One part of the Programme on International Legal Cooperation (PILC) is a visit to the Court of Justice of the European Communities in Luxembourg. For this, the PILC students gathered early in the morning of December 6, 2004. They were joined by Marleen Van Impe of the IES-PILC secretariat and Frédérique Lambrecht, researcher at the IES. After a smooth bus trip and a quick lunch we met up with our guide who helped us to discover the secrets of Luxembourg City. The guide did a splendid job explaining the new part of the city, full of banks and international institutions housed in modern buildings of glass and steel. However, the small but wonderful historic part of the city was what really impressed us. Needless to say that the cameras were flashing constantly and Luxembourg won the hearts of the PILC students.
The next morning the Court of Justice was awaiting us. After a brief but clear introduction to the case, we attended the proceedings before a Grand Chamber of 13 Judges. The case was particularly important because it concerned the scope of a Member State’s non-contractual liability for errors by its national judges. The Köbler case of 2003 already established the principle that a Member State is liable for the damage caused to an individual by an infringement of Community law attributable to a national court. However, the scope of this liability for judicial errors is still a matter of heavy debate. No wonder the proceedings we saw were spiced up with some interventions by Member States to limit or to stretch the scope of application as much as possible.
Together with the PILC students we are now looking forward to the Court’s preliminary ruling on this important matter.
After the hearing, the Belgian Judge Koen Lenaerts welcomed us personally and took the time to explain the Court’s working. He was also pleased to answer any question of the students. Unfortunately he could not attend the buffet-lunch offered by him and the Belgian Judge Franklin Dehousse of the Court of First Instance. The referendars of Judge Lenaerts however joined the PILC students and answered the many questions they had, both on legal issues and on very practical issues such as “How does your day look like?”
For most of us the moment of departure came too soon
and questions to the referendars remained. However, for all of us this
visit to the Court of Justice was a teaser fuelling our interest in
the Court’s working and role. PILC students now will have no difficulties
to study the theory of judicial protection in the European Union.
New Lecture Series on Multiculturalism
The Institute for European Studies is organising a lecture series during the first semester of 2005 to address one of the most topical and pressing subjects of the day, namely the social effects of migration on the countries of the European Union. The objective is to bring more clarity to public discourse on the topic and to engage as wide an audience as possible. Under the auspices of IES Senior Research Fellow Richard Lewis, experts in the field from Europe, the United States and Canada will be visiting our Institute every Tuesday evening starting February 15. The full programme of this lecture series is available at the end of this newsletter (see the calendar of events). More information can be found on our website at activities/multicult/
Sustainable Development Lectures Come to an End
Next lecture series on “Multiculturalism in the EU” will start on 15 February. The full programme can be found here.
IES' Fisheries Policy on tour
The Course seeks to transfer past experiences in the field of environmental law to the future negotiators of environmental agreements and aims, in addition, to provide a forum to foster North-South co-operation and to take stock of recent developments in negotiations and implementation of multilateral agreements and in diplomatic practices in the field. Prof. Dr.Marc Pallemaerts, senior research fellow at the IES, lectured at the UNEP Course on the basic environmental law principles and on the major developments in international environmental law-making.
Koen also attended the 12th Annual Conference of the European Environment and Sustainable Development Advisory Councils EEAC in Berlin. Through workshops on sector themes (e.g. Ecosystem Approach, Common Fisheries Policy, Marine Nature Conservation and Regional planning), the conference focused on a European Policy for the Marine Environment, by considering inter alia the Integration of marine issues into other policies.
As a member of the Dutch Association of International Law and its working group on the law of the sea, Koen also regularly convenes at the Ministry of Foreign Affairs in The Hague with the aim of exchanging information and thoughts on relevant developments in the field of the law of the sea. These include the UN General Assembly’s Resolution on the Law of the sea, the ongoing discussion at UN and EU level on the legal regime for the protection of marine biodiversity in areas beyond national jurisdiction, and the EU draft-guidelines on criminal sanctioning of oil discharges at sea.
In December, Koen participated in the third Verzijl Memorial Symposium: Stability and Change in the Law of the Sea, organised by the University of Utrecht.
Environmental Product Regulation
The IES Brown Bag lunch series on ‘Environmental Product Regulation’ brings together experts from the regulatory, legal and academic communities. An excellent line up of speakers have joined us at the IES to speak about current environmental and product regulation.
Dr. Candido Garcia Molyneux, an attorney specialising in Trade and Environment Law, at the prestigious law firm of Covington & Burling joined us on 24 November, 2004 to speak about ‘The Crying Game of Trade and Environment: Some Examples of EU Product Regulation’. Dr. Garcia Molyneux touched on the relationship between Trade (WTO) law and EU environmental initiatives, in the field of chemicals (REACH) and hazardous substances (RoHS).
For our last talk of 2005 we were joined by Dr. Otto Linher from the European Commission’s Environment Department. Dr. Linher, who is the Desk Officer on Packaging legislation, shared his views about revision of existing Packaging legislation,
The series of talks is organized thanks to the support of the Belgian Federal State Science Policy Department. They are funding a 2 year project on “The role of public authorities in integrated product policy: regulators or coordinators?”, carried out by IES researcher Aaron McLoughlin in collaboration with researchers from the VUB Department of Political Science and the Environmental Law Research Centre (CEDRE) of the Facultés Universitaires Saint-Louis. The project is headed by IES Senior Research Fellow Prof. Dr. Marc Pallemaerts.
Online Educa Berlin
Last December, IES Researcher Ruben Lombaert participated in EDUCA online, the 10th edition of Europe’s biggest e-learning conference. With over 1700 participants from 66 countries, it proved to be a very interesting (and exhausting) three days.
Online EDUCA had a big mix of participants, coming from the private sector (with heavyweights such as Microsoft and IBM), non-profit sector organizations involved in vocational training, and universities worldwide. This, together with hundreds of sessions ranging from product and project presentations, and concrete “how to do/make”-sessions, made it possible to get a broad overview of the “state of the art”, and to evaluate our own efforts in the field.
EDUCA showed us a lot of new theoretical approaches to e-learning and demonstrated private sector solutions. The new member states, sometimes with very limited means but high determination, managed to create impressive tools, and introduce e-learning in fields which seemed implausible at first.
E-Learning is definitely a new buzz-word, but we should remember that it is not only about technology but about learning and the learner.
Does Product Regulation Encourage Sustainable Innovation?
Aaron McLoughlin gave a panel paper about ‘Environmental product regulation role in innovation – the WEEE and RoHS Directives at Imperial College (London University, UK) on 9 December during a workshop on Policy Drivers and Barriers for Sustainable Development.
Aaron spoke about how the EU Directives on waste electronic equipment (WEEE) (Directive 2002/96/EC), and on the restriction of certain hazardous substances in electronic equipment (RoHS)(Directive 2002/95/EC) have promoted, but also limited, environmental innovation in products.
This Workshop, held by Imperial College’s Environmental Policy and Management Group (EPMG), is part of work to produce guidelines for regulators to promote sustainable innovation. This project is funded by the UK ESCRC Sustainable Technologies Programme.
More Information on:
International Commission on Migration
Senior Research Fellow Richard Lewis was invited to attend the General Commission on International Migration European Hearings in Budapest on November 25th and 26th 2004. He was among about 180 governmental, academic, business and non-governmental interests invited by the Commission that was set up by UN Secretary General Kofi Annan in December 2003 to report on problems posed by migratory flows by July 2005 and make recommendations on how to tackle them.
The General Commission consists of about 20 persons who have distinguished themselves in public or academic life plus a small secretariat of public servants or academics who are themselves experts in migration. The personalities include former Irish president Mary Robinson, former New Zealand premier and director general of the World Trade Organisation Mike Moore, Academician Valery Tishkov, Professor Rita Sussmuth (who chaired the committee on German immigration law reforms) and former European Commissioner Manuel Marin.
The hearings in Budapest are one of five such events organised in Asia, Africa, the Middle East and South America as well as Europe. They are held under Chatham House rules which essentially means that opinions can be freely expressed without being attributed to individuals. This results in a very free and honest debate that can take place without fear that participants will be singled out for their views.
The working group sessions covered all aspects of migration – irregular flows, the role of civil society, economic aspects of migration, human rights and national, regional and international governance. Talking to the member of the General Commission – many of whom are non-specialists- Richard had the impression that they were well satisfied by the results of the discussions.
It remains to be seen whether the General Commission will be able to complete its work in the time limits set by the Secretary General and when the report sees the light of day how it will be followed up and its recommendations translated into concrete action.
The IES raised its profile a notch in Budapest. Richard was approached by the Central European University in Budapest and the Bogazici University in Istanbul for potential discussions on possible cooperation. In addition, people at the meeting were made aware of our activities (such as the upcoming lecture series - see calendar below) and links in this field.
Will these things still happen in Africa a century
from now? Will it ever change? Why are massacres of civilians allowed
to happen in Sudan? Why has no one even counted the dead?(1)
Article 4(h) of the Constitutive Act of the African Union (AU)(2) makes provision for “The right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.” The intent and spirit of this normative statement marks an unmistakable but ostensible shift from the erstwhile hackneyed mantra of hallowed inviolability of the principle of territorial integrity which was dew to the Organisation of African Unity (OAU). Yet this semblance of a shift is but a distorted shadow of expensive and rather unsustainable aspirations. The dissonance of grandiosity on the one hand and inadequate capacity on the other has recently been brought into starker relief by the inability and reluctance of the AU to appositely address the crisis in Darfur in Western Sudan.
In this short treatise we examine some of the remote and immediate causes of the current crisis in Darfur. An appraisal is made of the reactions of the African Union to the imbroglio. We argue that the conflict in Darfur presents an incipient yet receding opportunity for the AU to impress its prodigious vision on the collective consciousness of failing democracies in Africa of which Sudan stands out as a veritable epitome. In this regard it is contended that the timid responses adopted by the supranational institution during the conflict send the wrong signal to weak democracies and only make the AU amenable as a pawn to be manipulated by certain governments. Finally we evaluate the nature of the reactions of other international actors to the conflict. Pride of place goes to the United Nations Organisation (UN), the European Union (EU) and the United States (US). In the conclusion a proposal is made for selective, if not ‘restrictive’ regionalism in Africa; one led by democracies poised to serve as models and as ‘the coalition of hope’ for Africa.
Darfur(3) : A tale of proprietary interests allowed
to run amok
Sudan is located in the North Eastern flank of Africa and it shares borders with Eritrea, Ethiopia, Kenya, Uganda, The Democratic Republic of Congo (DRC), Central African Republic, Chad, Libya and Egypt. With a population of about 34.3 million (UN, 2004) and a land mass of 2.5 square kilometres (World Bank, 2003) making it the largest African country, one may be tempted to assume that land ought to be a remote priority for Sudanese. However, the conflict in Darfur that has pitted the black tribes of Fur, Massalit and Zaghawa against the Arab Baggara corroborates the fact that tensions regarding resource distribution abound. The situation has been compounded by an increase in the population of the region from two million in 1984 to about six million in 2004. The implication of this expansion has been an accentuated craving for space by Arab pastoralists in areas owned by black sedentary farmers. The drought that hit the region in the 1980s only provoked greater frictions amongst the tribes. In the 1990s these differences persisted. In 1996 there were local skirmishes between Arab Rezeigats and African Zaghawas. Between 1997 and 1999 there were conflicts that pitted the local Massalits against Um Jullul Arabs(4).
All the same, the immediate cause of the current crisis was the decision of the leader of the Darfur Liberation Front (DLF), Abdel Wahid Mohammed Nur, to launch an attack on Government-held installations on 25 February 2003. The DLF attracted admiration from most of the African tribes and by March, it had widened its reach to other black tribes including Massalit, Zaghawa and Bertis. Thereafter the movement adopted a new name – Sudanese Liberation Army. After seizing air bases in North Darfur, the rebels intensified their assault on many government garrisons. In an act of riposte, General Omar Bashir dismissed all the governors of Darfur and appointed General Osman Kibir as new governor of North Darfur. Due to the fact that most foot soldiers of the regular army were Darfuris who did not enjoy the unalloyed trust of Khartoum, Kibir immediately unleashed an Arab militia group to counter the insurgents. The militia group, known as the Janjaweed (‘soldiers of the devil’) was armed by the Government(5) and is believed to have been set up by security agencies under the control of Vice President Osman Mohammed Taha. The Arab clans from which the militia group was enlisted were Ereigat and the Mahariya(6) . None the less, the efforts of the Janjaweed were rendered Herculean after the reactivation of another rebel group – The Justice and Equality Movement (JEM) – led by Khalil Ibrahim.
Regardless of the ceasefire agreements that have been signed between the Government and the rebels, the Janjaweed have persisted in the perpetration of crass violations of human rights in clans and camps believed to be harbouring rebels. Harrowing experiences of rape and systematic mass killings have been reported(7) yet the Government in Khartoum and the Arab militia have displayed a sinister bent for impenitent indifference.
Reaction of the African Union
The creation of the AU provided a moment of hope for many an African, not least because of the dismal record of its predecessor as a trouble shooter. This hope was encoded in Article 4(h) of the Constitutive Act of the AU which ordains the option of direct military intervention in situations of genocide, war crimes and crimes against humanity. As noted above, reports have referred to unfathomable carnage going on in Darfur and the BBC reported on 8 November 2004 that about 70,000 people have been killed since February 2003 while 1.6 million are displaced from their dwellings. But what concrete actions have the regional African body (the AU) taken in accordance with the much vaunted intent that underlies Article 4(h)?
To begin, Member States of the African Union have abstained from public criticisms of the Khartoum Government. This is tantamount to inadvertent toleration of the acts of abysmal injustice perpetrated by the regime of President Bashir. On the regional plane, the Peace and Security Committee of the AU “expressed concerns” in April 2004 over the humanitarian situation in Darfur and called on the Government to bring the perpetrators to justice. Besides being one of the observers of the ceasefire agreement signed between the rebels and the Government on 8 April in Chad, it sent 237 Rwandan and 50 Nigerian troops to Darfur on 30 October 2004 to protect AU observers and aid workers. Their mandate did not permit them to use force in protecting civilians from attacks. Thus despite persistent acts of rape and arson the forces have been frustratingly helpless to defend innocent people.
For varied reasons, President Olusegun Obasanjo of Nigeria has been investing much capital in the peace process yet little has been achieved on the ground. A series of meetings were organised in Abuja between the warring parties but the passing of time only reveals the fact that for the AU to live up to the aspirations encapsulated in Article 4(h), direct actions must be planned and executed regardless of the trenchant resistance from obdurate governments. There are seminal hopes that the negotiated settlement with the Southern rebels of the Sudanese Peoples Liberation Movement/ Army (SPLM/A) led by John Garang, will provide the momentum for the resolution of the crisis in Darfur. However, one must bear in mind that there is a fresh possibility that Khartoum would rather exploit the moment of respite in the South by simply moving government soldiers to Darfur to quell the insurgency.
The UN, The EU and the US
Some UN officials such as Mukesh Kapila, Jan Egeland and Jan Pronk have been unequivocal in qualifying the situation in Darfur. Kapila (Resident Representative for Sudan) and Egeland (Under-Secretary for Humanitarian Affairs and Emergency Relief Coordinator) have both described the constellation of events as ethnic cleansing(8). On his part and after visiting Darfur Jan Pronk (Special Envoy to Sudan) stated that he had found clear evidence of violence against displaced people and aid workers by the security forces(9). In spite of UN Security Council Resolution 1556 (2004) that called on the Government to disarm the militia, the status quo has remained unchanged and this was reflected in a statement by UN Secretary General Koffi Annan when he asserted that the situation in Darfur “leaves me with a deep sense of foreboding. Whatever terms it uses to describe the situation, the international community cannot stand idle”(10). Be these as they may, it is worth noting that politics within the UN Security Council has contributed to freezing the situation in Darfur. It is unthinkable that concrete actions such as sanctions would be imposed on the Bashir regime. This is because China, one of the Permanent Members of the Security Council, is also a major investor in the Sudanese oil sector. With this mind one may affirm that the option of coercion on the part of the Security Council is but a faint and receding horizon.
The European Union has been a fervent critic of the regime in Khartoum. In 1990 it suspended its development cooperation with the Government on the basis of gross violations of human rights. Since 1999 parallel political dialogue has been initiated with the Government as well with southern rebels. In 2001 it was agreed that full cooperation would be kick-started should the Government reach a comprehensive and lasting peace deal with the SPLM/A. Specific humanitarian programmes such as ‘Humanitarian Plus’ (18 million euros) were maintained. As a member of the African Caribbean and Pacific association (ACP), Sudan has been allocated 135 million euros from the 9th European Development Fund (EDF) for Envelope A (programmable funds) and 20 million for Envelope B (emergencies). Six million from Envelope A is to be dedicated to peace-building efforts. These specific engagements are symptomatic of the possible leverage the Union has in this war-torn country. In as much as the crisis in Darfur is concerned it recently condemned attacks on civilians by the Arab militia(11) but did not explicitly qualify the events as genocide.
The US has been forthright in describing the systematic carnage in Darfur as genocide. On 23 July 2004 both chambers of the US Congress passed a joint resolution characterising the armed conflict in Darfur as genocide. The statement called on President Bush to lead a multinational endeavour to halt the ethnic cleansing. US Secretary of State Collin Powell did not mince his words when he asserted before Senate on 9 September 2004 that genocide was occurring in Darfur and he directed the blame at the Government and the Janjaweed. Although the US stance has been welcomed by human rights groups there are concerns that the words have not been accompanied by due action.
Whither the innocents?
As international parleys by elites continue the poor
in Darfur will still be raped, starved and killed by government-backed
thugs. The pain that these people feel, their helplessness before imminent
danger and despair will not be assured soon. International events in
Iraq and Asia (which are of no less importance) will divert the attention
of the international community from Darfur. If anything, this implies
that the onus for resolving the conflict in Darfur rests, not with the
EU or the US but squarely on the AU. There has been much talking. But
if the African Union is to respond accordingly to the requisites of
Article 4(h) of its founding Act thereby addressing Hilary Andersson’s
concerns in the opening of this write-up, continental regionalism would
have to be given another shot. Will the AU bask its abilities behind
the pretext of sovereignty or will it pick-up the cudgels and start
acting as the bulwark for the innocents in Darfur, Zimbabwe, the DRC,
Côte d’Ivoire...? Random regionalism whereby doors are flung
open to all is futile. A ‘coalition of hope’ must steer
the ship. Herbst and Gills(12) have argued for a model of deep integration
that would be exclusively led by a limited number of democracies. Such
a selective and ‘restrictive’ regionalism would have the
merit of serving as an incentive to more docile democracies.
Countries such as Algeria, Botswana, Kenya, Nigeria, Senegal and South Africa have recently demonstrated that the culture of genuine democracy is not alien to Africa. Such are the nations that should constitute the ‘coalition of hope’ for the continent.
The African Peer Review Mechanism is another tool that can be used to kick-start meaningful regionalism. However, given the embryonic nature of the initiative, it is appropriate to reserve comments as to the prospects for success.
International actors such as the EU, the US and the UN have a residual but indispensable role to play in maintaining peace and human security in Africa as a whole. It is in their interest. Some efforts have been made by these actors to resolve the conflict in Darfur. But these are dwarfed by the sheer magnitude of the needs and expectations on the ground. Darfur might have been shelved off the glare of international media as a result of the Asian crisis, the war in Iraq and the peace settlement signed between Khartoum and the SPLM/A. It should not.
(1) Hilary Andersson, “Sudan’s
cruel and Slow Starvation”, BBC Programme, ‘From Our Own
Correspondent’, 24 July 2004.
(2) Constitutive Act of the African Union, adopted on 11 July 2000. The AU formally replaced the Organisation of African Unity (OAU) in 2002.
(3) The region of Darfur is divided into three states or wilayas known as North Darfur, Western Darfur and Southern Darfur.
(4) Jean-Louis Peninou “Le Soudan Déchiré par Les Guerres Civiles” in LE MONDE DIPLOMATIQUE, pp16 and 17, May 2004.
(5) Human Rights Watch, “Additional Evidence of Government Working Hand in Glove with Janjaweed: They come together, they fight together and they leave together” in http://hrw.org/reports/2004/sudan0504/7.htm
(27 May 2004).
(6) Koert Lindijeu “Analysis: Reining in the Militia” , BBC News, 24 August 2004.
(7) Human Rights Watch, “ ‘Ethnic Cleansing’ in West Darfur” in Human Rights Watch, ibid. n. 5; A1exis Masciarelli and Ilona Eveleens, “Sudanese Tale of Mass Rape” in BBC News 10 June 2004.
(8) Human Rights Watch, “Too Little, Too Late: Sudanese and International Response” in http://hrw.org/reports/2004/sudan0504/8.htm (27 May 2004).
(9) BBC News, 12 November 2004.
(10) Human Rights Watch, ibid., n.8.
(11) EU Presidency Statement – “The Situation in Sudan”, 19 November 2004, Statement by H.E. Adriaan Kooijmans on the Situation in Sudan, Security Council (Nairobi) Ref : PRES04 – 325EN.
(12) Jeffrey Herbst and Greg Mills, “The Future of Africa: A New Order in Sight?” ADELPHI PAPER 361, IISS, pp 59-61 (2003).
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New IES Secretary
Laïla studied communications management (option
press and information) at the Business department of the Katholieke
Hogeschool Mechelen and will help Nele in the daily secretariat of the
IES. Laïla was one out of 20 people that responded to our vacancy.With
her energy and background, we are sure that she will be a valuable addition
to our team !!
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PILC visits ECJ
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