Testing the effectiveness of international norms: UN humanitarian assistance and sexual apartheid in Afghanistan

Human Rights Quarterly

Volumn 23, Issue 3, 2001, Pages 733-768

  Verdirame, Guglielmo ^b  

^a MERTON COLLEGE   (United Kingdom)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

HUMANITARIAN AID; INTERNATIONAL LAW; UNITED NATIONS; WOMENS STATUS;

AFGHANISTAN;

EID: 0034858190     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2001.0043     Document Type: Article

References (209)

1. Anne-Marie Slaughter & Steven R. Ratner, The Method is the Message, 93 AM. J. INT'L L. 410, 417 (1999).
2. Kenneth W. Abbott, International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AM. J. INT'L L. 361 (1999). Different methods do not exclude each other and questions can often be approached effectively by resorting to a combination of methods.
3. Pieter van Dijk, Normative Force and Effectiveness of International Norms, 30 GER. Y. B. INT'L L. 9, 32 (1987).
4. Abbott, supra note 2, at 363.
5. For an approach within international relations to similar problems, see Jeffrey W. Legro, Which Norms Matter? Revisiting the "Failure" of Internationalism, 51 INT'L ORG. 31 (1997).
6. Sexual apartheid has been defined as: the oppression of individuals, and their exclusion from equal enjoyment of human rights, on the ground that they are women. Sexual apartheid can be more subtle than racial apartheid because the forms of oppression are woven into the fabric of society. The agents of modern sexual apartheid consider the subordinate and domestically oriented role and status of women part of the natural order, and assume women's servitude as a condition of society itself. Rebecca Cook, The Elimination of Sexual Apartheid: Prospects for the Fourth World Conference on Women, Issue Paper on World Conferences No. 5, American Society of International Law, at 3 (1995). Paraphrasing the definition of racial apartheid contained in art. 7(2)(h) of the Rome Statute of the International Criminal Court, sexual apartheid could also be defined as "a regime of systematic oppression and domination" over women. Rome Statute of the International Criminal Court, 17 July 1998, U.N. Doc. A/ CONF.183/9 (1998), reprinted in 37 I.L.M. 999 (1998).
7. Nancy H. Dupree, Afghan Women Under the Taliban, in FUNDAMENTALISM REBORN? AFGHANISTAN AND THE TALIBAN 145 (William Maley ed., 1998). On the Taliban see also, PETER MARSDEN, THE TALIBAN: WAR, RELIGION AND THE NEW ORDER IN AFGHANISTAN (1998), Barnett R. Rubin, Women and Pipelines: Afghanistan's Proxy Wars, 73 INT'L AFF. 283 (1997).
8. Nancy H. Dupree, Afghan Women Under the Taliban, in FUNDAMENTALISM REBORN? AFGHANISTAN AND THE TALIBAN 145 (William Maley ed., 1998). On the Taliban see also, PETER MARSDEN, THE TALIBAN: WAR, RELIGION AND THE NEW ORDER IN AFGHANISTAN (1998), Barnett R. Rubin, Women and Pipelines: Afghanistan's Proxy Wars, 73 INT'L AFF. 283 (1997).
9. Nancy H. Dupree, Afghan Women Under the Taliban, in FUNDAMENTALISM REBORN? AFGHANISTAN AND THE TALIBAN 145 (William Maley ed., 1998). On the Taliban see also, PETER MARSDEN, THE TALIBAN: WAR, RELIGION AND THE NEW ORDER IN AFGHANISTAN (1998), Barnett R. Rubin, Women and Pipelines: Afghanistan's Proxy Wars, 73 INT'L AFF. 283 (1997).
10. Diana Cammack, Gender Relief and Politics During the Afghan War, in ENGENDERING FORCED MIGRATION 94, 95 (Doreen Indra ed., 1999).
11. Dupree, supra note 7, at 1.
12. Id. at 20.
13. See, e.g., LIISA H. MALKKI, PURITY AND EXILE (1995).
14. World Food Programme, Strategic Framework for the UN in Afghanistan of 12 Sept. 1998, available at 〈http://www.wfp.org/OP/Countries/afganistan/strat_framework.html〉 (visited 27 March 2001).
15. Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. Reports 226, at 592 (dissenting opinion of Judge Higgins) (8 July).
16. Following pressure and even intimidation from the Taliban authorities, Afghani women hired as local staff members by the UN were often dismissed. See Dupree, supra note 7, at 148.
17. Gramsci developed the concepts of hegemony and hegemonic apparatus to explain the domination and direction exerted by one social group over the other. In addition to coercion, which is often represented by the law, hegemony also encompasses social discourses and practices, as well as consent-building activities that can ensure the maintenance of a given social order. This non-coercive element of hegemony is more difficult to dismantle. See ANTONIO GRAMSCI, QUADERNI DAL CARCERE 40-41, 1222-24, 1235-37, 1249-50, 1603, 2010-11 (Valentino Gerratana ed., 2d ed. 1975). An English translation of the Notebooks is, ANTONIO GRAMSCI, PRISON NOTEBOOKS, VOLS. 1 AND 2 (Joseph A. Buttigieg ed., 1992 & 1995).
18. Gramsci developed the concepts of hegemony and hegemonic apparatus to explain the domination and direction exerted by one social group over the other. In addition to coercion, which is often represented by the law, hegemony also encompasses social discourses and practices, as well as consent-building activities that can ensure the maintenance of a given social order. This non-coercive element of hegemony is more difficult to dismantle. See ANTONIO GRAMSCI, QUADERNI DAL CARCERE 40-41, 1222-24, 1235-37, 1249-50, 1603, 2010-11 (Valentino Gerratana ed., 2d ed. 1975). An English translation of the Notebooks is, ANTONIO GRAMSCI, PRISON NOTEBOOKS, VOLS. 1 AND 2 (Joseph A. Buttigieg ed., 1992 & 1995).
19. The term "soft law" refers to non-binding or non-formal ways of international law-making. The very notion of soft law gives rise to controversy particular because it challenges "the binary (positivist) division between law and non-law." Christine Chinkin, Normative Development in the International Legal System, in COMMITMENT AND COMPLIANCE 21, at 23-24 (Dinah Shelton ed., 2000). With the expression, "softer than soft law," I indicate that array of reports, guidelines, and office memoranda produced within international institutions which would not even possess the minimum requirements to qualify as "soft law," but can still determine the behavior of the institution. The definition of jus cogens is uncontroversial . The term refers to peremptory norm of international law, i.e., norms that are accepted by the totality or near totality of states, and from which no derogation is permitted. Which specific norms are part of jus cogen, howerver, is contentious.
20. Justice Read adopted the even more radical view that action can be "the only covincing evidence of State practice" in Fisheries (UK v. Nor.), 1951 I.C.J. 116, 191 (18 Dec.) (dissenting opinion of Justice Read).
21. Under the heading "International Economic and Social Co-operation," Chapter IX identifies a set of objectives that the UN is to promote (Article 55); foresees the possibility of a UN action in these matters (Article 56); defines a role for the specialized agencies in these processes (Articles 57-59); and asserts that "responsibility for the discharge of these functions will be vested in the General Assembly" and, under the authority of the Assembly, in the Economic and Social Council (Article 60). Arts. 100 and 101 of the Charter regulate the position of the UN staff, granting their independence from states and stressing the importance of the "efficiency, competence, and integrity" of international civil servants (see also Article 8 UN Charter). U.N. CHARTER, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153 (entered into force 24 Oct. 1945).
22. Johan Kaufmann has recognized the importance of the institutional practice in the operational programs of the United Nations: There is one common characteristic to all operational activities: while general policy guidance can emanate from the supervisory policy bodies, the screening of projects to be assisted . . . is very much in the hands of the staffs of the organizations. Such screening can simply not be done by intergovernmental bodies. JOHAN KAUFMANN, UNITED NATIONS DECISION-MAKING 78-79 (1980).
23. ROSALYN HIGGINS, THE DEVELOPMENT Of INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS (1963).
24. C.M. Chinkin, The Challenge of Soft Law: Development and Change in International Law, 38 INT'L & COMP. L. Q. 850, 856-59 (1989).
25. Except obviously for those operational programs, including humanitarian programs, that have been established by a resolution of the Security Council.
26. See, e.g., the recent arbitration between Eritrea and Yemen, in which Yemen claimed that a study of the Red Sea region carried out by the World Bank and the United Nations Development Programme (UNDP) constituted "recognition of Yemeni title by these international agencies, as well as expert evidence to the same effect," and "evidence of Ethiopian acquiescence" to the Yemeni title. The Eritrea-Yemen Arbitration (Phase One: Territorial Sovereignty and Scope of the Dispute), 114 I.L.R. 1 (1999), at ¶¶ 59-60.
27. U.N. Charter, supra note 18, at art. 2, ¶ 4, and Declaration on Principles of International Law Concerning Friendly Relations Among States in accordance with the Charter of the United Nations, adopted 24 Oct. 1970, G.A. Res. 2625 (XXV, U.N. GAOR, 47th Sess., reprinted in UN-GENERAL ASSEMBLY RESOLUTIONS: A SELECTION OF THE MOST IMPORTANT RESOLUTIONS DURING THE PERIOD 1949-1974 (SESSION I-XXVIII) (checked and compiled by Krakau et al., 1975).
28. In the Francophone legal literature, the key distinction is between "intervention humanitaire" and "intervention d'humanité." The former is the provision of humanitarian assistance accompanied by the eventual deployment of some security forces solely for the purpose of protecting the safety of humanitarian personnel and guaranteeing access to the victims. An "intervention d'humanité" is, on the other hand, characterized by a use of force on a significantly larger scale in favor of one party in the conflict, or of the civilian victims. See Emmanuel Spiry, Interventions Humanitaires et Interventions d'Humanité: La Pratique Française face au Droit International, 102 REV. GEN. DR. INT'L PUB. 407 (1998); Mario Bettati, Un Droit d'Ingerence?, 95 REV. GEN. DR. INT'L PUB. 639 (1991).
29. In the Francophone legal literature, the key distinction is between "intervention humanitaire" and "intervention d'humanité." The former is the provision of humanitarian assistance accompanied by the eventual deployment of some security forces solely for the purpose of protecting the safety of humanitarian personnel and guaranteeing access to the victims. An "intervention d'humanité" is, on the other hand, characterized by a use of force on a significantly larger scale in favor of one party in the conflict, or of the civilian victims. See Emmanuel Spiry, Interventions Humanitaires et Interventions d'Humanité: La Pratique Française face au Droit International, 102 REV. GEN. DR. INT'L PUB. 407 (1998); Mario Bettati, Un Droit d'Ingerence?, 95 REV. GEN. DR. INT'L PUB. 639 (1991).
30. Christopher Greenwood, Is There a Right of Humanitarian Intervention?, 49(2) THE WORLD TODAY 34 (Feb. 1993).
31. Id. Istvan Pogany identifies three fundamental characteristics of humanitarian intervention: the occurrence of gross violations of human rights in a certain country, the use of armed force by a third party, the lack of consent or acquiescence on the part of the State on whose territory the intervention takes place. See Istvan Pogany, Humanitarian Intervention in International Law: The French Intervention in Syria Re-Examined, 35 INT'L & COMP. L. Q. 182, 186 (1986). On humanitarian interventions, see also: Thomas M. Franck & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (Richard B. Lillich ed., 1973); PETER MALANCZUK, HUMANITARIAN INTERVENTION AND THE LEGITIMACY OF THE USE OF FORCE (1993); SEAN D. MURPHY, HUMANITARIAN INTERVENTIONS: THE UN IN AN EVOLVING WORLD ORDER (1996); Adam Roberts, Intervention and Human Rights, 69 INT'L AFF. 429 (1993);
32. Id. Istvan Pogany identifies three fundamental characteristics of humanitarian intervention: the occurrence of gross violations of human rights in a certain country, the use of armed force by a third party, the lack of consent or acquiescence on the part of the State on whose territory the intervention takes place. See Istvan Pogany, Humanitarian Intervention in International Law: The French Intervention in Syria Re-Examined, 35 INT'L & COMP. L. Q. 182, 186 (1986). On humanitarian interventions, see also: Thomas M. Franck & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (Richard B. Lillich ed., 1973); PETER MALANCZUK, HUMANITARIAN INTERVENTION AND THE LEGITIMACY OF THE USE OF FORCE (1993); SEAN D. MURPHY, HUMANITARIAN INTERVENTIONS: THE UN IN AN EVOLVING WORLD ORDER (1996); Adam Roberts, Intervention and Human Rights, 69 INT'L AFF. 429 (1993);
33. Id. Istvan Pogany identifies three fundamental characteristics of humanitarian intervention: the occurrence of gross violations of human rights in a certain country, the use of armed force by a third party, the lack of consent or acquiescence on the part of the State on whose territory the intervention takes place. See Istvan Pogany, Humanitarian Intervention in International Law: The French Intervention in Syria Re-Examined, 35 INT'L & COMP. L. Q. 182, 186 (1986). On humanitarian interventions, see also: Thomas M. Franck & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (Richard B. Lillich ed., 1973); PETER MALANCZUK, HUMANITARIAN INTERVENTION AND THE LEGITIMACY OF THE USE OF FORCE (1993); SEAN D. MURPHY, HUMANITARIAN INTERVENTIONS: THE UN IN AN EVOLVING WORLD ORDER (1996); Adam Roberts, Intervention and Human Rights, 69 INT'L AFF. 429 (1993);
34. Id. Istvan Pogany identifies three fundamental characteristics of humanitarian intervention: the occurrence of gross violations of human rights in a certain country, the use of armed force by a third party, the lack of consent or acquiescence on the part of the State on whose territory the intervention takes place. See Istvan Pogany, Humanitarian Intervention in International Law: The French Intervention in Syria Re-Examined, 35 INT'L & COMP. L. Q. 182, 186 (1986). On humanitarian interventions, see also: Thomas M. Franck & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (Richard B. Lillich ed., 1973); PETER MALANCZUK, HUMANITARIAN INTERVENTION AND THE LEGITIMACY OF THE USE OF FORCE (1993); SEAN D. MURPHY, HUMANITARIAN INTERVENTIONS: THE UN IN AN EVOLVING WORLD ORDER (1996); Adam Roberts, Intervention and Human Rights, 69 INT'L AFF. 429 (1993);
35. Id. Istvan Pogany identifies three fundamental characteristics of humanitarian intervention: the occurrence of gross violations of human rights in a certain country, the use of armed force by a third party, the lack of consent or acquiescence on the part of the State on whose territory the intervention takes place. See Istvan Pogany, Humanitarian Intervention in International Law: The French Intervention in Syria Re-Examined, 35 INT'L & COMP. L. Q. 182, 186 (1986). On humanitarian interventions, see also: Thomas M. Franck & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (Richard B. Lillich ed., 1973); PETER MALANCZUK, HUMANITARIAN INTERVENTION AND THE LEGITIMACY OF THE USE OF FORCE (1993); SEAN D. MURPHY, HUMANITARIAN INTERVENTIONS: THE UN IN AN EVOLVING WORLD ORDER (1996); Adam Roberts, Intervention and Human Rights, 69 INT'L AFF. 429 (1993);
36. Id. Istvan Pogany identifies three fundamental characteristics of humanitarian intervention: the occurrence of gross violations of human rights in a certain country, the use of armed force by a third party, the lack of consent or acquiescence on the part of the State on whose territory the intervention takes place. See Istvan Pogany, Humanitarian Intervention in International Law: The French Intervention in Syria Re-Examined, 35 INT'L & COMP. L. Q. 182, 186 (1986). On humanitarian interventions, see also: Thomas M. Franck & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AM. J. INT'L L. 275 (1973); HUMANITARIAN INTERVENTION AND THE UNITED NATIONS (Richard B. Lillich ed., 1973); PETER MALANCZUK, HUMANITARIAN INTERVENTION AND THE LEGITIMACY OF THE USE OF FORCE (1993); SEAN D. MURPHY, HUMANITARIAN INTERVENTIONS: THE UN IN AN EVOLVING WORLD ORDER (1996); Adam Roberts, Intervention and Human Rights, 69 INT'L AFF. 429 (1993);
37. FERNANDO R. TESÓN, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (1988).
38. The trend toward militarization of aid, especially of relief in conflict situations, appears to be endorsed by some in the UN humanitarian bureaucracy (see e.g., Antonio Donini, Asserting Humanitarianism in Peace-Maintenance, 4 GLOBAL GOVERNANCE 81 (1998)). The practice of the UN is beginning to reflect this. See, e.g., S.C. Res. 1208 (1998) on the situation in refugee camps in Africa, in which the Security Council supported the idea of making military and police units and "related equipment" available to UN bodies and organizations for the maintenance of security in refugee camps "in coordination as appropriate with the African States hosting refugees." S.C. Res. 1208, U.N. SCOR, 3945th meeting, ¶11, U.N. Doc. S/RES/1208 (1998).
39. For instance the principle of non-intervention, see Dietrich Schindler, Humanitarian Assistance, Humanitarian Interference and International Law, in Essays in Honour of Wang Tieya 689, 701 (Ronald St. J. Macdonald ed., 1994). See also Marie-José Domestici-Met, Aspects Juridiques Récents de l'Assistance Humanitaire, 35 ANNUAIRE FRANCAIS DE DROIT INT'L 117 (1989).
40. For instance the principle of non-intervention, see Dietrich Schindler, Humanitarian Assistance, Humanitarian Interference and International Law, in Essays in Honour of Wang Tieya 689, 701 (Ronald St. J. Macdonald ed., 1994). See also Marie-José Domestici-Met, Aspects Juridiques Récents de l'Assistance Humanitaire, 35 ANNUAIRE FRANCAIS DE DROIT INT'L 117 (1989).
41. See Draft Articles on State Responsibility, Report of the International Law Commission, U.N. GAOR, 35th Sess., Supp. No. 10, art. 8(a), U.N. Doc. A/35/10 (1980) [hereinafter ILC Draft Articles]. In addition to the copious case law concerning state responsibility for acts of insurgents and rioters, there are also other cases in which states have been held responsible for acts of private persons, e.g. The Zafiro (Gr. Brit. v. U.S.), 3 I.L.R. 221 (British-American Tribunal 1925); the Van der Mussele Case, 73 I.L.R. 459 (1983), in which the European Court of Human Rights held that entrusting the Ordres des avocats (i.e., the Belgian Bar Association) with making provisions for legal assistance to indigent persons "cannot relieve the Belgian State of the responsibilities it would have incurred under the Convention had it chosen to operate the system itself." Id. at 470.
42. See Draft Articles on State Responsibility, Report of the International Law Commission, U.N. GAOR, 35th Sess., Supp. No. 10, art. 8(a), U.N. Doc. A/35/10 (1980) [hereinafter ILC Draft Articles]. In addition to the copious case law concerning state responsibility for acts of insurgents and rioters, there are also other cases in which states have been held responsible for acts of private persons, e.g. The Zafiro (Gr. Brit. v. U.S.), 3 I.L.R. 221 (British-American Tribunal 1925); the Van der Mussele Case, 73 I.L.R. 459 (1983), in which the European Court of Human Rights held that entrusting the Ordres des avocats (i.e., the Belgian Bar Association) with making provisions for legal assistance to indigent persons "cannot relieve the Belgian State of the responsibilities it would have incurred under the Convention had it chosen to operate the system itself." Id. at 470.
43. See Draft Articles on State Responsibility, Report of the International Law Commission, U.N. GAOR, 35th Sess., Supp. No. 10, art. 8(a), U.N. Doc. A/35/10 (1980) [hereinafter ILC Draft Articles]. In addition to the copious case law concerning state responsibility for acts of insurgents and rioters, there are also other cases in which states have been held responsible for acts of private persons, e.g. The Zafiro (Gr. Brit. v. U.S.), 3 I.L.R. 221 (British-American Tribunal 1925); the Van der Mussele Case, 73 I.L.R. 459 (1983), in which the European Court of Human Rights held that entrusting the Ordres des avocats (i.e., the Belgian Bar Association) with making provisions for legal assistance to indigent persons "cannot relieve the Belgian State of the responsibilities it would have incurred under the Convention had it chosen to operate the system itself." Id. at 470.
44. See Draft Articles on State Responsibility, Report of the International Law Commission, U.N. GAOR, 35th Sess., Supp. No. 10, art. 8(a), U.N. Doc. A/35/10 (1980) [hereinafter ILC Draft Articles]. In addition to the copious case law concerning state responsibility for acts of insurgents and rioters, there are also other cases in which states have been held responsible for acts of private persons, e.g. The Zafiro (Gr. Brit. v. U.S.), 3 I.L.R. 221 (British-American Tribunal 1925); the Van der Mussele Case, 73 I.L.R. 459 (1983), in which the European Court of Human Rights held that entrusting the Ordres des avocats (i.e., the Belgian Bar Association) with making provisions for legal assistance to indigent persons "cannot relieve the Belgian State of the responsibilities it would have incurred under the Convention had it chosen to operate the system itself." Id. at 470.
45. It is interesting that even the Draft Convention on Expediting the Delivery of Emergency Relief (1984), drafted by the UN Disaster Relief Co-ordinator, does not contain such a definition. Draft Convention on Expediting the Delivery of Emergency Relief (1984) in ASSISTING THE VICTIMS OF ARMED CONFLICT AND OTHER DISASTERS 248 (Frits Kalshoven ed., 1989). There is also "no international text that provides a general definition of aid." NGUYEN QUOC DINH, PATRICK DAILLIER & ALAIN PELLET, DROIT INTERNATIONAL PUBLIC 1020 (6th ed., 1999).
46. It is interesting that even the Draft Convention on Expediting the Delivery of Emergency Relief (1984), drafted by the UN Disaster Relief Co-ordinator, does not contain such a definition. Draft Convention on Expediting the Delivery of Emergency Relief (1984) in ASSISTING THE VICTIMS OF ARMED CONFLICT AND OTHER DISASTERS 248 (Frits Kalshoven ed., 1989). There is also "no international text that provides a general definition of aid." NGUYEN QUOC DINH, PATRICK DAILLIER & ALAIN PELLET, DROIT INTERNATIONAL PUBLIC 1020 (6th ed., 1999).
47. For example, the Geneva Convention (1) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug. 1949, art. 24, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 Aug. 1949, 75 U.N.T.S. 85, art. 9; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 Aug. 1949, arts. 25-28, 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilians in Time of War, arts. 23, 55, 108, 75 U.N.T.S. 287; Protocol I Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of International Armed Conflict, opened for signature 12 Dec. 1977, art. 69 (1), 1125 U.N.T.S. 3; Protocol II Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of Non-International Armed Conflict, opened for signature 12 Dec. 1977, art. 18 (2), 1125 U.N.T.S. 609.
48. For example, the Geneva Convention (1) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug. 1949, art. 24, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 Aug. 1949, 75 U.N.T.S. 85, art. 9; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 Aug. 1949, arts. 25-28, 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilians in Time of War, arts. 23, 55, 108, 75 U.N.T.S. 287; Protocol I Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of International Armed Conflict, opened for signature 12 Dec. 1977, art. 69 (1), 1125 U.N.T.S. 3; Protocol II Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of Non-International Armed Conflict, opened for signature 12 Dec. 1977, art. 18 (2), 1125 U.N.T.S. 609.
49. For example, the Geneva Convention (1) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug. 1949, art. 24, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 Aug. 1949, 75 U.N.T.S. 85, art. 9; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 Aug. 1949, arts. 25-28, 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilians in Time of War, arts. 23, 55, 108, 75 U.N.T.S. 287; Protocol I Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of International Armed Conflict, opened for signature 12 Dec. 1977, art. 69 (1), 1125 U.N.T.S. 3; Protocol II Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of Non-International Armed Conflict, opened for signature 12 Dec. 1977, art. 18 (2), 1125 U.N.T.S. 609.
50. For example, the Geneva Convention (1) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug. 1949, art. 24, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 Aug. 1949, 75 U.N.T.S. 85, art. 9; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 Aug. 1949, arts. 25-28, 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilians in Time of War, arts. 23, 55, 108, 75 U.N.T.S. 287; Protocol I Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of International Armed Conflict, opened for signature 12 Dec. 1977, art. 69 (1), 1125 U.N.T.S. 3; Protocol II Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of Non-International Armed Conflict, opened for signature 12 Dec. 1977, art. 18 (2), 1125 U.N.T.S. 609.
51. For example, the Geneva Convention (1) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug. 1949, art. 24, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 Aug. 1949, 75 U.N.T.S. 85, art. 9; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 Aug. 1949, arts. 25-28, 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilians in Time of War, arts. 23, 55, 108, 75 U.N.T.S. 287; Protocol I Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of International Armed Conflict, opened for signature 12 Dec. 1977, art. 69 (1), 1125 U.N.T.S. 3; Protocol II Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of Non-International Armed Conflict, opened for signature 12 Dec. 1977, art. 18 (2), 1125 U.N.T.S. 609.
52. For example, the Geneva Convention (1) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug. 1949, art. 24, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 Aug. 1949, 75 U.N.T.S. 85, art. 9; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 Aug. 1949, arts. 25-28, 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilians in Time of War, arts. 23, 55, 108, 75 U.N.T.S. 287; Protocol I Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of International Armed Conflict, opened for signature 12 Dec. 1977, art. 69 (1), 1125 U.N.T.S. 3; Protocol II Additional to the Geneva Conventions of August 12, 1949, Relating to the Protection of Victims of Non-International Armed Conflict, opened for signature 12 Dec. 1977, art. 18 (2), 1125 U.N.T.S. 609.
53. To a lesser extent, international environmental law may at times also be relevant.
54. See Geneva Conventions, supra note 32.
55. Convention Relating to the Status of Refugees, 28 Jul. 1951, art. 1, 189 U.N.T.S. 150, and Protocol to the Convention Relating to the Status of Refugees, 31 Jan. 1967, 606 U.N.T.S. 267 [the 1951 Convention as modified by the Protocol will be hereinafter referred to as the 1951 Refugee Convention]. Organization of African Unity: Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 Sept. 1969, art. 1 (2), 1001 U.N.T.S. 45 [hereinafter OAU Refugee Convention].
56. Convention Relating to the Status of Refugees, 28 Jul. 1951, art. 1, 189 U.N.T.S. 150, and Protocol to the Convention Relating to the Status of Refugees, 31 Jan. 1967, 606 U.N.T.S. 267 [the 1951 Convention as modified by the Protocol will be hereinafter referred to as the 1951 Refugee Convention]. Organization of African Unity: Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 Sept. 1969, art. 1 (2), 1001 U.N.T.S. 45 [hereinafter OAU Refugee Convention].
57. Convention Relating to the Status of Refugees, 28 Jul. 1951, art. 1, 189 U.N.T.S. 150, and Protocol to the Convention Relating to the Status of Refugees, 31 Jan. 1967, 606 U.N.T.S. 267 [the 1951 Convention as modified by the Protocol will be hereinafter referred to as the 1951 Refugee Convention]. Organization of African Unity: Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 Sept. 1969, art. 1 (2), 1001 U.N.T.S. 45 [hereinafter OAU Refugee Convention].
58. CLAUDENA SKRAN, REFUGEES IN INTER-WAR EUROPE (1995); B.E. HARRELL-BOND, IMPOSING AID (1986); Barbara Harrell-Bond, The Experience of Refugees as Recipients of Aid, in REFUGEES: PERSPECTIVES ON THE EXPERIENCE OF FORCED MIGRATION 136 (Alastair Ager ed., 1998).
59. CLAUDENA SKRAN, REFUGEES IN INTER-WAR EUROPE (1995); B.E. HARRELL-BOND, IMPOSING AID (1986); Barbara Harrell-Bond, The Experience of Refugees as Recipients of Aid, in REFUGEES: PERSPECTIVES ON THE EXPERIENCE OF FORCED MIGRATION 136 (Alastair Ager ed., 1998).
60. CLAUDENA SKRAN, REFUGEES IN INTER-WAR EUROPE (1995); B.E. HARRELL-BOND, IMPOSING AID (1986); Barbara Harrell-Bond, The Experience of Refugees as Recipients of Aid, in REFUGEES: PERSPECTIVES ON THE EXPERIENCE OF FORCED MIGRATION 136 (Alastair Ager ed., 1998).
61. See UNHCR, THE STATE OF THE WORLD'S REFUGEES: FIFTY YEARS OF HUMANITARIAN ACTION 307 (2000).
62. See Refugee Convention, supra note 34.
63. GUY S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 264-68 (2d ed. 1996). Interestingly, the provision of material assistance to IDPs is often carried out by the same institutions responsible for assisting refugees, and UNHCR has an IDP program in some countries.
64. In some cases this founding instrument is a General Assembly resolution (for instance, the General Assembly's Consolidation of the Special Fund and the Expanded Programme of Technical Assistance in a United Nations Development Programme, G.A. Res. 2029 (XX), 22 Nov. 1965, reprinted in UN-GENERAL ASSEMBLY RESOLUTIONS, supra note 24. Other UN agencies are treaty-based (ILO, WHO, UNESCO, FAO, IMF and the World Bank). The relationship between these specialized agencies and the UN is regulated by agreements that are approved by the General Assembly under Articles 57 and 63 of the Charter. UNHCR was established by a resolution of the General Assembly, but also features in the 1951 Refugee Convention, supra note 35, art. 35.
65. In some cases this founding instrument is a General Assembly resolution (for instance, the General Assembly's Consolidation of the Special Fund and the Expanded Programme of Technical Assistance in a United Nations Development Programme, G.A. Res. 2029 (XX), 22 Nov. 1965, reprinted in UN-GENERAL ASSEMBLY RESOLUTIONS, supra note 24. Other UN agencies are treaty-based (ILO, WHO, UNESCO, FAO, IMF and the World Bank). The relationship between these specialized agencies and the UN is regulated by agreements that are approved by the General Assembly under Articles 57 and 63 of the Charter. UNHCR was established by a resolution of the General Assembly, but also features in the 1951 Refugee Convention, supra note 35, art. 35.
66. For instance on the evolution of the UNHCR mandate, see GOODWIN-GILL, supra note 38, at 8-18.
67. The doctrine of "implied powers" was first applied to the UN by the International Court of Justice in the Reparation case - Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, 182-84 (11 Apr.). This doctrine is also susceptible of application to other international organizations. Indeed, the Permanent Court of International Justice had already referred to the "implied powers" of the International Labour Organization (see Advisory Opinion No. 13, Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employers, 1926 P.C.I.J, (ser. B) No. 13, at 18). Justice Shahubudeen has examined the implied powers of the Court of International Justice itself in the selection of judges to sit in an ad hoc chamber. Land and Maritime Border Dispute (Hond. v. El Sal.), 1990 I.C.J. 3, 41-42 (28 Feb.) (dissenting opinion of Shahubudeen, J.). Finally, when the WHO requested an advisory opinion from the court on the legality of nuclear weapons, its "implied" powers were considered, but the majority of the judges opted for a rather restrictive view and concluded that "to ascribe to the WHO the competence to address the legality of the use of nuclear weapons . . . would be tantamount to disregarding the principle of speciality." Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 66, 79 (8 July) [hereinafter Nuclear Weapons-WHO].
68. The doctrine of "implied powers" was first applied to the UN by the International Court of Justice in the Reparation case - Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, 182-84 (11 Apr.). This doctrine is also susceptible of application to other international organizations. Indeed, the Permanent Court of International Justice had already referred to the "implied powers" of the International Labour Organization (see Advisory Opinion No. 13, Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employers, 1926 P.C.I.J, (ser. B) No. 13, at 18). Justice Shahubudeen has examined the implied powers of the Court of International Justice itself in the selection of judges to sit in an ad hoc chamber. Land and Maritime Border Dispute (Hond. v. El Sal.), 1990 I.C.J. 3, 41-42 (28 Feb.) (dissenting opinion of Shahubudeen, J.). Finally, when the WHO requested an advisory opinion from the court on the legality of nuclear weapons, its "implied" powers were considered, but the majority of the judges opted for a rather restrictive view and concluded that "to ascribe to the WHO the competence to address the legality of the use of nuclear weapons . . . would be tantamount to disregarding the principle of speciality." Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 66, 79 (8 July) [hereinafter Nuclear Weapons-WHO].
69. The doctrine of "implied powers" was first applied to the UN by the International Court of Justice in the Reparation case - Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, 182-84 (11 Apr.). This doctrine is also susceptible of application to other international organizations. Indeed, the Permanent Court of International Justice had already referred to the "implied powers" of the International Labour Organization (see Advisory Opinion No. 13, Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employers, 1926 P.C.I.J, (ser. B) No. 13, at 18). Justice Shahubudeen has examined the implied powers of the Court of International Justice itself in the selection of judges to sit in an ad hoc chamber. Land and Maritime Border Dispute (Hond. v. El Sal.), 1990 I.C.J. 3, 41-42 (28 Feb.) (dissenting opinion of Shahubudeen, J.). Finally, when the WHO requested an advisory opinion from the court on the legality of nuclear weapons, its "implied" powers were considered, but the majority of the judges opted for a rather restrictive view and concluded that "to ascribe to the WHO the competence to address the legality of the use of nuclear weapons . . . would be tantamount to disregarding the principle of speciality." Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 66, 79 (8 July) [hereinafter Nuclear Weapons-WHO].
70. The doctrine of "implied powers" was first applied to the UN by the International Court of Justice in the Reparation case - Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, 182-84 (11 Apr.). This doctrine is also susceptible of application to other international organizations. Indeed, the Permanent Court of International Justice had already referred to the "implied powers" of the International Labour Organization (see Advisory Opinion No. 13, Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employers, 1926 P.C.I.J, (ser. B) No. 13, at 18). Justice Shahubudeen has examined the implied powers of the Court of International Justice itself in the selection of judges to sit in an ad hoc chamber. Land and Maritime Border Dispute (Hond. v. El Sal.), 1990 I.C.J. 3, 41-42 (28 Feb.) (dissenting opinion of Shahubudeen, J.). Finally, when the WHO requested an advisory opinion from the court on the legality of nuclear weapons, its "implied" powers were considered, but the majority of the judges opted for a rather restrictive view and concluded that "to ascribe to the WHO the competence to address the legality of the use of nuclear weapons . . . would be tantamount to disregarding the principle of speciality." Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 66, 79 (8 July) [hereinafter Nuclear Weapons-WHO].
71. Nuclear Weapons - WHO, supra note 13, at 172-224 (dissenting opinion of Koroma, J.). Justice Koroma amply referred to the practice of the WHO in the aftermath of the Chernobyl accident to argue that its powers and functions had grown. Id. at 199.
72. G.A. Res. 46/182, adopted 19 Dec. 1991, U.N. GAOR, 78th plen. mtg., U.N. Doc. A/ RES/46/182 (1991); G.A. Res. 43/131, adopted 8 Dec. 1988, U.N. GAOR, 75th plen. mtg U.N. Doc. A/RES/43/131 (1988); G.A. Res. 45/100, adopted 14 Dec. 1990, U.N. GAOR 68th plen. mtg., U.N. Doc. A/RES/45/100 (1990); G.A. Res. 51/194, adopted 17 Dec. 1996, U.N. GAOR, 87th plen. mtg., U.N. Doc. A/RES/51/194 (1996). See also the Agreed Conclusions 1998/1 in the Report of the Economic and Social Council for the Year 1998, Ch. VII "Humanitarian Affairs Segment," U.N. Doc. A/53/3.
73. Schindler, supra note 29, at 690.
74. See Military and Paramilitary Activities in and against Nicaragua (Nicar. v. US), 1986 I.C.J. 14, 125 (27 June) [hereinafter Nicaragua].
75. Id.
76. SIR ROBERT JENNINGS & SIR ARTHUR WATTS, OPPENHEIM'S INTERNATIONAL LAW 444 (9th ed. 1992).
77. In particular the right to life (International Covenant on Civil and Political Rights, 16 Dec. 1966, art. 6, 999 U.N.T.S. 171 [hereinafter ICCPR]) and the right to the enjoyment of the highest attainable standard of physical and mental health (International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, art. 12, 999 U.N.T.S. 3 [hereinafter ICESCR]). The Human Rights Committee has affirmed that the right to life may also encompass a social dimension involving positive obligations for states, for instance the adoption of "all possible measures to reduce infant mortality and to increase life expectancy" (General Comment 14 on art. 6, ICCPR). However, even the Convention on the Rights of the Child has opted for a soft formulation on the entitlement of a refugee child to humanitarian assistance. See Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (1989) (entered into force 2 Sept. 1990), reprinted in 28 I.L.M. 1448 (1989) (hereinafter CRS); Domestici-Met, supra note 29, at 122-23; René Jean Dupuy, L'assistance humanitaire comme droit de l'homme contre la souveraineté de l'Etat, in Kalshoven, supra note 3.
78. In particular the right to life (International Covenant on Civil and Political Rights, 16 Dec. 1966, art. 6, 999 U.N.T.S. 171 [hereinafter ICCPR]) and the right to the enjoyment of the highest attainable standard of physical and mental health (International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, art. 12, 999 U.N.T.S. 3 [hereinafter ICESCR]). The Human Rights Committee has affirmed that the right to life may also encompass a social dimension involving positive obligations for states, for instance the adoption of "all possible measures to reduce infant mortality and to increase life expectancy" (General Comment 14 on art. 6, ICCPR). However, even the Convention on the Rights of the Child has opted for a soft formulation on the entitlement of a refugee child to humanitarian assistance. See Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (1989) (entered into force 2 Sept. 1990), reprinted in 28 I.L.M. 1448 (1989) (hereinafter CRS); Domestici-Met, supra note 29, at 122-23; René Jean Dupuy, L'assistance humanitaire comme droit de l'homme contre la souveraineté de l'Etat, in Kalshoven, supra note 3.
79. In particular the right to life (International Covenant on Civil and Political Rights, 16 Dec. 1966, art. 6, 999 U.N.T.S. 171 [hereinafter ICCPR]) and the right to the enjoyment of the highest attainable standard of physical and mental health (International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, art. 12, 999 U.N.T.S. 3 [hereinafter ICESCR]). The Human Rights Committee has affirmed that the right to life may also encompass a social dimension involving positive obligations for states, for instance the adoption of "all possible measures to reduce infant mortality and to increase life expectancy" (General Comment 14 on art. 6, ICCPR). However, even the Convention on the Rights of the Child has opted for a soft formulation on the entitlement of a refugee child to humanitarian assistance. See Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (1989) (entered into force 2 Sept. 1990), reprinted in 28 I.L.M. 1448 (1989) (hereinafter CRS); Domestici-Met, supra note 29, at 122-23; René Jean Dupuy, L'assistance humanitaire comme droit de l'homme contre la souveraineté de l'Etat, in Kalshoven, supra note 3.
80. In particular the right to life (International Covenant on Civil and Political Rights, 16 Dec. 1966, art. 6, 999 U.N.T.S. 171 [hereinafter ICCPR]) and the right to the enjoyment of the highest attainable standard of physical and mental health (International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, art. 12, 999 U.N.T.S. 3 [hereinafter ICESCR]). The Human Rights Committee has affirmed that the right to life may also encompass a social dimension involving positive obligations for states, for instance the adoption of "all possible measures to reduce infant mortality and to increase life expectancy" (General Comment 14 on art. 6, ICCPR). However, even the Convention on the Rights of the Child has opted for a soft formulation on the entitlement of a refugee child to humanitarian assistance. See Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (1989) (entered into force 2 Sept. 1990), reprinted in 28 I.L.M. 1448 (1989) (hereinafter CRS); Domestici-Met, supra note 29, at 122-23; René Jean Dupuy, L'assistance humanitaire comme droit de l'homme contre la souveraineté de l'Etat, in Kalshoven, supra note 3.
81. In particular the right to life (International Covenant on Civil and Political Rights, 16 Dec. 1966, art. 6, 999 U.N.T.S. 171 [hereinafter ICCPR]) and the right to the enjoyment of the highest attainable standard of physical and mental health (International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, art. 12, 999 U.N.T.S. 3 [hereinafter ICESCR]). The Human Rights Committee has affirmed that the right to life may also encompass a social dimension involving positive obligations for states, for instance the adoption of "all possible measures to reduce infant mortality and to increase life expectancy" (General Comment 14 on art. 6, ICCPR). However, even the Convention on the Rights of the Child has opted for a soft formulation on the entitlement of a refugee child to humanitarian assistance. See Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (1989) (entered into force 2 Sept. 1990), reprinted in 28 I.L.M. 1448 (1989) (hereinafter CRS); Domestici-Met, supra note 29, at 122-23; René Jean Dupuy, L'assistance humanitaire comme droit de l'homme contre la souveraineté de l'Etat, in Kalshoven, supra note 3.
82. In particular the right to life (International Covenant on Civil and Political Rights, 16 Dec. 1966, art. 6, 999 U.N.T.S. 171 [hereinafter ICCPR]) and the right to the enjoyment of the highest attainable standard of physical and mental health (International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, art. 12, 999 U.N.T.S. 3 [hereinafter ICESCR]). The Human Rights Committee has affirmed that the right to life may also encompass a social dimension involving positive obligations for states, for instance the adoption of "all possible measures to reduce infant mortality and to increase life expectancy" (General Comment 14 on art. 6, ICCPR). However, even the Convention on the Rights of the Child has opted for a soft formulation on the entitlement of a refugee child to humanitarian assistance. See Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (1989) (entered into force 2 Sept. 1990), reprinted in 28 I.L.M. 1448 (1989) (hereinafter CRS); Domestici-Met, supra note 29, at 122-23; René Jean Dupuy, L'assistance humanitaire comme droit de l'homme contre la souveraineté de l'Etat, in Kalshoven, supra note 3.
83. Corfu Channel Case (U.K. v. Albania), 1949 I.C.J. 4, 22 (9 Apr.). The Court held that Albania's obligation to notify other states of the existence of a minefield in its territorial sea was based inter alia on "elementary considerations of humanity." The Martens Clause contains a similar reference to "principles of humanity and dictates of public conscience" (Protocol I, supra note 32, art. 1 (2)).
84. See Domestici-Met, supra note 29, at 122.
85. See Greenwood, supra note 26; Antonio Cassese, Ex Iniuria Ius Oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 EUR. J. INT'L L. 23 (1999).
86. See Greenwood, supra note 26; Antonio Cassese, Ex Iniuria Ius Oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 EUR. J. INT'L L. 23 (1999).
87. B.G. Ramcharan, The Security Council and Humanitarian Emergencies, 9 NETH. QUART. OF HUM. RTS. 19 (1991). In 1999, see S.C. Res. 1233 on the situation in Guinea-Bissau, (U.N. SCOR, 3991st mtg., 6 Apr. 1999, U.N. Doc. S/RES/1233 (1999)) and S.C. Res. 1234 on the situation concerning the Democratic Republic of Congo (U.N. SCOR, 3993rd mtg., 9 Apr. 1999, U.N. Doc. S/RES/1234 (1999)).
88. Under Chapter VII of the Charter, the Security Council, having determined that "a threat to the peace, breach of the peace or act of aggression" has occurred, can make recommendations or adopt measures, including those involving the use of armed force.
89. S.C. Res. 1199. U.N. SCOR, 3930th mtg., 23 Sept. 1998, U.N. Doc. S/RES/1199 (1998).
90. S.C. Res. 687, U.N. SCOR, 2981st mtg., 3 Apr. 1991, U.N. Doc. S/RES/687 (1991) on Iraq, and both S.C. Res. 1199 (1998), supra note 51, and S.C. Res. 1244, U.N. SCOR, 4011th mtg., 10 June 1999, U.N. Doc. S/RES/1 244 (1999) on the situation in Kosovo. International humanitarian law instruments already assign an important role to the ICRC and other "impartial humanitarian organizations" (e.g. Art. 3 common to the four Geneva Conventions, supra note 32 [hereinafter Common Article 3]).
91. S.C. Res. 794, U.N. SCOR, 3145th mtg., 3 Dec. 1992, U.N. Doc. S/RES/794 (1992) where the Council determined that the "magnitude of the human tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarian assistance, constitutes a threat to international peace and security."
92. This may have been the reason for the failure to conclude an agreement in the case of the UNDP assistance to IDPs in Kenya. See HUMAN RIGHTS WATCH, FAILING THE INTERNALLY DISPLACED: THE UNDP DISPLACED PERSONS PROGRAM IN KENYA 89-90 & 149 (1997).
93. In this respect, the practice developed by UNICEF's Operation Lifeline Sudan for the delivery of assistance to the civil war-ridden southern parts of the country is noteworthy. It rests on tripartite agreements concluded between the Government, the international organization (UNICEF) and representatives of the insurgents - in the case of Sudan, the Sudan People's Liberation Army. Exporting this model to other situations may not be so easy due to the probable reluctance of governments to enter into such agreements.
94. Geneva Convention (III), supra note 32.
95. The OAU Refugee Convention (supra note 33) has tried to resolve some of the problems relating to the determination of refugee status by providing for the recognition en masse of groups of refugees (arts. 1, 2).
96. In Nicaragua, the International Court of Justice held that Common Art. 3 reflects customary law. See supra note 45, at 113-14.
97. S.C. Res. 1076, U.N. SCOR, 3706th mtg., 22 Oct. 1996, U.N. Doc. S/RES/1076 (1976).
98. BENEDETTO CONFORTI, LE NAZIONI UNITE 185 (1994).
99. N.D. WHITE, KEEPING THE PEACE 36-42 (1997). Unlike Conforti, White treats the Security Council's request for a cease-fire in the case of Armenia's invasion of Azerbaijan as taken under Chapter VI and as having only recommendatory value. Id. at 42. In the past, the Council did act under Chapter VII without explicitly stating so, notably in the case of Rhodesia, see Philip Alston, The Security Council and Human Rights: Lessons To Be Learned from the Iraq-Kuwait Crisis and its Aftermath, 13 AUSTRAL. Y. B. OF INT'L L. 107, 146 (1992).
100. N.D. WHITE, KEEPING THE PEACE 36-42 (1997). Unlike Conforti, White treats the Security Council's request for a cease-fire in the case of Armenia's invasion of Azerbaijan as taken under Chapter VI and as having only recommendatory value. Id. at 42. In the past, the Council did act under Chapter VII without explicitly stating so, notably in the case of Rhodesia, see Philip Alston, The Security Council and Human Rights: Lessons To Be Learned from the Iraq-Kuwait Crisis and its Aftermath, 13 AUSTRAL. Y. B. OF INT'L L. 107, 146 (1992).
101. N.D. WHITE, KEEPING THE PEACE 36-42 (1997). Unlike Conforti, White treats the Security Council's request for a cease-fire in the case of Armenia's invasion of Azerbaijan as taken under Chapter VI and as having only recommendatory value. Id. at 42. In the past, the Council did act under Chapter VII without explicitly stating so, notably in the case of Rhodesia, see Philip Alston, The Security Council and Human Rights: Lessons To Be Learned from the Iraq-Kuwait Crisis and its Aftermath, 13 AUSTRAL. Y. B. OF INT'L L. 107, 146 (1992).
102. See S.C. Res. 1193, U.N. SCOR, 3921st mtg., 28 Aug. 1998, U.N. Doc. S/RES/1193 (1998) and S.C. Res. 1214, U.N. SCOR, 8 Dec. 1998, U.N. Doc. S/RES/1214 both of which were adopted unanimously.
103. In paragraph 11 of Resolution 1076, the Security Council "denounces the discrimination against girls and women and other violations of human rights and international humanitarian law in Afghanistan, and notes with deep concern possible repercussions on international relief and reconstruction programs in Afghanistan." S.C. Res. 1076, U.N. SCOR, 3706th mtg., 22 Oct. 1996, U.N. Doc. S/RES/1076 (1996).
104. S.C. Res. 1193, supra note 65.
105. S.C. Res. 1214, supra note 65.
106. Voting information on Security Council resolution is available from the U.N. website under Official Records at 〈http://www.un.org/Depts/dhl/resguide/scvote.htm〉.
107. S.C. Res. 1267, U.N. SCOR, 4051st mtg., 15 Oct. 1999, U.N. Doc.
108. See G.A. Res 51/108, U.N. GAOR, 82nd plen. mtg., 12 Dec. 1996, U.N. Doc. A/RES/ 51/108 (1996); 51/195, U.N. GAOR, 87th plen. mtg., 17 Dec. 1996, U.N. Doc. A/RES/ 51/195 (1996); 52/145, 12 Dec. 1997; 52/211, adopted without a vote, 19 Dec. 1997; 53/165, U.N. GAOR 85th plen. mtg., 9 Dec. 1998, U.N. Doc. A/RES/53/165 (1999).
109. G.A. Res. 52/145, U.N. GAOR, 12 Dec. 1997.
110. Id. at ¶ 6.
111. The non-derogable nature of this principle in time of public emergency has been recognized by state parties to the ICCPR. Art. 4 forbids the adoption of emergency measures that "involve discrimination solely on the ground of race, colour, sex, language, religion or social origin." On the jus cogens nature of non-discrimination, see Hilary Charlesworth & Christine Chinkin, The Gender of Jus Cogens, 15 HUM. RTS. Q. 63, 67-70 (1993).
112. See, e.g., art. 3 of the Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1 Mar. 1979, 1249 U.N.T.S. 14 [hereinafter CEDAW].
113. S.C. Res. 418, U.N. SCOR, 2046th mtg., 4 Nov. 1977, U.N. Doc. S/RES/418 (1977).
114. THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 231 (1995). The Existence of this historical connection cannot alone explain the practice of the Security Council. Religious persecution has been at least as much a generator of wars as racial discrimination, whereas in Afghanistan it has been the status and rights of women that provided a battleground, catalyzing factions with completely opposite views of society.
115. Alston, supra note 64, at 116. S.C. Res. 688, U.N. SCOR, 2982nd mtg., 5 Apr. 1991, condemned "the repression of the Iraqi civilian population in many parts of Iraq" (Id. ¶ 1) and demanded its end "as a contribution to removing the threat to international peace and security in the region." (Id. ¶ 2).
116. White, supra note 64, at 59.
117. At the beginning of 1997 a financial crisis triggered off serious disorder in Albania. The central government lost control of parts of the country and various armed groups emerged. Mainly due to the influx of thousands of Albanian asylum-seekers in neighboring countries, especially in Italy, the establishment of a multi-national force for Albania was proposed.
118. Internal disorder and systematic repression have characterized the situation in Kosovo since the end of the 1980s. But later, as a result of the establishment of the Kosovo Liberation Army (KLA) and the consolidation of its military presence, the situation developed into an internal armed conflict, defined at Art. 1 of Protocol II, supra note 32. The Security Council mentioned the occurrence of violations of international humanitarian law in respect of Kosovo only in September 1998. S.C. Res. 1199, supra note 54.
119. S/1997/258, reprinted in 52 COMUNITÁ INTERNAZIONALE 6, at 8 (1997).
120. S.C. Res. 1101, U.N. SCOR, 3758th mtg., 28 Mar. 1997, U.N. Doc. S/RES/1101 (1997).
121. Id.
122. S.C. Res. 1160, U.N. SCOR, 3868th mtg., 31 Mar. 1998, U.N. Doc. S/RES/1160 (1997). (Also recalled in S.C. Res. 1199, supra note 54; S.C. Res. 1203, U.N. SCOR, 3937th mtg., 24 Oct. 1998, U.N. Doc. S/RES/1203 (1998)). This is before the S.C. Res. 1244, U.N. SCOR, 4011th mtg., 10 June 1999, U.N. Doc. S/RES/1244 (1999), which followed the NATO intervention and established an international security and civil presence in Kosovo.
123. On internal armed conflict see S/1997/258, supra note 82. In the case of Somalia, the Council's determination that an internal armed conflict was taking place is revealed by the mention of "widespread violations of international humanitarian law" in the preamble (S.C. Res. 814, U.N. SCOR, 3188th mtg., 26 Mar. 1993, U.N. Doc S/RES/814 (1993)).
124. Letter Dated 27 March 1997 from the Permanent Representative of Italy to the United Nations Addressed to the Secretary General, S/1997/259, reprinted in, COMUNITÁ INTERNAZIONALE, supra note 82, at 9. China was the only country that abstained in the vote on the resolution on Albania and explained that it had "never been in favor of the Security Council frequently invoking Chapter VII of the Charter in authorising such actions" (Id. at 8).
125. S.C. Res. 1214, supra note 65.
126. Id.
127. See S.C. Res. 1267 and S.C. Res. 1333, supra note 70.
128. See Charlesworth & Chinkin, supra note 74.
129. See Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist Approaches to International Law, 85 AM. J. INT'L L. 613, 633-34 (1991), who, as further evidence of this approach, juxtapose the paucity of substantive reservations made to the Convention on the Elimination of All Forms of Racial Discrimination to the plethora of reservations entered by States to CEDAW. See also Charlesworth & Chinkin, supra note 74, at 68, commenting on the list of human rights norms considered part of jus cogens in the Restatement (Third) of Foreign Relations Law of the United States. On the bias of jus cogens in the human rights sphere, see also Philip Alston & Bruno Simma, The Sources of Human Rights Law: Custom, Jus Cogens and General Principles, 12 AUSTRAL. Y.B. OF INT'L L. 82 (1992).
130. See Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist Approaches to International Law, 85 AM. J. INT'L L. 613, 633-34 (1991), who, as further evidence of this approach, juxtapose the paucity of substantive reservations made to the Convention on the Elimination of All Forms of Racial Discrimination to the plethora of reservations entered by States to CEDAW. See also Charlesworth & Chinkin, supra note 74, at 68, commenting on the list of human rights norms considered part of jus cogens in the Restatement (Third) of Foreign Relations Law of the United States. On the bias of jus cogens in the human rights sphere, see also Philip Alston & Bruno Simma, The Sources of Human Rights Law: Custom, Jus Cogens and General Principles, 12 AUSTRAL. Y.B. OF INT'L L. 82 (1992).
131. See Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist Approaches to International Law, 85 AM. J. INT'L L. 613, 633-34 (1991), who, as further evidence of this approach, juxtapose the paucity of substantive reservations made to the Convention on the Elimination of All Forms of Racial Discrimination to the plethora of reservations entered by States to CEDAW. See also Charlesworth & Chinkin, supra note 74, at 68, commenting on the list of human rights norms considered part of jus cogens in the Restatement (Third) of Foreign Relations Law of the United States. On the bias of jus cogens in the human rights sphere, see also Philip Alston & Bruno Simma, The Sources of Human Rights Law: Custom, Jus Cogens and General Principles, 12 AUSTRAL. Y.B. OF INT'L L. 82 (1992).
132. Human rights law treats the different types of discrimination "equally," but it is in the area of international criminal law that the gender bias of international law has become more manifest. The Charter of the Nuremberg Tribunal (Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 Aug. 1945, UK-USA-France-USSR, 82 U.N.T.S. 280) only mentioned "political, racial and religious" grounds of persecution as underlying crimes against humanity, but this was also due to the specific situation that the Charter was addressing (i.e. the particular type of racism and genocide practiced by the Nazi regime). The Rome Statute of the International Criminal Court, supra note 6, recognizes apartheid as a self-standing crime against humanity - art. 7 (1) (j). But persecution on various grounds, including gender, can amount to a crime against humanity only in connection with other acts, such as murder, extermination, enslavement, deportation, imprisonment or other severe deprivation of physical liberty, torture, and different forms of sexual violence - art. 7 (1) (h). Hence, institutionalized forms of systematic gender persecution, not consisting of those acts, such as is the case in a State practicing sexual apartheid like Afghanistan, may not constitute a crime against humanity under the definition of the Statute. On the other hand, with respect to sexual violence, both in the context of war crimes and crimes against humanity, the Statute has made some important steps forward as pointed out by Nicole Eva Erb, Gender-based Crimes Under the Draft Statute for the Permanent International Criminal Court, 29 COL. HUM. RTS. L. REV. 401 (1998).
133. Human rights law treats the different types of discrimination "equally," but it is in the area of international criminal law that the gender bias of international law has become more manifest. The Charter of the Nuremberg Tribunal (Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 Aug. 1945, UK-USA-France-USSR, 82 U.N.T.S. 280) only mentioned "political, racial and religious" grounds of persecution as underlying crimes against humanity, but this was also due to the specific situation that the Charter was addressing (i.e. the particular type of racism and genocide practiced by the Nazi regime). The Rome Statute of the International Criminal Court, supra note 6, recognizes apartheid as a self-standing crime against humanity - art. 7 (1) (j). But persecution on various grounds, including gender, can amount to a crime against humanity only in connection with other acts, such as murder, extermination, enslavement, deportation, imprisonment or other severe deprivation of physical liberty, torture, and different forms of sexual violence - art. 7 (1) (h). Hence, institutionalized forms of systematic gender persecution, not consisting of those acts, such as is the case in a State practicing sexual apartheid like Afghanistan, may not constitute a crime against humanity under the definition of the Statute. On the other hand, with respect to sexual violence, both in the context of war crimes and crimes against humanity, the Statute has made some important steps forward as pointed out by Nicole Eva Erb, Gender-based Crimes Under the Draft Statute for the Permanent International Criminal Court, 29 COL. HUM. RTS. L. REV. 401 (1998).
134. On the importance of the emergence and diffusion of the international norm of racial equality in the struggle against apartheid, see AUDIE KLOTZ, NORMS IN INTERNATIONAL RELATIONS: THE STRUGGLE AGAINST APARTHEID (1995).
135. The Secretary-General submitted these reports, entitled The Situation in Afghanistan and its Implications for Peace and Security, in 1977 (U.N. Docs. S/1997/482, S/1997/719, S/ 1997/894, 1998 (U.N. Docs. S/1998/222, S/1998/532, S/1998/913) and 1999 (U.N. Docs S/1999/362).
136. Letter of the Secretary General to the President of the Security Council of 1 May 1997 (S/1997/347). The question of gross violations of women's rights received only one incidental mention in the second last paragraph of the letter: "All participants voiced their distress at the continued plight of the Afghan people, with special attention drawn to women and girls."
137. In the Secretary General's last two reports of 1998 (S/1998/532, S/1998/913), supra note 96, the situation of women received hardly any attention. This may have to do with the fact that in May 1998, the UN reached an agreement with the Taliban authorities.
138. ECOSOC Res. 1998/9, U.N. ESCOR, 44th plen. mtg., 28 July 1998.
139. Does the ECOSOC Council in principle have the power to stop the provision of humanitarian assistance by a UN agency? In the case of the specialized agencies, this question can be solved primarily by looking at the specific agreement between the UN and the specialized agency concluded under arts. 57 and 63 of the Charter. In the 1960s the attempts of the General Assembly to stop World Bank and IMF from assisting Portugal and South Africa were not successful, as the Bank claimed that it was not bound by the resolutions of the General Assembly. See DOUGLAS WILLIAMS, THE SPECIALIZED AGENCIES AND THE UN: THE SYSTEM IN CRISIS 160 (1987); IBRAHIM SHIHATA, THE WORLD BANK IN A CHANGING WORLD 99 (1991). At any rate, these considerations are not so relevant in the context of Afghanistan, where most humanitarian assistance is actually provided by UNHCR and by the World Food Program (WFP), which were established by General Assembly resolutions and act under its authority and, subordinately, under the authority of the Economic and Social Council.
140. Does the ECOSOC Council in principle have the power to stop the provision of humanitarian assistance by a UN agency? In the case of the specialized agencies, this question can be solved primarily by looking at the specific agreement between the UN and the specialized agency concluded under arts. 57 and 63 of the Charter. In the 1960s the attempts of the General Assembly to stop World Bank and IMF from assisting Portugal and South Africa were not successful, as the Bank claimed that it was not bound by the resolutions of the General Assembly. See DOUGLAS WILLIAMS, THE SPECIALIZED AGENCIES AND THE UN: THE SYSTEM IN CRISIS 160 (1987); IBRAHIM SHIHATA, THE WORLD BANK IN A CHANGING WORLD 99 (1991). At any rate, these considerations are not so relevant in the context of Afghanistan, where most humanitarian assistance is actually provided by UNHCR and by the World Food Program (WFP), which were established by General Assembly resolutions and act under its authority and, subordinately, under the authority of the Economic and Social Council.
141. For 1996, around 124 million USD were requested by the UN; this figure for 1997 stood at 133 million, at 157 million for 1998, at 184 million for 1999, and at 220 million USD for 2000 (only 34 percent of the 2000 request was met). See Inter-agency Consolidated Appeal for Afghanistan at 〈http://www.reliefweb.int〉. Inter-agency appeals are launched by the Secretary General, and they are normally followed by a resolution of the General Assembly in which the Assembly calls upon all member states to respond to the appeal.
142. Afghanistan is a party to the ICCPR and the ICESCR; to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85; to the International Convention for the Elimination of all Forms of Racial Discrimination, opened for signature 7 Mar. 1966, 660 U.N.T.S. 212; and to the CRS, but it has only signed CEDAW. Afghanistan's reports to the Committees established under these treaties for monitoring compliance are overdue.
143. Afghanistan is a party to the ICCPR and the ICESCR; to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85; to the International Convention for the Elimination of all Forms of Racial Discrimination, opened for signature 7 Mar. 1966, 660 U.N.T.S. 212; and to the CRS, but it has only signed CEDAW. Afghanistan's reports to the Committees established under these treaties for monitoring compliance are overdue.
144. Situation of Human Rights in Afghanistan, Commission on Human Rights Resolution 1998/70, U.N. Doc. E/CN.4/Res/1998/70 (1998), and, more recently, Res. 1999/9, U.N. Doc. E/CN.4/Res/1999/9 (1999).
145. See Situation of Women in Afghanistan, Sub-commission on the Prevention of Discrimination and Protection of Minorities Resolution 1998/17, U.N. Doc. E/CN.4/Res/ 1998/17, 21 Aug. 1998, in which the Sub-commission took note of the "numerous reports dealing with the unprecedented and extremely difficult situation of women in Kabul and the other parts of Afghanistan controlled by the Taliban, in particular widows who cannot support themselves because they are not permitted to work or to benefit from humanitarian assistance, which is given only to men." In 1999 the Economic and Social Council changed the title of the Sub-commission on Prevention of Discrimination and Protection of Minorities to Sub-commission on the Promotion and Protection of Human Rights. The text of the resolutions of the Sub-commission is available at 〈http://www.unhchr.ch/huridocda/huridoca.nsf〉.
146. Id. On the Sub-Commission's response to allegations of human rights violations, see Asbjørn Eide, The Sub-Commission on Prevention of Discrimination and Protection of Minorities, in THE UNITED NATIONS AND HUMAN RIGHTS: A CRITICAL APPRAISAL 211, 248-52 (Philip Alston ed., 1992). The Sub-commission was basically recommending the adoption of a policy of non-recognition of the Taliban regime. In the past, non-recognition has been normally adopted in relation to new states (e.g. Rhodesia and the Turkish Republic of Northern Cyprus), and foreign occupation or annexation (e.g. the Iraqi invasion of Kuwait in 1990 and Namibia).
147. ECOSOC Res. 1984/37, U.N. ESCOR, 20th mtg., 24 May 1984.
148. At the time of writing the most recent report of the Special Rapporteur, Mr. Kamal Hossain, was submitted to the Economic and Social Council on 24 March 1999 (U.N. Doc. E/CN.4/1999/40). The situation in Afghanistan was also the object of some attention in the reports submitted by the thematic Special Rapporteurs, for instance by the Special Rapporteur on Torture (U.N. Doc. E/CN.4/1998/38) and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (U.N. Doc. E/CN.4/1998/ 68/Add.1).
149. After January 1998 it has been re-named Office for the Co-ordination of Humanitarian Affairs (OCHA).
150. U.N. Dept. of Humanit. Aff., Afghanistan Weekly Update No. 191 (6 Nov. 1996), available at 〈http://www.reliefweb.int/ocha_ol/nov_96.html〉.
151. U.N. Dept. of Humanit. Aff., Report of the DHA Mission to Afghanistan (15 June 1997, at Intro. [hereinafter DHA Report]; available at 〈http://www.notes.reliefweb.int〉 (visited 27 Mar. 2001).
152. Id.
153. Id. at 4.3.
154. Id. at 5.2.
155. See also MARSDEN, supra note 7 at 110-11 and 115. Among NGOs, Save the Children the Fund (UK) and Medicins Sans Frontiers took similar stances.
156. DHA Report, supra note 110, at 3.4.1.
157. Report of the Inter-Agency Gender Mission to Afghanistan, 12-24 Nov. 1997 (available through the Division for the Advancement of Women). The mission was headed by the Special Adviser to the Secretary-General on Gender Issues and Advancement of Women, Angela King. The full text of the report is no longer available in web format, however, a summary can be found at 〈httpy/www.un.org/womenwatch/news/articles /afsummary.htm〉. The full text is on file with the author.
158. Id. ¶ 50.
159. Id. ¶ 19.
160. Id. ¶ 18.
161. Id. ¶ 14.
162. Id. ¶ 15.
163. S/1998/532, supra note 96, at ¶ 39.
164. An illustration of how compromises on basic standards can have negative repercussions in the longer term is offered by my research on refugee rights in Kenya. UNHCR took over the refugee status determination procedure from the Kenyan Government in the early 1990s. UNHCR's failure to respect international standards in its procedure for determining refugee status (see Guglielmo Verdirame, Human Rights and Refugees: The Case of Kenya, 12 J. REFUGEE STUD. 54, 58-59 and 75-76 (1999)) is now backfiring. In fact, the Kenyan government intends to resume refugee status determination and, in the wake of UNHCR's own dismal record, is dismissive of this institution's efforts to ensure that new procedure will comply with minimum standards of fairness.
165. See Memorandum of Understanding (on file with author). In his first report to the Security Council after the signing of the Memorandum of Understanding, the Secretary General presented the Memorandum as an "agreement [that] lays out codes of conduct for both the United Nations and local authorities, sets up a mechanism for joint collaboration and resolution of problems and deals in a preliminary way with gender issues." (U.N. Doc. S/1998/532, supra note 96, at ¶ 40.)
166. Memorandum of Understanding, art. 12.
167. Memorandum of Understanding, art. 13.
168. Following the conclusion of the agreement, the United Nations resumed its programs in southern and south-western Afghanistan. Id.
169. There is a specific provision of the UN Charter devoted to non-discrimination within the Organization (Article 8).
170. Human rights NGOs have criticized the terms of the Memorandum (see Human Rights Watch, World Report 1999 164 (1999); Physicians for Human Rights, Report on Afghanistan (5 Aug. 1998)). Humanitarian NGOs working in Afghanistan have also voiced some criticism (e.g. Médecins sans Frontiers (MSF), Press release of 21 July 1998 (available in June 1998), 〈http://www.msf.org/pressrel/kabul1.htm〉). However, with the exception of MSF, which was even expelled from Afghanistan in July 1998 as a result of its stance on discrimination, other NGOs have limited themselves to soft criticism, perhaps also due to the absence of international lawyers on the field who can articulate these positions in legal terms.
171. Human rights NGOs have criticized the terms of the Memorandum (see Human Rights Watch, World Report 1999 164 (1999); Physicians for Human Rights, Report on Afghanistan (5 Aug. 1998)). Humanitarian NGOs working in Afghanistan have also voiced some criticism (e.g. Médecins sans Frontiers (MSF), Press release of 21 July 1998 (available in June 1998), 〈http://www.msf.org/pressrel/kabul1.htm〉). However, with the exception of MSF, which was even expelled from Afghanistan in July 1998 as a result of its stance on discrimination, other NGOs have limited themselves to soft criticism, perhaps also due to the absence of international lawyers on the field who can articulate these positions in legal terms.
172. Jennings & Watts, supra note 43, at 1220. See The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 Mar. 1986, 25 I.L.M. 543 (not yet in force) [hereinafter "Vienna Convention on Treaties between States and International Organizations"].
173. Jennings & Watts, supra note 43, at 1220. See The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 Mar. 1986, 25 I.L.M. 543 (not yet in force) [hereinafter "Vienna Convention on Treaties between States and International Organizations"].
174. On this Convention, see Giorgio Gaja, A "New" Vienna Convention on Treaties between States and International Organizations and between International Organizations: A Critical Commentary, 58 BRIT. Y.B. INT'L L. 235 (1987);
175. Felice Morgenstern, The Convention on the Law of Treaties between States and International Organizations or between International Organizations, in INTERNATIONAL LAW AT A TIME OF PERPLEXITY 435 (Yoram Dinstein ed., 1989).
176. From the "Ihlen Declaration" to the joint communiqué at the end of a meeting between two Prime Ministers to the so-called Doha Minutes, the object of Qatar v. Bahrain, international law knows numerous examples of treaties concluded with a significantly greater degree of informality than in the case of the Memorandum. Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser. A/B), No. 53 (5 Apr.); Aegean Sea Continental Shelf (Greece, v. Turk.), 1978 I.C.J. 3 (19 Dec.); Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahr.), 1995 I.C.J. 6 (15 Feb.).
177. Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar, v. Bahr.), 1995 I.C.J. 6 (15 Feb.). On this case and on the broader question of non-binding agreements, see: Christine Chinkin, A Mirage in the Sand? Distinguishing Binding and Non-Binding Relations between States, 10 LEIDEN J. OF INT'L L. 223 (1997).
178. See Report of the Secretary General, S/1998/532, supra note 96. In Interpretation of Agreement of 25 March 1951 between the WHO and Egypt, 1980 I.C.J. 73, 92 (Dec. 20, 1980), the Court considered various agreements concluded by Egypt and the WHO between 1949 and 1951. While these documents could be "regarded as distinct agreements or as separate parts of one transaction," there was no doubt that they established a "contractual legal regime" between the parties.
179. Vienna Convention, supra note 130. Art. 2 of the Convention explains that the rules of the organizations encompass "the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organization" (Article 2).
180. See Charlesworth & Chinkin, supra note 74. The provision on jus cogens of the two Vienna Conventions on treaty law is identical and, in both Conventions, is located at article 53.
181. See Charlesworth & Chinkin, supra note 74, who refer to other authors who accept that non-discrimination is part of jus cogens, and Alston & Simma, supra note 81. Even in an extreme statist and consensualist approach it would be hard to deny that at the very least the principle of non-discrimination is part of customary law.
182. See Charlesworth & Chinkin, supra note 74, who refer to other authors who accept that non-discrimination is part of jus cogens, and Alston & Simma, supra note 81. Even in an extreme statist and consensualist approach it would be hard to deny that at the very least the principle of non-discrimination is part of customary law.
183. On jus cogens nature of the right to life, for example, see B.C. Ramcharan, The Concept and Dimensions of the Right to Life, in THE RIGHT TO LIFE IN INTERNATIONAL LAW 1, 14-15 (B.G. Ramcharan ed., 1985).
184. According to Article 46 of the Vienna Convention on Treaties between States and International Organizations, the violation of the rules of the organization regarding competence cannot be normally invoked as invalidating consent.
185. As an example of more recent institutional practice confirming this approach, see the Strategic Framework, supra note 12.
186. Report of the Special Rapporteur for Human Rights, supra note 99. In this report, the Rapporteur also "observed some relaxation of the restrictions imposed on the rights of women, as a few women doctors and nurses were seen at work in a hospital attending to female patients." Id. ¶ 21.
187. Nicholas Morris, Protection Dilemmas and UNHCR's Response: A Personal View from within UNHCR, 9 INT'L J. REFUGEE L. 492, 494 (1997). For the author's criticism of this view, see Verdirame, supra note 123, at 75-76.
188. Nicholas Morris, Protection Dilemmas and UNHCR's Response: A Personal View from within UNHCR, 9 INT'L J. REFUGEE L. 492, 494 (1997). For the author's criticism of this view, see Verdirame, supra note 123, at 75-76.
189. Kenneth Cain, The Rape of Dinah: Human Rights, Civil War in Liberia, and Evil Triumphant, 21 HUM. RTS. Q. 265, 297 (1999).
190. DHA Report, supra note 110, at Introduction.
191. See, e.g., World Food Programme, Strategic Framework for the UN in Afghanistan (supra note 12), which states that "the overarching goal of the United Nations in Afghanistan is to facilitate the transition from a state of internal conflict to a just and sustainable peace through mutually reinforcing political and assistance initiatives" (emphasis in the text). Having formulated the main goal of the UN action in this fashion, and consistently therewith, it is then argued that compliance with the principle of non-discrimination in the provision of humanitarian assistance cannot be practically attained in the short term. According to Cassese "in the current framework of the international community, three sets of values underpin the overarching system of inter-state relations: peace, human rights and self-determination." This author also notes that "any time that conflict or tension arises between two or more of these values, peace must always constitute the ultimate and prevailing factor" (Cassese, supra note 51, at 24). This observation relates to the context of inter-state relations. On the other hand, the argument that the UN involvement in Afghanistan has to be based on the pursuit of an agreement to end an internal armed conflict at all costs, including the sacrifice of fundamental values protected under the Charter and under human rights law, would not presumably find support in the values of international community as understood by Cassese.
192. See, e.g., World Food Programme, Strategic Framework for the UN in Afghanistan (supra note 12), which states that "the overarching goal of the United Nations in Afghanistan is to facilitate the transition from a state of internal conflict to a just and sustainable peace through mutually reinforcing political and assistance initiatives" (emphasis in the text). Having formulated the main goal of the UN action in this fashion, and consistently therewith, it is then argued that compliance with the principle of non-discrimination in the provision of humanitarian assistance cannot be practically attained in the short term. According to Cassese "in the current framework of the international community, three sets of values underpin the overarching system of inter-state relations: peace, human rights and self-determination." This author also notes that "any time that conflict or tension arises between two or more of these values, peace must always constitute the ultimate and prevailing factor" (Cassese, supra note 51, at 24). This observation relates to the context of inter-state relations. On the other hand, the argument that the UN involvement in Afghanistan has to be based on the pursuit of an agreement to end an internal armed conflict at all costs, including the sacrifice of fundamental values protected under the Charter and under human rights law, would not presumably find support in the values of international community as understood by Cassese.
193. Aristotelian ethics was based on the concept of "practical wisdom" (phronesis), which, unlike "scientific knowledge" (episteme), does not involve universals. See ALASDAIR MACINTYRE, WHOSE JUSTICE? WHICH RATIONALITY? 92 (1988). On the "re-discovery" of Aristotelianism in the ethical sphere, which in part results from Hans Georg Gadamer's hermeneutics, see, e.g., ALBERT R. JONSEN & STEPHEN TOULMIN, THE ABUSE OF CASUISTRY (1988) and CARLO A. VIANO ET AL., TEORIE ETICHE CONTEMPORANEE (1990).
194. Aristotelian ethics was based on the concept of "practical wisdom" (phronesis), which, unlike "scientific knowledge" (episteme), does not involve universals. See ALASDAIR MACINTYRE, WHOSE JUSTICE? WHICH RATIONALITY? 92 (1988). On the "re-discovery" of Aristotelianism in the ethical sphere, which in part results from Hans Georg Gadamer's hermeneutics, see, e.g., ALBERT R. JONSEN & STEPHEN TOULMIN, THE ABUSE OF CASUISTRY (1988) and CARLO A. VIANO ET AL., TEORIE ETICHE CONTEMPORANEE (1990).
195. Aristotelian ethics was based on the concept of "practical wisdom" (phronesis), which, unlike "scientific knowledge" (episteme), does not involve universals. See ALASDAIR MACINTYRE, WHOSE JUSTICE? WHICH RATIONALITY? 92 (1988). On the "re-discovery" of Aristotelianism in the ethical sphere, which in part results from Hans Georg Gadamer's hermeneutics, see, e.g., ALBERT R. JONSEN & STEPHEN TOULMIN, THE ABUSE OF CASUISTRY (1988) and CARLO A. VIANO ET AL., TEORIE ETICHE CONTEMPORANEE (1990).
196. JONSEN & TOULMIN, supra note 145, at 5.
197. Myron Weiner, The Clash of Norms: Dilemmas in Refugee Policies, Paper presented at the Conference on the Growth of Forced Migration, hosted by the Refugee Studies Program at Wadham College, University of Oxford, 25-27 Mar. 1998.
198. See CEDAW, art. 3, supra note 75. Moreover, as already observed, the jus cogens nature of the standard on non-discrimination also has consequences on the plane of responsibility. Article 33 of the ILC Draft Articles on State Responsibility excludes the use of state of necessity by a State as a circumstance precluding wrongfulness "if the international obligation with which the act of the State is not in conformity arises out of a peremptory norm of international law."
199. I owe this expression to Robert Nozick who defines a "utilitarian of rights" as one whose "goal is . . . to minimize the weighted amount of the violation of rights in the society . . . even through means that themselves violate people's rights" in ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 30 (1974).
200. Susan Sontag summarizes Leni Riefenstahl's work on the Nuba as a "lament for vanishing primitives" (in her essay "Fascinating Fascism," in UNDER THE SIGN OF SATURN 86 (1991)). Sontag argues that the rehabilitation of Riefenstahl since the 1960s as a result of her work on the Nuba is in part due to the continuing appeal exercised by the "primitivist ideal"; hers is "a portrait of a people subsisting in a pure harmony with their environment, untouched by 'civilization'." Id. Such "laments for vanishing primitives" indeed underlie the "liberal" defense at all costs of cultural identities, simplistically construed, against the perceived aggression of external forces, including the human rights discourse.
201. NIRA YUVAL-DAVIS, GENDER AND NATION 38 (1997).
202. It is hardly a coincidence that a cultural relativist argument was used in Mendaro v. World Bank to uphold the immunity of the Bank in a case of sexual discrimination in the work place. Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983) and Michael Singer, Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns, 36 VIRG. J. INT'L L. 53, 93-95 (1995).
203. See, for instance, Sadako Ogata's reported controversial comments on forced labor in the context of UNHCR's much criticized repatriation of the Rohingyas to Burma: "Forced labor is an old tradition, it is something like a taxation, the poorer you are, the more often you are called in. I am not saying it is good or bad. . . . Forced labor in Rakhine State is not an every day every night kind of work, it is a periodical one. We would not like to have that, but if that is the way to some extent it is carried out, and people can bear it, it is one way of settling. Of course we would like this to be a much more voluntary contribution to your community work." Asked if forced labor does not constitute a human rights violation, she replied: "It depends on how you define forced labor and how you define human rights violation. I think it has to be understood practically in the context of your community and their tradition, and then the limited choice these people have." (Transcript by Burma Centrum Nederlands of the Press Conference of Sadako Ogata, UN High Commissioner for Refugees, The Hague, 1 Sept. 1998) (on file with author).
204. Harrell-Bond The Experience of Refugees, supra note 36; Barbara Harrell-Bond, Humanitarianism in a Strait-Jacket, 84 (334) AFR. AFF. 3 (1985). See also African Rights, Discussion Paper No. 5, Humanitarianism Unbound? (Nov. 1994).
205. Harrell-Bond The Experience of Refugees, supra note 36; Barbara Harrell-Bond, Humanitarianism in a Strait-Jacket, 84 (334) AFR. AFF. 3 (1985). See also African Rights, Discussion Paper No. 5, Humanitarianism Unbound? (Nov. 1994).
206. Harrell-Bond The Experience of Refugees, supra note 36; Barbara Harrell-Bond, Humanitarianism in a Strait-Jacket, 84 (334) AFR. AFF. 3 (1985). See also African Rights, Discussion Paper No. 5, Humanitarianism Unbound? (Nov. 1994).
207. Anne Orford, Locating the International: Military and Monetary Interventions after the Cold War, 38 HARV. INT'L L. J. 443, 444 (1997).
208. These illusions of international lawyers, so much part of the "Geneva atmosphere" in the inter-war period, played an important role in the intellectual history of Hans Morgenthau. See B.S. CHIMNI, INTERNATIONAL LAW AND WORLD ORDER: A CRITIQUE OF CONTEMPORARY APPROACHES 22-26 (1993).
209. Gerry Simpson, On the Magic Mountain: Teaching Public International Law, 10 EUR. J. INT'L L., 89 (1999).