargo vessel en route
to Myanmar which supposedly was taking missiles manufacture technology. There
are evidences of nuclear technology cooperation between the countries as well. This
cooperation brings concerns to the Republic of Korea, which wishes to stop this
dynamic through economic help for Myanmar, while reiterating support for a
pacific transition to a democratic government.
ASEAN member states—Thailand, the Philippines, Singapore, Indonesia,
Malaysia, Lao People’s Democratic Republic, Cambodia, Vietnam and Brunei
Darussalam—have usually supported a democratic transition process in Myanmar, in
the molds of the “Seven Step Roadmap to Democracy”, and been reluctant to
criticize Myanmar in other international forums. Essentially, Myanmar has been a
troublesome neighbor at times, due to the criticism that it has often attracted, and
thus, attracting indirect criticism to ASEAN itself. However, supporting Myanmar
233
has been also a chance to demonstrate the pervasiveness of the non-intervention
principle in ASEAN, an opportunity to demonstrate the autonomy of the
Association, and a situation in which it demonstrates its capacity for accelerating
reforms through pressure. On more particular levels, governments more closely
allied with the United States have usually tended to be more critical of Myanmar,
and traditionally been among those that considered adaptations of the nonintervention principle. Thailand, Singapore and the Philippines have traditionally
adopted this stance. Myanmar has attempted to cultivate closer ties with Indonesia,
Malaysia, and occasionally, Vietnam, in order to consolidate its partnerships with
ASEAN, and avoiding isolation within the Association, alongside the Tatmadaw’s
stated admiration for the model of participation of the Indonesian army in this
country’s political process.
Timor-Leste has a delicate position regarding Myanmar. On one hand, the East
Timorese government has rather consistently supported resolutions criticizing
Myanmar’s poor human rights record. However, in recent times, this position has
grown more restrained by the country’s bid to become a member state of ASEAN,
which causes it to attempt to cultivate closer relations with all members of the
organization. Thus, reforms and a commitment to democracy are encouraged by
Timor-Leste without adopting a confrontational stance.
Papua New Guinea has cultivated cordial relations with its neighbors, usually
taking moderate stances. Also, Papua New Guinea is an observer member of ASEAN,
seeking to eventually become a full member. Accordingly, it tends to have a position
that does not alienate it from member states of ASEAN, as it avoids distancing itself
from other neighboring countries. Among these, a key partner is Australia, on whom
Papua New Guinea relies on for obtaining economic aid.
i.
Should the traditional ASEAN policy of non-intervention in internal matters
be maintained at all costs, or should it be applied selectively, in cases where
internal matters could be harmful to other countries, or even to the region as
a whole?
ii.
In an unstable country, should the process of building a democratic
government be hastened, even if this could destabilize the region, or should a
non-democratic government be supported for the sake of regional stability?
iii.
How best to conduce a democratic transition process with the goal of
creating a stable, viable and representative civilian government, in an
unstable environment, with military institutions not interfering in political
processes?
234
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ABOUT THE CONTRIBUTORS
Bruno Gomes Guimarães, Secretary-General of UFRGSMUN 2011, is a 5th year
student of International Relations at UFRGS. His main areas of interest are
international negotiations, theories of international relations, conflict
resolution and the United Nations itself. His first contact with MUNs was in
2007, when he tried to participate in UFRGSMUN, but due to his other major
back then (Movie-making at PUCRS) he was not able to. Consequently, he was
actually first involved in a model in 2008, when he represented Croatia at the
Security Council in UFRGSMUN. On that occasion, he became addicted to
modelling and since then has participated as a delegate in two WorldMUNs,
AMUNs and also NMUN Europe. Besides that he has also been a part of the
administrative staff. In 2009, he was the Director of Planning of UFRGSMUN and
last year he was the Director of the Board of the North Atlantic Council.
However, during the conference last year Mr. Guimarães was in Germany
making an exchange program, in which he had special classes about the UN,
further increasing and solidifying his interests about it.
Luíza Leão Soares Pereira, Under-Secretary-General for Academic Affairs of
UFRGSMUN and President of the International Court of Justice (ICJ), is a 4th year
student at UFRGS Law School. Since she first read the description of UFRGSMUN
in a pamphlet received on the day of registration after passing Vestibular, she
knew that was something great she had to be a part of. That was 2008, and it led
her into a hopeless addiction to modelling and to the study of International Law.
Along with her many years as an UFRGSMUN participant, she has been a Judge
at the AMUN ICJ and an Agent in the Philip C. Jessup International Law Moot
Court Competition, which also simulates the ICJ. As a true believer in modelling
as an instrument of learning, she’s thrilled to help in the creation of the
UFRGSMUN experience and in bringing this wonderful thing into people’s lives.
Athos Munhoz Moreira da Silva, Under-Secretary-General for Academic Affairs
and Director of the Special Political and Decolonization Committee (SPECPOL), is
an International Relations Undergraduate Student, currently in the 8th
Semester. He has been involved with MUNs since 2008, when he attended
UFRGSMUN’s preparation course. After this, he took part in modelling four
times. At UFRGSMUN, in 2008, he represented Croatia in SPECPOL and, in 2009,
Japan in CCPCJ. In 2010, he represented the Islamic Republic of Iran in the 13th
AMUN’s Security Council, alongside with Pedro Brites. This year, he represented
the People’s Republic of China at the 14th AMUN’s WTO. This is his second year
as part of the staff, after being Assistant Director of the UNSC at UFRGSMUN
2010. Academically, he focuses his studies on areas such as strategic studies,
regional integration, Asian and South American international relations. In spite
of considering himself a “realist”, he recognizes the importance of International
281
Organizations to the International System and the need of studying them in
order to achieve a better comprehension of International Relations.
Walter Lorenzo Zilio Motta de Souza is also Director of SPECPOL. He is an
Environmental Engineering student, very interested in issues concerning waste,
water, pollution and ecology. This is his 4th UFRGSMUN—his second time in the
academic staff, after twice in the administrative. As explored last year, the
linkage between politics and environment is always present in his UFRGSMUN
topics. Moreover, Mr. Souza participates actively in UFRGSMUN Back in School.
Laura Vicentin Lammerhirt, Assistant Director of SPECPOL, is a 3rd semester
International Relations undergraduate student at UFRGS. She was still at High
School when she first heard about UFRGSMUN and grew fond of the idea of
participating in it. In 2010 she decided to take the preparation course of
UFRGSMUN. In that same year she represented Brazil at the UNSC. Her
delegation won the award for UFRGSMUN’s Best Delegation of that year.
Julien Marcel Demeulenmeester, Director of SPECPOL is an International
Relations student currently in the 8th semester of the course at the Federal
University of Rio Grande do Sul. He has been involved with UN simulations since
the beginning of his major in 2008. Last semester he was in the People’s Republic
of China to study Mandarin, but fortunately came back this semester to
moderate SPECPOL’s debates at UFRGSMUN.
Luíza Gimenez Cerioli is in the 4th semester of International Relations at UFRGS.
At this UFRGSMUN, she is participating in SPECPOL as an Assistant Director.
With a great interest in diplomacy she has always had a fascination with the role
of the United Nations in international relations. She heard about MUN before
entering the university and was sure that it was something that she definitely
wanted to be a part of. Her first contact with those simulations was already in
her first semester at UFRGS, when she represented de delegate of Iran at AMUN
in 2010. In the same year, she was one of the representatives of Japan at the
Security Council of UFRGMUN. This is her first year being a member of the
UFRGSMUN staff and is doing her best for the success of this edition.
Cláudia Pfeifer Cruz, Director of the Human Rights Council, is a 4th year student
of International Relations at UFRGS. She was first involved in UFRGSMUN in
2008, when she participated as the delegate of France at the Social,
Humanitarian and Cultural Committee. Since then, she has become more
interested in the United Nations System and the importance of human rights as
a fundamental pillar of it. Last year, she was the Assistant Director of the UN
High Commissioner for Refugees, although she could not be present at the
conference, since she was making an exchange program in Germany. During her
studies abroad she took classes of International Humanitarian Law and UN
System which enhanced her interests and understanding of the United Nations.
282
Raoni Fonseca Duarte, Assistant Director of the Human Rights Council and also
UFRGSMUN’s Director of Public Relations, is a 7th semester student of
International Relations at UFRGS. His first experience in Models was in 2008 at
UFRGSMUN and it was enough to increase his interest in MUNs and to continue
modelling. Since then, he has participated in more six MUNs as a delegate—once
again in UFRGSMUN (2009), three times in AMUN (2009, 2010 and 2011), once in
NMUN Europe (2010) and in TEMAS 7 (2011). This is the second time that Mr.
Duarte is a member of UFRGSMUN’s staff—last year he was Assistant Director of
the Board of the North Atlantic Council. However, due to the fact he was
studying in Portugal, he could not be present during the conference.
Academically, Mr. Duarte has great interest in diplomacy, energy security,
international security and international politics.
Anaís Medeiro Passos is Director of the HRC and her major is in International
Relations at UFRGS, where she is in her 8th semester of study. She got in touch
with UFRGSMUN for the first time in 2008 and since 2009 has been a member of
the academic staff. In 2009 she was Assistant Director of the North Atlantic
Council and last year she was Director of the High Commissioner for Refugees.
Gabriela Souza Antunes is at her third year of Law School and is participating in
UFRGSMUN 2011 Assistant Director of the Human Rights Council. Her main
interests are Human Rights and International Humanitarian Law. Her first
participation in UFRGSMUN was in 2008 as a representative from Panama at
SPECPOL. Apart from UN Modelling, as a law student Gabriela has participated in
a simulation of the Inter-American Court of Human Rights, representing the
German university she was attending during her exchange program in that
country. After that she participated in UFRGSMUN 2010 at the Security Council.
This year, furthering her studies on the area of public international law and
human rights law, she participated in an International Law Winter Course,
offered by the International Law Center in Belo Horizonte.
Mariana Camargo Contessa is a 5th-year Law Student at UFRGS. She first
attended the UFRGMUN International Court of Justice in 2007 and found it so
interesting that she participated again in 2008. Moreover, she has been in touch
with international law since the beginning of college and continues to study and
research in this area until the present days. In 2009, she went to an exchange
program at Universidade do Porto—Portugal—, and unfortunately was not able
to attend UFRGSMUN. After coming back to Brazil last year, she joined the
UFRGMUN staff as Vice-President of our honorable Court and also participated
in Jessup International Law Moot Court Competition. This is, sadly, her last year
at Law School, which means that it is also her last UFRGSMUN (although she
sincerely hopes that next year someone will call her to do a pleading).
Mariana Bom is a 4th-year student at UFRGS Law School. Though it is the first
time she is a member of UFRGSMUN staff, she has taken part in the simulation
283
in 2009, as a delegate in the North Atlantic Council, and 2010, as a Judge of the
ICJ. She has also engaged previously in other extracurricular activities regarding
international law, such as the Philip C. Jessup Moot Court Competition.
Isadora Loreto da Silveira is a 5th semester International Relations
undergraduate student at UFRGS. This year she is the Director of the UNSC. Her
previous MUN experiences include participation as the delegate of Turkey in
CCPCJ at UFRGSMUN 2009 and as an Assistant Director of the UNSC in
UFRGSMUN 2010. She is currently participating in a university exchange
program in France and therefore is not going to be present during the
conference this year.
Alexandre Piffero Spohr is a 5th semester International Relations undergraduate
student at UFRGS. This year he is the Director of the UN Security Council,
tackling the situation in Libya and in Côte d’Ivoire. His first modelling
experience was at UFRGSMUN 2009 when he represented the Republic of
Bulgaria at the North Atlantic Council. Last year he was Assistant Director of
UFRGSMUN 2010’s United Nations Security Council. However, in 2011/2 he is
going to make an exchange program to study Political Science at the Eberhard
Karls University of Tübingen in Germany and, therefore, is not going to be
present during the conference.
Luiza Bulhões Olmedo, Assistant Director of the United Nations Security Council,
is currently a 5th semester student of International Relations at UFRGS. Her
major interest areas are international politics and conflict resolution. Even
before entering the University, she came to know about UFRGSMUN and
realized how enriching modelling could be. It was, for sure, a great incentive for
the choice of her undergraduate course. In her first year at the university,
therefore, in 2009, she participated in the Preparation Course about UN
modelling offered by the UFRGSMUN staff. In that same year she represented
Norway during the simulations. In 2010, she took part as Director of Planning,
supporting the administrative tasks of the event. She believes that participating
in MUNs is a fantastic learning experience and that helping for the execution of
UFRGSMUN is rewarding.
Josuá Gihad A. Soares is an Assistant Director of the UNSC in UFRGSMUN 2011.
Having completed four semesters of the International Relations undergraduate
major at UFRGS, he is currently studying Korean Language at Sogang University,
Seoul, South Korea. His first contact with modelling happened in 2009, when he
took part in the preparation course about modelling offered by the UFRGSMUN
staff. He has participated in the simulation in 2009 and 2010, having received the
Best Delegate award at the UFRGSMUN Security Council in the latter year for his
participation as one of the representatives for the People’s Republic of China.
Giulia R. Barão, Assistant Director of UFRGSMUN 2011, is an International
Relations Undergraduate student, currently in the 5th semester. She first heard
284
about UFRGSMUN in 2008, when she decided to take the UFRGSMUN’s
preparation course about UN modelling. The classes about rules and procedures
were a great addition to her previous knowledge about the UN System.
Nevertheless, the practical learning achieved through participating in
UFRGSMUN 2008 and TEMAS 7 (2011) were for her the most enriching
experiences, which enhanced her interest and hope—as a student and future
professional—about the role played by the United Nations within the
international relations.
Iara Binta Lima Machado, Director of the World Bank, is a 6th semester student of
International Relations at UFRGS. She has enhanced her interest on the UN
System through participation in AMUN 2008 and UFRGSMUN 2008 as a delegate.
In UFRGSMUN’s 2009 edition, she worked as Assistant Director of the Board of
the North Atlantic Council and last year she assisted the UNHCR during the five
days of the event. Other than the UN System, she is interested in human rights
as a whole, a subject which includes all correlated areas in international
relations. Even though Africa is her main study topic, she has dedicated
attention to development in Asia as well.
Isadora da Silveira Steffens is a 4th semester student of International Relations at
UFRGS. This year, she will be an Assistant Director of the World Bank. Her first
contacts with MUNs and the World Bank was last year, when she participated as
Japan’s representative at WB during UFRGSMUN 2010.
Giovani Bastiani Roggia is a 6th semester student of International Relations at
UFRGS. He has been participating in Models UN since 2008, when he enrolled at
the university. He recently made an academic exchange program to Sweden,
where he developed his interests for international issues. This year he is
Assistant Director of the World Bank.
Brunna Bozzi Feijó studies History at the Federal University of Rio Grande do
Sul. This is her first year in UFRGSMUN’s staff, but she has been very interested
in the UN System since she entered her graduate studies. Hence, Bruna joined
the UFRGSMUN staff to be part of an amazing and enriching experience.
Bruno Magno, Director, is a 6th semester student of International Relations at
UFRGS. He is mainly interested in East Asian politics and security, especially on
Japanese contemporary politics and history, and Strategic Studies. He first took
part in a MUN in 2008, when he represented Croatia in the United Nations
Security Council, in UFRGSMUN. That marked his interest in MUNs, and, in the
following year, he again took part in the UNSC, as Japan, receiving a Best
Delegation commendation. He has represented the Democratic People’s
Republic of Korean and the People’s Republic of China in AMUN 2010 and 2011,
respectively. And in UFRGSMUN 2010 he was an assistant director in the North
Atlantic Council. This year he shall have the privilege of directing the ASEAN
Regional Forum.
285
Rômulo Barizon Pitt, Assistant Director of the ASEAN Regional Forum, is an 8th
semester student of International Relations at UFRGS. His main areas of interest
are regional institutions and international relations of the Asia-Pacific. His first
experience with MUNs was in 2010, when he represented North Korea at the
Security Council in AMUN. Later that same year, he participated as the Chinese
Head Delegate in UFRGSMUN, also at the Security Council.
Pedro Vinícius Pereira Brites is a 7th semester student of International Relations
at UFRGS. He participated in the last two editions of UFRGSMUN: in 2009 as a
delegate from Libya at the Security Council and in 2010 as a member of academic
staff of the Security Council. In addition to that, he participated in the 13th
AMUN as the representative of Iran at the UNSC. Among his interests are
strategic studies, regional integration and East Asian studies.
Marcelo Kanter, Director, is a 6th semester student of International Relations at
UFRGS. He is mainly interested in regional integration processes, East Asian
politics, African politics, and Strategic Studies and the impact of technology on
warfare. He first took part in a MUN in 2009, when he represented Somalia in
the United Nations Conference on Sovereignty and Self-Determination, in
AMUN. That occasion solidified his interest in modeling, leading him to take
part in UFRGSMUN 2009 representing Norway in the North Atlantic Council. He
took such interest in this committee that he took part in UFRGSMUN 2010 as an
assistant director in the North Atlantic Council, and this year has the privilege
of being one of the directors of the ASEAN Regional Forum.
Bruno Kern Duarte, Assistant Director of the ASEAN Regional Forum, is a 4th
semester student of International Relations at UFRGS. His main areas of interest
are intelligence studies, international security and theories of international
relations. He has participated in two MUNs: UFRGSMUN and AMUN, both in
2010. This semester he will be involved in the staff of ARF.
286
ACKNOWLEDGMENTS
Countless nights without sleeping, many corrections and reviews, let alone
mugs of coffee and tea: Indeed, making this book coming to reality was no easy
task. As the chief coordinator, I must say that without the help of many people
the study guides of UFRGSMUN 2011 probably would not be existent.
Needless to say, the work prepared by the entire academic staff—contributors of
this book—was priceless. The work of Giovani Roggia, who became a specialist in
the history of energy supply in Asia within weeks, ought to be recognized. The
timely fashion in which the writers of the UNSC guide handed it to us was also
remarkable. However, I would like to thank in special the tremendous efforts of
Iara Binta, who gave us, the coordinators of this book, invaluable assistance in
formatting and writing many perfect pages in an incredible rush, besides talking
to us in the middle of the night for cheering us and sharing our joys as every
chapter got complete.
Moreover, I would also like to thank Sílvia Sebben who, besides being a great
friend, was of great assistance to us, commenting on the chapters and correcting
English grammar whenever we were unable to.
Similarly, the hard work made by Pedro Brites and Vanessa Muller was also
inestimable. Both handled with technical and administrative affairs of how this
book would be printed and were great on what they did. Pedro, without whom
this book would definitely not have come to existence, must also be specially
thanked for reviewing and helping to complement the guide of the ASEAN
Regional Forum on the Korean Peninsula.
In addition to them, I thank also Prof. Dr. Claudia Lima Marques, UFRGSMUN’s
faculty coordinator, for making the whole event possible. Her assistance to
UFRGSMUN has been incalculable since 2003, not least in 2011. Ades Sanchez
also ought to be thanked for her help with the red tape in our university and
deep knowledge of the “UFRGS system”.
Concerning UFRGS, I shall never forget the incredible openness of the PróReitoria de Pesquisa of UFRGS (PROPESQ), which financed the printing of this
book. I owe many thanks to Bruno Cassel for his frankness and constant
cheerfulness, that made the process a lot easier than one would expect.
Last but not least, I thank the publisher of this book, the South American
Institute for Politics and Strategy (ISAPE). Indeed, the role of ISAPE in making
this book possible was one of greatest importance. I would like to particularly
thank Lucas Kerr and Igor Castellano, General Director and Administrative
Director of ISAPE respectively, whose help and availability were immeasurable.
Bruno Gomes Guimarães
Secretary-General UFRGSMUN 2011
287

Understanding beyond solutions

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