Accountability for Human Rights Violations by International Organisations

Jan Wouters is Jean Monnet Chair, Professor of International Law and International Organisations and Director of the Leuven Centre for Global Governance Studies and Institute for International Law at the University of Leuven. Eva Brems is Professor of Human Rights Law and Non-Western Law at the University of Ghent. Stefaan Smis is Professor of International Dispute Settlement at the Vrije Universiteit Brussels and Reader in International Law at the University of Westminster. Pierre Schmitt is Research Fellow at the Leuven Centre for Global Governance Studies and Institute for International Law at the University of Leuven.

• Summary of Contents Abbreviations Accountability for Human Rights Violations by International Organisations: Introductory Remarks Jan Wouters, Eva Brems, Stefaan Smis and Pierre Schmitt I. Background II. Aim of the Book III. Contentious Legal Issue A. Are International Organisations Bound by International Human Rights Norms? B. Accountability of Member States of International Organisations C. Obstacles to Accountability of International Organisations D. The Need to Create Mechanisms To Ensure Accountability IV. Structure of the Book A. General Concepts B. Peace and Humanitarian Operations C. International Civil Administration D. Economic Governance E. Staff of International Organisations PART I. GENERAL CONCEPTS Accountability of International Organisations: An Evolving Legal Concept? Ige F. Dekker I. Introduction II. Concepts of Accountability A. Approaches to Accountability B. The ILA Concept of Accountability C. Critical Assessment III. An institutional Concept of Accountability A. An Institutional Approach Intersentia B. Accountability as a Legal Institution C. Accountability and the Institutional Character of International Organisations IV. Concluding Observation. International Organisations as Independent Actors: Sweet Memory or Functionally Necessary? Niels M. Blokker I. Introduction II. Attribution of Powers III. International Legal Personality IV. Th e Theory and Practice of the Independence of International Secretariats V. Concluding Remarks Human Rights and the Rise of International Organisations: The Logic of Sliding Scales in the Law of International Responsibility Olivier De Schutter I. The Human Rights Obligations of International Organisations A. The international Organisation 'Succeeding' to the Human Rights Obligations of Its Member States B. Human Rights as Part of General Public International Law II. The Problem of Accountability - One: State Responsibility A. The Establishment of the International Organisation and the Initial Transfer of Powers B. The Decision-Making Process Within the Organisation C. The Implementation of Decisions Adopted by International Organisations D. The Logic of Sliding Scales in Examining Questions of State Responsibility III. The Problem of Accountability - Two: The Responsibility of International Organisations A. Self-Regulation B. Accession to International Human Rights Treaties C. The Role of National Courts D. The Logic of Sliding Scales Expanded IV. Conclusion Binding International Organisations to Member State Treaties or Responsibility of Member States for Their Own Actions in the Framework of International Organisations Frederik Naert Introduction I. Are International Organisations Bound by Treaties Concluded by Their Member States? A. General Considerations B. The EU, GATT and Customs Agreements. C. The EU and the ECHR D. The EU and Other Member State Treaties, Including the UN Charter E. Other International Organisations II. Some Reflections on Responsibility of Member States for Their Own Actions in the Framework of International Organisations A. Responsibility for the Actions of an International Organisation Resulting from Its Establishment B. Responsibility of a Member State for Its Own Subsequent Conduct in the Framework of an International Organisation Conclusion The 'Italian job': How to Make International Organisations Compliant with Human Rights and Accountable for Their Violation by Targeting Member States Matteo Tondini I. Introduction II. A Few Remarks on Legal Personality and Accountability of International Organisations A. The Attribution of Legal Personality to International Organisations and Their Accountability to Third Parties B. The Establishment of Internal Claim Settlement Mechanisms C. 'Accountability' and 'Responsibility' D. The ILC Draft Articles III. Possible Responsibility of UN Member States in Peace Operations A. Possible Responsibility of Contributing States for Violations Committed by UN Military Forces B. Possible Responsibility of Member States for Violations Committed by UN Police Forces and Civilian Officers C. Possible Human Violations Committed by UN Territorial Administrations: The UNMIK Case Intersentia IV. Some Brief Remarks on International Organisations as Subjects Bound to Human Rights Law and Extraterritorial Application of Human Rights Treaties A. The Mandatory Nature of Human Rights Law for International Organisations B. The Extraterritorial Application of Human Rights Conventions V. The "Job": Bringing States to Courts A. Finding the Right Forum B. International Courts VI. The "Italian Job" in the Most Recent Case Law (Be Assured - Your Sins Will Find You Out!) A. The Behrami & Saramati Cases B. The Al-Jedda Case C. Other Relevant Cases VII. Concluding Remarks PART II. PEACE AND HUMANITARIAN OPERATIONS Human Rights Accountability of International Organisations in the Lead of International Peace Missions Ulf HauA ler I. Preliminary Remarks and Introduction II. The Institutionalisation of Transitional Authority - A Brief Typology of Peace Missions III. The Effects of Actions of Peacekeeping Operations on Human Rights A. Exercise of Transitional Authority vis-a-vis Ex- and Would-Be-Belligerents or Governance Institutions in Receiving States B. Exercise of Transitional Authority Directly Affecting the General Public C. Conclusion IV. Attribution of Conduct of Peacekeeping Operations to International Organisations A. To Whom to Attribute I: Peace Missions or Lead Organisations? . B. To Whom to Attribute II: Lead Organisations or Contributing States? C. Further Attribution Criteria D. Conclusion V. Defining the Limits of Transitional Authority of Peacekeeping Operations A. The Emerging Customary International Law of Peace Missions B. General Principles of International Humanitarian and Human Rights Law C. Conclusion VI. Balancing Public and Private Interests in the Framework of International Peacekeeping A. Self-Defence B. Military Necessity and Operational Necessity C. Claims D. Judicial Review of Operational Detention? VII. Conclusion Accountability of the United Nations: The Case of Srebrenica Peter R. Baehr I. Introduction II. What Happened at Srebrenica III. The Role of Dutchbat IV. The Role of the 'International Community' V. Accountability VI. Conclusion On the Social Life of International Organisations: Framing Accountability in Refugee Resettlement Kristin Bergtora Sandvik I. Introduction II. The Problem III. Framing Legal Humanitarianism IV. Contextualising Accountability V. Resettlement as Humanitarian Practice VI. Surviving Torture Credibly VII. Doing and Living Accountability Standards VIII. Concluding Observations PART III. INTERNATIONAL CIVIL ADMINISTRATION Understanding the International Territorial Administration Accountability Deficit: Trusteeship and the Legitimacy of International Organisations Ralph Wilde I. Introduction II. Trusteeship A. Colonial Trusteeship B. International Territorial Administration as a Form of Trusteeship C. The Progressive Internationalisation of Trusteeship III. Accountability under Trusteeship A. Humanising Colonialism B. Requirement of Accountability C. Accountability in the Trusteeship Context IV. Reviving the Trusteeship Council A. International Oversight of State-Conducted Trusteeship B. The Trusteeship Council and ITA V. Self-Determination as an Explanation for the Lack of Accountability A. The Repudiation of Trusteeship B. The Link with Accountability VI. The 'Legitimacy' of International Organisations as an Explanation for the Lack of Accountability A. Normative Ideas of State-Conducted Trusteeship B. Normative Ideas of International Organisations VII. Conclusion Human Rights Accountability of International Administrations: Theory and Practice in East Timor Eric De Brabandere I. Introduction II. Human Rights Obligations of International Organisations A. The UN Charter B. Human Rights as Customary International Law C. Human Rights and Military Contingents D. Observations on the Attribution of Conduct III. Immunity and Accountability Mechanisms in East Timor A. UNTAET's Human Rights Obligations B. Immunity of International Actors C. Alternative Accountability Mechanisms IV. Conclusion Should the United Nations Create an Independent Human Rights Body in a Transitional Administration? The Case of the United Nations Interim Administration Mission in Kosovo (UNMIK) Remzije Istrefi I. Introduction II. UNMIK's Mandate as a Cause of Human Rights Violations III. The Applicable Law in Kosovo and UNMIK Accountability IV. UNMIK Accountability at the Domestic level A. Judicial Review B. Ombudsperson Institution in Kosovo V. UNMIK's Accountability at the International Level A. Is the Advisory Panel an Adequate Mechanism to Deal with Alleged Human Rights Violations in Kosovo? B. Creation of a Human Rights Protection Mechanism: A Sui Generis Body for Kosovo C. The Authority for Establishing the UN Commission for Kosovo D. The Mandate and Structure of the UN Commission for Kosovo E. Composition of the UN Commission for Kosovo F. Procedural Rules of the UN Commission for Kosovo. G. Jurisdiction of the UN Commission for Kosovo H. UNMIK's Accountability in Front of the UN Commission for Kosovo VI. Conclusion The Ombudsperson Institution vs the United Nations Interim Administration Mission in Kosovo (UNMIK) Gjylbehare Bella Murati I. Introduction II. The United Nations Mission in Kosovo A. The Legal Framework Governing the UNMIK B. The Legal Implications Arising from UN SC Resolution 1244 C. The United Nations Domestic Lawmaking D. UNMIK and Its Role in the Judiciary III. The Ombudsperson Institution A. Protecting Residential Property (Housing and Property Directorate and Housing and Property Claims Commission) B. Protecting the Right to Liberty and Security of Person C. Protecting Freedom of Expression IV. Conclusion PART IV. ECONOMIC GOVERNANCE Accountability of International Organisations: An Analysis of the World Bank's Inspection Panel Rekha Oleschak-Pillai I. Accountability in International Law A. Accountability of International Organisations B. Who is Accountable? C. For What? D. To Whom? E. By What Mechanisms? F. With What Outcomes? II. World Bank and Human Rights Violations III. Inspection Panel A. Perceptions in International Legal Discourse B. Operational Standards and Policies IV. Investigations by the Inspection Panel A. India Ecodevelopment Project (1998) B. NTPC Project (1997) C. Coal India Project (2001) D. Mumbai Urban Transport Project (2004) V. Outcomes and Concluding Remarks The Accountability of the International Monetary Fund for Human Rights Violations Pierre Schmitt I. The Sources of the International Human Rights Obligations of the IMF II. The Significance of the Human Rights Obligations of the IMF A. The Mandate of the IMF B. The Practice of the IMF C. Evolution of the Mandate and the Practice of the IMF III. Mechanisms of Accountability A. Accountability: Probably the Weakest Aspect of IMF Governance B. Internal Accountability Mechanism C. External Accountability Mechanisms IV. Conclusion The World Trade Organization: An Obstacle to Enforcing Human Rights Obligations? Jeroen Denkers and Nicola Jagers I. Introduction II. An Example: Brazil III. The Permissibility of Import Bans on Sugar and Steel from Brazil under WTO Law A. Article XI of the GATT B. Article I of the GATT C. Article III:4 of the GATT IV. WTO Dispute Settlement and Human Rights V. Import Bans as Countermeasure VI. Legal Standing VII. Does the Prohibition of Forced Labour Entail an Obligation Erga Omnes? VIII. Can General International Law Serve as an Autonomous Defence in WTO Dispute Settlement? IX. Conclusion TRIPs and Human Rights: Access to Cheaper AIDS Medicines Stefaan Smis, Stephen Sevidzem Kingah and Christine Janssens I. Introduction II. The Development of Intellectual Property Protection III. The Rights to Access AIDS Medicines, TRIPs and Patent Rationale IV. Balancing Intellectual Property Rights and Right to Health V. Accountability Mechanisms VI. Conclusion Accountability of Development Agencies through the Use of Human Rights Indicators Gauthier de Beco I. Introduction II. The Accountability of Development Agencies for Their Human Rights Obligations A. The Human Rights Obligations of Development Agencies B. Monitoring Mechanisms for Development Agencies III. Human Rights Indicators to Monitor Development Programmes A. Developing Human Rights Indicators B. Data on Human Rights Violations C. Structural, Process and Outcome Indicators IV. The Use of Human Rights Indicators in Development Programming A. Establishing Human Rights Indicators for Development Programmes B. Actors using Human Rights Indicators for Development Programmes V. Conclusion PART V. STAFF OF INTERNATIONAL ORGANISATIONS Accountability of International Organisations for Violations of the Human Rights of Staff Chittharanjan Felix Amerasinghe I. International Organisations and the Substantive Law of Human Rights II. Accountability A. Desirability of Judicial Machinery B. Judicial Machinery: A Human Right C. Authority to Establish Courts III. Independence of Judicial Organs A. Qualifications B. Emoluments C. Renewals of Terms of Appointment IV. Human Rights Recognised by International Administrative Tribunals A. Discrimination Based on Sex B. Due Process of Law V. Conclusion Human Rights Accountability of International Organisations vis-a-vis Their Staff : The United Nations Sarah Hunt Introduction I. The History of Diplomatic Immunity: How Did It Become Professionalised? II. An Internal Recognition of Failings of the UN Legal System III. Applicability of Human Rights Principles and International Law: General Understanding vs Practice in the Field of the Law of the International Civil Service IV. The Potential Application of Public International Law to International Organisations A. What Substantive Legal Standards Apply to the Rights and Entitlements of International Organisation Staff Members? B. These and Many Other Employees Rights are Guaranteed in Various ILO Conventions, in Most National Legal Systems and in European Union Laws C. A Relevant and Related Question is the Extent to Which International Law or Fundamental Concepts such as Due Process, Are Applicable V. Internal Claims Involve Appeals Against Administrative Decisions Relating to Discipline of Staff or Grievances, Involving Other Staff or Management VI. The UN Redesign Panel Report Conclusion Workplace Equality in International Organisations: Why is It an Illusory Concept? Osmat Azzam Jefferson I.Introduction II.II. Equality and Discrimination Concepts in International Organisations III. Mapping the Core Rules in the Ensemble of Employment Conditions A. The Contract with the Organisation B. What Are the Statutory Elements? C. The Right of Recourse to an Administrative Court IV. How Are the Core Rules Used and What is Their Impact on Staff ? A. Effect on Junior Staff B. Effect on Selected Groups of Staff V. What Core Elements are Needed to Realise Equality? A. The Unilateral Right of the Organisation to Amend Statutory Elements B. Ambiguous and Unclear Broad Provisions of Anti-Discrimination Laws VI. Informal Remedies and Administrative Courts A. Accountability Standards and Their Enforcement B. Can These Legal Discrepancies be Challenged and Changed? VII. Personal View An International Organisation's Point of View Edward Kwakwa. I. Introduction II. Human Rights Obligations of International Organisations III. Human Rights Obligations of International Organisations vis-a-vis Their Staff Members. IV. Conclusion List of Contributors Table of Cases Index