1907 Hague Convention; Nigeria: briefing

Meeting report

FOREIGN AFFAIRS COMMITTEE
12 May 1998
1907 HAGUE CONVENTION; NIGERIA: BRIEFING

Documents handed out:
Briefing to Portfolio Committees concerning South African accession to the 1907 Hague Convention for the Pacific Settlement of International Disputes

SUMMARY
The meeting considered two topics:
The Hague Convention for the pacific settlement of international disputes was introduced by Ministry of Foreign Affairs and discussed by the committee. The Convention was submitted unanimously to parliament for approval
The committee was briefed by the High Commissioner of Nigeria to South Africa who elucidated Nigeria’s current political situation. The interpretation of Nigeria’s state of affairs as one of democratisation appeared rather difficult to the Committee members.

MINUTES
Part I: South African accession to the 1907 Hague convention for the pacific settlement of international disputes
Mr Sternet from the Ministry of Foreign Affairs introduced the Hague Conventions of 1899 and 1907 and explained their historical background. The aim of both conventions was to establish a forum and rules and procedures for the early settlement of international disputes and in a manner fair and just to the parties involved. A permanent Court of Arbitration (PCA) was established in the Hague "with the aim of facilitating an immediate recourse to arbitrate for international differences which it had not been possible to settle by diplomacy". (Article 41 of the 1907 convention). However, Mr Sternet pointed out, it is not a court but consists of the machinery to set up tribunals. Through accession by Great Britain, South Africa became a party to the 1899 convention. In 1978 the South African government stated implicitly that it was no longer bound by the 1899 convention.
The Hague system of settlement of disputes can and does play an important role in the settlement of disputes between states in a peaceful manner and has subsequently been extended to include disputes where only one party is a state and the other a non-state entity like a non-governmental organisation or a commercial enterprise.

The PCA offers a range of dispute settlement modes (arbitration, good offices, mediation, commissions of inquiry and conciliation), the freedom of parties to a dispute to choose the applicable rules of procedure as well as the facilities for selecting persons for appointment as members of tribunals and commissions.

If South Africa wants to sign the convention it needs approval of both houses (section 231 (2) of the constitution) and then should notify its intention to the Government of the Netherlands. The convention would then take effect sixty days after receipt of the Instrument of Accession by the Government of the Netherlands.
Mr Sternet stated that accession to the convention will, apart from the access that it offers to the dispute settlement procedures, offer South Africa the opportunity to strengthen its role in the international legal order. South Africa will be enabled to participate in policy-making in the Administrative Council and also in discussions on the possible revision of the 1907 Hague convention, and have access to the facilities and staff of the International Bureau. In addition, an influential position for the election of judges of the International Court of Justice is offered. The financial commitment will amount to South Africa to about US $ 5000 per year.

Questions from committee members:
Has the PAC solved any major international disputes?
What costs are involved in making use of the system of settlement of disputes?
How many states have signed it?
Has accession to the convention ever been denied to states?

Answers by Mr Sternet:
The PAC has been made use of quite often especially by European and Asian states before the establishment of the International Court of Justice. Recent examples are cases between Iran vs USA, USA vs UK, Namibia vs Botswana and Ghana vs a salt company.

There are 76 states who have signed the convention. Cases where accession has been denied to states which applied for accession are unknown. The court is tribunal with both parties agreeing to take I to the PAC, settlement is chiefly based on consensus and mediation. In the past it has solved commercial issues rather than major interstate conflicts. It mainly offers a cost effective way to settle disputes and is an international accepted body. The Dutch government is eager to see South African accession to the convention.

Part II: Briefing by the High Commissioner of Nigeria to South Africa
Mr Malami, High Commissioner of Nigeria to South Africa, presented the current state of affairs in his country. He denied the rumour that the upcoming elections had been cancelled. The political transition had been entrusted to an independent body, he stated, which comprised a reconciliation committee, a committee of federal affairs and a distribution committee. Presidential elections will be held on 1 August 1998. Elections of the governors of the Nigerian states were already to have taken place, but have been postponed on the demand of the political parties who wished to have the governors’ elections after the presidential election. It has been decided that the governors’ elections are to be held on the same day as the presidential elections.

Mr Malami maintained that after the calamitous experiences of party politics which are based on ethnicity and religion, a law had been passed to avoid the establishment of such parties in the future. By this law, party officials have to prove their origin from different parts of Nigeria; for example if the spokesman comes from one region, the secretary has to come from another etc. Today there are five parties which meet the above requirement, these are the only official parties. It is also only these five parties which have the power to nominate a candidate for the presidential election. So far, only Mr Abacha has been nominated.

The committee member raised various questions and issues of concern. First it was stated that any critical comments were not raised against the Nigerian people or Mr Malami himself, but against the government of Nigeria. Some said the democratisation process seemed flawed to them. It appeared to exclude key players, for example Mr Abiola, presumed winner of the 1993 election and who is held in arbitrary detention by General Abacha. Furthermore it continued to be a system of extreme oppression. They questioned why only one candidate had been nominated for the presidential election so far and expressed their view that it seemed that the reason was that any political activity in Nigeria was suicidal. Furthermore they questioned the way in which the boundaries of states and the powers of the governors had been set up. The committee members were moreover concerned about the state of human rights. The committee members expressed their wish to see more democratisational effort in Nigeria.

Mr Malami promised to report this to his government.


Annexure 1:
BRIEFING TO PORTFOLIO COMMITTEES CONCERNING SOUTH AFRICAN ACCESSION TO THE 1907 HAGUE CONVENTION FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES

Parliament, Cape Town
12 May1998

Introduction:
I welcome this opportunity today to discuss with you the possible accession by the republic to the 1907 Hague Convention on the Pacific Settlement of International Disputes. The Hague system of settlement of disputes, despite now dating back almost a century, can and does play an important role in the settlement of disputes between states in a peaceful manner. However, the dispute settlement procedures have subsequently also been extended to include disputes where only one party is a state and the other a non-state entity, like an inter-governmental organisation or a commercial enterprise.

Historical background:
The Hague system for the settlement of disputes dates back to the previous century. The Hague Conventions of 1899 and 1907 respectively constitute the first attempt to codify international law relating to arbitration and to establishing a functional structure in this regard.

Arbitration in international law denotes the same procedure as in domestic law:
the referral of a dispute to arbitrators freely chosen by the parties, to make an award in a dispute between such parties. It is now practice that parties agree on the law, rules and principles to be applied during arbitration. It is therefore common in modern treaties between nations that special provision is made that any disputes relating to the interpretation or application of the treaty be referred to arbitration. Arbitration therefore constitutes a quicker and cheaper way of settling disputes than that offered by judicial institutions, like the International Court of Justice.

The first Convention for the Pacific Settlement of International Disputes was adopted at the First Hague Peace Conference of 1899. The text was revised at the 1907 Hague Peace Conference. The aim of both these conventions was to establish a forum and rules and procedures for the early settlement of international disputes and in a manner fair and just to the parties involved. A Permanent Court of Arbitration (PCA) was established in the 1899 Convention, and also in the 1907 Convention, as it was the idea that the 1907 Convention would supersede the 1899 Convention. As a few states that acceded to the 1899 Convention did not accede to the 1907 Convention, the 1899 Convention effectively remained in force.

South Africa, through accession by Great Britain, became a party to the 1899 Convention. As Great Britain did not accede to the 1907 Convention, South Africa did not become a party to this Convention. Following an enquiry by the Dutch Embassy regarding which of the Hague Conventions the South African Government still considered itself bound to, the Dutch Embassy was informed on 8 March 1978 that South Africa considered itself bound to a number of declarations and conventions adopted at the 1899 Peace Conference. As the Convention for the Pacific Settlement of Disputes was not among them, it follows that South Africa is no longer bound by the 1899 Convention.

Composition of the PCA:
The Permanent Court of Arbitration was established in terms of the respective conventions "with the object of facilitating an immediate recourse to arbitrate for international differences which it had not been possible to settle by diplomacy" (Article 41 of the 1907 Convention). Despite its name, it is not a court but consists of the machinery to set up tribunals. It sits in The Hague. It consists of an International Bureau and an Administrative Council. The International Bureau, headed by a Secretary-General and staffed by personnel of the Dutch Foreign Ministry, is the administrative organ of the PCA. The Administrative Council is composed of the diplomatic representatives of the Contracting Powers accredited to The Hague. Its function is to guide the policy of the PCA.

Each Contracting Party can nominate four persons, of known competency in questions of international law and of the highest moral reputation, to serve as arbitrators for a term of six years. A list of all nominated arbitrators are then compiled and from this list Contracting Parties wishing to have recourse to the PCA for the settlement of a dispute, can select arbitrators in terms of specific procedures. The arbitrators enjoy diplomatic immunities and privileges outside their own countries in the exercise of their duties, to ensure unimpeded performance of their functions.

Functions of the PCA:
The PCA serves as a body to arbitrate in disputes between Signatory Powers, while provision is made that its jurisdiction can, under the conditions laid down in its Regulations, be extended to disputes between Signatory Powers and Non-Signatory Powers and disputes between Non-Signatory Powers, if the parties agree on recourse to the PCA. In 1962 the PCA was authorised to also place its premises and organisation at the disposal of the parties in cases where only one party to the dispute is a state. In such a case, the parties can have recourse to either arbitration or reconciliation. In practice non-state parties making use of
these procedures are commercial enterprises and inter-governmental organisations.

The 1907 Convention further makes provision for the International Bureau to assist in the setting up of International Commissions of Inquiry in cases of factual disputes between Signatory Powers. The 1907 Convention also directs Signatory Powers in cases of disputes to have recourse to the good offices of or to mediation by friendly powers.

Accession to the 1907 Convention does not result in the mandatory submission of disputes by a Signatory Power.

The Secretary-General has also been authorised by the 1976 United Nations Commission on International Trade Law (UNCITRAL) to designate, upon the request of a party to a dispute to be settled in terms of UNCITRAL rules, an appointing authority" for the purpose of appointing members of an arbitration tribunal, in cases where the parties fail to agree or a party refuses to make an appointment. The Secretary-General's assistance in this regard has been sought in cases of disputes between states and commercial enterprises as well as in cases where both parties were commercial enterprises.

To summarise, the PCA offers to Signatory States and commercial enterprises from those states a range of dispute settlement modes (arbitration, good offices, mediation, commissions of inquiry and conciliation), the freedom to parties to a dispute to choose the applicable rules of procedure as well as the facilities for selecting persons for appointment as members of tribunals and commissions.

South Africa's Accession:
States wishing to accede to the Convention, should notify their intention to the
Government of the Netherlands, the Depository State of the Convention, by
forwarding to it an Instrument of Accession (Example attached as Annexure A).
The Convention will take effect sixty days after receipt of the Instrument of
Accession by the Government of the Netherlands.

Section 231(2) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) provides that an international agreement will only bind the Republic after it has been approved by resolution in both the National Assembly and the National Council of Provinces. Section 231(3) creates some exceptions to this requirement for certain classes of international agreements. These exceptions to the Article 231(2) procedure include agreements not requiring accession or ratification. As the 1907 Convention requires accession, it follows that it will only be binding on the Republic after it has been approved by resolution in both Houses of Parliament.
At its meeting of 20 August 1997 Cabinet approved that South Africa accede to the 1907 Convention, that approval for accession be obtained from Parliament and that an Instrument of Accession signed by the Minister of Foreign Affairs be delivered to the Government of the Netherlands.

Accession to the Convention will, apart from the access that it offers to the dispute-settlement procedures offered by the Permanent Court of Arbitration, offer South Africa the opportunity to strengthen its role in the international legal order. South Africa will accede to an institution that contributes to the respect for the rule of law among states. It will also be enabled to participate in policymaking in the Administrative Council and also in discussions on the possible revision of the 1907 Hague Convention, and have access to the facilities and staff of the International Bureau. Furthermore, an influential position for the election of judges of the International Court of Justice (ICJ) is offered: in terms of Article 4 of the Statute of the ICJ, its judges are elected by the General Assembly and Security Council of the United Nations from a list of person nominated by the national groups in the PCA, a State's national group being composed of persons selected by it to serve as arbitrators.

Financial Commitment:
The financial commitment undertaken by States acceding to the 1907 Hague Convention is minimal. Expenses are borne by the Contracting Parties in the proportion fixed for the International Bureau of the Universal Postal Union. For the PSA it will amount to about $5000 per annum.

Conclusion:
The 1907 Hague Convention for the Pacific Settlement of International Disputes is herewith submitted to Parliament for approval.

Anti-Personnel Mines Convention
EXPLANATORY MEMORANDUM CONCERNING THE CONVENTION ON THE PROHIBITION OF THE USE, STOCKPILING, PRODUCTION AND TRANSFER OF ANTI-PERSONNEL MINES AND ON THEIR DESTRUCTION

A. Cabinet approval memo ref CAB/ADG183 dated 27 November 1997
B Presidential Minute dated 27 November 1997
C. Approval from the Chief State Law Adviser International Law dated 10 November 1997
D. Approval from the Department of Justice dated 23 October 1997
E. Approval from the Office of the Secretary of Defence dated 3 November 1997
F. Copy of the Convention

The Minister of Foreign Affairs, Mr Alfred Nzo, was among the first three dignitaries to sign the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, in Ottawa, Canada on 3 December 1997.

The South African Cabinet decided on 19 February 1997 to prohibit the use, development, production and stockpiling of anti-personnel mines with immediate effect. The South African Cabinet further decided that South Africa's existing stockpile of anti-personnel mines would be destroyed as soon as possible. Cabinet also reaffirmed South Africa' support of efforts to achieve an international prohibition on anti -personnel mines.

The Oslo Diplomatic Conference on an International Total Ban on Anti-Personnel Landmines was held from 1-18 September 1997 in Oslo, Norway with the objective to negotiate a Convention banning anti-personnel mines. The Conference was chaired by Ambassador JS Selebi, South Africa's Permanent Representative to the United Nations in Geneva.

On 18 September 1997 the Conference adopted the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction.

The Convention sets a new norm in international humanitarian law where a weapon of war has been banned due to its indiscriminate effects and the superfluous injury it causes to civilians. The Convention places an obligation ~n States Parties to, without exceptions or reservations, ban anti-personnel mines and ensure their destruction. The Convention was opened for signature on 3 December 1997 in Ottawa, Canada, and will enter into force after 40 instruments of ratification or accession have been deposited with the Depository

The Conference was the result of an initiative started by Canada in October 1996 to build momentum towards the earliest possible conclusion of a legally-binding international agreement to ban anti-personnel mines. This initiative was borne out of recognition that the extreme humanitarian and socioeconomic costs associated with the use of these mines requires urgent action on the part of the international community to ban and eliminate this scourge to society This initiative has come to be known as the Ottawa Process which has as its main objective a fast track process to concluding a anti-personnel mine ban

Chronology of South Africa's policy on landmines
1993 -
No coherent government policy to address the problems caused by landmines.

1994 -
Moratorium on the marketing, export and transit of all types of landmines.

1995 -
Accession to the Certain Conventional Weapons Convention (CCW) on 13 September 1995. Amongst others, this Convention restricts the use of landmines.

1996 -
Ban on the export of all types of landmines and the suspension of the operational use of antipersonnel landmines. Support the Canadian initiative to ensure "the earliest possible conclusion of a legally binding international agreement to ban anti-personnel landmines."

1997 -
19 February, Cabinet approved the prohibition on the use, development, production and stockpiling of anti-personnel landmines. Destruction of stockpiled anti-personnel landmines commences.

1997 -
19 November 1997 Cabinet approved for South Africa to sign the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction;

Chronology of international campaign by States to restrict the use and ban anti-personnel landmines

1994 -
United Nations resolution calling on States to adopt a moratorium on the export of anti-personnel and mine 5

1995 -
Review Conference of the Certain Convention Weapons Convention (CCW)

1996 -
Adoption of revised Protocol II of CCW which deals with landmines.
Canada launches initiative to ban antipersonnel landmines.
United Nations adopts resolution on an agreement to ban such landmines

1997 -
Various regional initiatives, including an OAU meeting, in support of a global ban on anti-personnel landmines.

Experts meet in Vienna to provide inputs into what has become known as the Austrian draft text which will be the basis for negotiation in Oslo.

Brussels meeting in June on landmines and the adoption of the Brussels Declaration.

18 September 1997 the Oslo Diplomatic Conference adopts the "Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction".

Signing ceremony in Ottawa on 3-4 December 1997.

Conventional Weapons Convention: briefing
EXPLANATORY MEMORANDUM CONCERNING SOUTH AFRICA'S INTENT TO BE BOUND BY THE AMENDED PROTOCOL II AND A NEW PROTOCOL IV OF THE CONVENTION ON PROHIBITION OR RESTRICTIONS ON THE USE OF CERTAIN CONVENTIONAL WEAPONS WHICH MAY BE DEEMED TO BE EXCESSIVELY INJURIOUS OR TO HAVE INDISCRIMINATE EFFECTS (CCW)

A. Approval from the Chief State Law Adviser International Law dated 22 August 1997
B. Approval from the Department of Justice dated 24 July 1997
C. Approval from the Office of the Secretary of Defence dated 3 November 1997
D. Copy of the 1980 Convention on Prohibitions or Restrictions on the Use of Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects (CCW)
E. The Amended Protocol II (restrictions on the use of mines, booby traps and other devices)
F. The new Protocol IV (Blinding Laser Weapons)

On 31 August 1994 Cabinet approved that South Africa should become a State Party to the Convention on Prohibitions or Restrictions on the Use of Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects (CCW)

South Africa acceded to the CCW on 13 September 1995 and became a State Party to the Convention on 13 March 1996.

This decision was based, inter alia, on South Africa's commitment to a general policy of non-proliferation and arms control. It also demonstrated South Africa's willingness to pay its highest regard to international humanitarian law, on which this Convention is based.

This Convention, which was concluded in 1980 in Geneva, was opened for signature by all Member States of the United Nations for a period of twelve months from 10 April 1981. It came into force on 2 December 1983 and, has been ratified by 66 countries thus far.

The Convention includes the Treaty and four Protocols entitled respectively

- Protocol on Non-detectable Fragments (I)

- Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-traps and Other Devises (II) (Protocol II as amended and adopted on 3 May 1996 still has to enter
into force, which will take place after 20 High Contracting Parties have ratified the amended Protocol)

- Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (III)

- Protocol on Blinding Laser Weapons (IV) (Adopted at the CCW Review Conference in Vienna on 13 October 1995 but still has to enter into force)

The objective of the Convention is to prohibit or restrict the use of the above-mentioned weapons Protocol II is the most substantive of the four Protocols to the Convention and deals mainly with landmines. On 22 December 1993 States Parties to the CCW requested the United Nations Secretary General, as the Depository of the Convention, to convene a review conference of the Convention with the aim of strengthening its prohibitions on certain types of conventional weapons including landmines and booby-traps (Protocol II) and to consider a new protocol on blinding laser weapons

The need for reviewing was prompted inter alia; because only a limited number of states have ratified/acceded to the CCW thereby limiting its universality, it does not apply to internal conflicts, no clear responsibility to remove landmines after a conflict, no prohibition on the use of non-detectable landmines, weak provisions for the use of remotely delivered landmines and no effective mechanism to ensure the implementation of the CCW.

Review Conferences
A Review Conference of the CCW, which took place in Vienna from 25 September 1995 - 13 October 1995 ended with the adoption of a new Protocol IV on Blinding Laser Weapons but failed to reach agreement on a revised Protocol II on the use of landmines. It was consequently decided to suspend the Conference and to hold resumed sessions in Geneva from 15 - 19 January 1996 and 22 April 1996 - 3 May l996. South Africa attended the first two sessions of the Review Conference as an observer and the final session in April/May 1996 as a State Party.

On 3 May 1996 Protocol II as amended was finally adopted. The following elements represent some of the most significant improvements of Protocol II

-The scope of the protocol has been extended to include conflicts of a non-international character, a significant improvement given that most landmines are used in internal conflicts.
-The general humanitarian restrictions in Article 3 are stronger, requiring greater discrimination between civilian and military objectives, prohibiting anti-sensing devices, and requiring advance warning of mines, booby-traps and other devices
- The use of non-detectable landmines has been prohibited (subject to an optional deferral period of nine years from entry into force)
- The use of manually emplaced anti-personnel landmines is further restricted, requiring their use only in fenced and marked areas.
- The restrictions on the use of remotely-delivered landmines have been strengthened, with a mandatory recording requirement.
- Certain prohibitions and restrictions on the transfer of landmines have been introduced.
- Broader obligations to protect peace-keeping and other UN and humanitarian missions have been imposed on parties to a conflict.
- A lengthy article has been introduced on technological cooperation and assistance (the first such article in an international humanitarian law instrument)
- Annual meetings of High Contracting Parties will take place.
- An article has been introduced requiring infringements of the Protocol to be punished under national criminal law.

South Africa joined three interpretive statements on articles of the revised Protocol:

Article 1:
"It is understood that the provisions of the protocol shall, as the context requires, be observed at all times". (statement delivered by Belgium on behalf of a group of countries)

Article 2(3):
Germany made a statement on the word 'primarily' in the definition of an anti-personnel mine, in which it was stated that the word 'primarily' was understood to distinguish an APL from an anti-tank mine with an anti-handling device. (The exact wording will be provided later - the statement was considered necessary because the use of the word 'primarily' could exclude new 'hybrid' mines from the definition of an APL)

Article 5(2) (b)
"It is understood that Article 5(2) (b) does not preclude agreement among the states concerned, in connection with peace treaties or similar arrangements, to allocate responsibilities under this paragraph in another manner which nevertheless respects the essential spirit and purpose of the Article" (statement by Australia on behalf of several countries, considered necessary since in terms of the scope of the Protocol, Article 5 is valid only during periods of armed conflict)

With the South African Cabinet decision on 19 February 1997 to prohibit the use, development, production and stockpiling of anti-personnel landmines with immediate effect, as well as to destroy the country's existing stockpile, South Africa has moved beyond the objective of the CCW's amended Protocol II. However, as Protocol II deals not only with
anti-personnel landmines but also with anti-tank mines, booby-traps and other devices it is important to adhere to the provisions of the amended Protocol II.

The new Protocol IV
Sweden submitted a proposal at the October 1995 Review Conference for a protocol on blinding laser weapons. Light Amplification by Stimulated Emission of Radiation (LASER) was first demonstrated as practicably feasible in 1958. Since then laser technology has made dramatic advances and laser devices are now used in a wide variety of civilian and mi1itary applications.

Military lasers can be loosely grouped into three categories: targeting and range-finding lasers, antimateriel lasers and anti-personnel lasers. It is the third category of military lasers that are solely designed to cause blindness to the opponent. This should be distinguished from incidental or accidental blinding effects of other laser systems

The anti-personnel lasers can be divided into two sub-categories:

(a) "Dazzle" or flash-blinding lasers are used to cause temporary blindness in an opponent. These devices are not targeted at individual military personnel in the field, but rather at the operators of aircraft or tanks.
(b) Systems designed with the intention to cause permanent blindness. These type of weapons are intended to be used against infantry and comparable categories of personnel.

The new Protocol IV on Blinding Laser Weapons was adopted at the CCW Review Conference in Vienna on 13 October 1995 This new Protocol IV places a prohibition on the use of such blinding laser weapons which is designed to cause blindness. However, blinding as an incidental effect of the legitimate use of laser beams (laser range finders) on the battlefield is excluded