Chapter 7. Human Rights Obligations of International Actors
A. Human Rights Obligations in Peace-building Missions
2. Human Rights as Customary International Law
An international organisation has international legal personality distinct from that of its member states. As stated by the International Court of Justice in the
‘Reparations for Injuries’ case, “the Organization is an international person. Th at is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State.
[. . .] What it does mean is that it is a subject of international law and capable of
326 See for example, Stavrinides, Z., ‘Human Rights Obligations under the United Nations Charter’, 3 International Journal of Human Rights 38 (1999).
327 Cf. Irmscher, T. H., ‘Th e Legal Framework for the Activities of the United Nations Interim Administration Mission in Kosovo: Th e Charter, Human Rights, and the Law of Occupation’, 44 German Yearbook of International Law 353 (2001), p. 369 and Kolb, Porretto, and Vité, supra note 324, p. 259.
possessing international rights and duties”.328 An international organisation’s legal personality is not identical to that of a State, as it is limited by the organisation’s competences.329 Th e distinct legal personality of an international organisation, recognised in the Reparations case, has become a general principle of international law, and applies therefore also to other international organisations which are presumed to possess international legal personality.330 In addition, it is a well- established principle that international legal personality confers not only rights, but also, as a counterpart, the duty to respect international law,331 a principle which has equally been confi rmed by the International Court of Justice: “Inter- national Organisations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitution or under agreements to which they are parties.”332 It thus fl ows from the organisation’s status as a subject of international law as opined by the ICJ, that international organisations can be considered bound by customary international law or general international law.
At this stage, many internationally recognised human rights standards, such as on prolonged arbitrary detention, the prohibition of retroactive penal laws and the core due process guarantees, have without doubt attained customary status in international law.333 With regard to the Universal Declaration of Human Rights (UDHR),334 which is formally not a legally binding instrument, several authors have claimed that the overwhelming majority who voted in favour of it and the continuous affi rmation over the years transformed it – or at least
328 International Court of justice, ‘Reparation for injuries suff ered in the service of the United Nations’, supra note 199.
329 Ibid.
330 Bettati, M., ‘Création et personnalité juridique des organisations internationales’, in Dupuy, R.-J. (ed.), Manuel sur les organisations internationales – A Handbook on International Organi- zations (Dordrecht / Boston / London: Martinus Nijhoff Publishers, 1998), pp. 51–52.
331 Dupuy, supra note 217, p. 175.
332 International Court of justice, ‘Reparation for injuries suff ered in the service of the United Nations’, supra note 199, para. 90.
333 Cf. Meron, T., Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press, 1989), pp. 94–96; Cerone, J., ‘Reasonable Measures in Unreasonable Circumstances: a Legal Responsibility Framework for Human Rights Violations in Post-confl ict Territories under UN Administration’, in Blokker, N. M. and Schermers, H. (eds.), Proliferation of International Organizations – Legal Issues (Th e Hague / London / Boston: Kluwer Law International, 2001);
Th e American Law Institute, Restatement of the Law, Th ird, Foreign Relations Law of the United States, para. 702 (St. Paul: American Law Institute Publishers, 1987), and, for a com- mentary on the Restatement, Henkin, L., Restatement of the Foreign Relations Law of the United States (Revised): Tentative Draft No. 3, 76 (No. 3) American Journal of International Law 653 (1982).
334 GA Res. A/217 (III), ‘Universal Declaration of Human Rights’, UN Doc. A/RES/3/217 A (10 December 1948).
part of it – into customary international law.335 In addition, several ‘hardcore’
provisions of human rights law, among which are the prohibition of torture and inhumane or degrading treatment, the prohibition of racial discrimination and the prohibition of slavery, are generally considered jus cogens,336 identifi ed as such by the absence of permissible derogations from these rights.337 As far as these peremptory norms of international law are concerned, it is generally admitted they bind international organisations,338 insofar as the rule can be applied to the organisation.
One major problem arises when one applies human rights as customary norms to international organisations. Obviously, the defi ned customary rules of international human rights law are principally addressed to States, and have therefore become customary law because of state practice and the corresponding opinio juris of states. One way to tackle the issue is to consider the customary norms of human rights as customary law of the international organisation itself, and more specifi cally, in this case, the UN. Th is is however diffi cult to ascertain, especially with regard to UN-led international administrations, as the recent relevant practice is limited to the latest cases of Kosovo and East Timor. Th ese cases could perhaps be considered relevant practice for an emerging customary obligation. Previous experience339 in the administration of territory is insuffi cient to establish a customary legal obligation relative to the application of human
335 See in particular Hannum, H., ‘Th e Status of the Universal Declaration of Human Rights in National and International law’ 25 Georgia Journal of International & Comparative Law 287 (1995–1996), p. 322 and Tomuschat, C., Human Rights: Between Idealism and Realism Actors (Oxford: Oxford University Press, 2003), p. 4. See also Clapham, A., Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006), p. 86 and Franck, T., ‘Th e Emerg- ing Right to Democratic Governance’, 86 American Journal of International Law 46 (1992), p. 61.
336 See Kondoch, B., ‘Human Rights Law and Un Peace Operations in Post-Confl ict Situations’, in Blokker, N. M. and Schermers, H. (eds.), Proliferation of International Organizations – Legal Issues (Th e Hague / London / Boston: Kluwer Law International, 2001) and Dupuy, supra note 217, p. 175. See also International Court of Justice, ‘Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter)’, Advisory Opinion, 20 July 1962, 1962 ICJ Reports 151, para. 32.
337 See for example article 15, para. 12, ECHR.
338 Schermers, H., ‘Th e Legal Bases of International Organization Action’, in Dupuy, supra note 330, p. 402.
339 Previous practice can be found with regard to the proposed administrations of Trieste and Jerusalem, although these cases were never implemented. With regard to West Irian, human rights observance was mainly limited to the respect by the United Nations Temporary Executive Authority (UNTEA) of the rights the citizens enjoyed before the take-over of the administration.
UNTEA was however also requested to ensure inter alia the rights to freedom of expression and association. Th e UN administration in West Irian lasted only eight months.
rights to transitional administrations.340 Th e following approach seems more convincing. Several scholars have argued that once a norm has become custom- ary international law it applies to all subjects of international law, irrespective of their nature.341 Th e rights and obligations of an international organisation would thus be the consequence of the organisation’s ‘subjectivity’. Hence, international organisations, while not directly participating in the formation of custom, could be considered bound by customary law, including human rights law.
However, customary rules can of course only bind an international organisa- tion to the extent that these rules can be applied to the organisation. In order to establish the exact contents of the international organisation’s obligation, one has to go back to the specifi c international legal personality of international organisations, drawn from the aforementioned ‘Reparations’ case. While an international organisation’s rights under international law need to be inter- preted in function of its competences, the same is true with regard to its duties or obligations under international law. Th e possession of international legal personality does not imply that the organisation enjoys the same rights and duties as a State. Bearing in mind the abovementioned principles relating to an international organisation’s obligation to respect international law, we argue that an international organisation’s human rights obligations need to be examined in function of the activity performed. Th is approach equally has the advantage of being universal, in the sense that this obligation does not arise out of a ‘consti- tutional’ analysis of an international organisation’s constitutional treaty. Human rights are mainly intended to regulate the exercise of public authority. In the case of international administrations, an international organisation assumes direct responsibility for the administration of a territory, thus replacing the government of a State or territory in the exercise of public authority. When international administrations are entrusted with legislative and executive powers, they exercise competences which are usually a State’s exclusive prerogative. Th e same can be said when international organisations perform more limited administrative functions. Considering the nature of the performed activity, it therefore seems obvious, taking into account the competences exercised by the international
340 See also Kolb, Porretto, and Vité, supra note 324, p. 264.
341 Schermers, H., ‘Th e Legal Bases of International Organization Action’, in Dupuy, supra note 330, p. 402. See also Tomuschat, C., ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century: General Course on Public International Law, 281 Recueil des Cours de l’Académie de Droit International (2001), pp. 134–135. See also Buzzini, on the for- mation of what the author calls “droit objectif ”, which the author considers to be applicable
“à tous les sujets d’un ordre juridique, indépendamment de leur assentiment individuel à être soumis à ces règles.” (Buzzini, G., ‘La théorie des sources face au droit international général’, 106 Revue Générale de Droit International Public 582 (2002), p. 582).
organisation, to consider it bound by customary human rights standards as it performs administrative functions in place of a State.342
In practice, the international administrations in Kosovo and East Timor have both adopted regulations stating that human rights laws apply throughout the territory. However, in its 2006 report submitted to the Human Rights Com- mittee on the Human Rights in Kosovo, UNMIK explained that, while inter- national human rights treaties were a part of the applicable law, “this does not imply that these treaties and conventions are in any way binding on UNMIK.
It must be remembered throughout that the situation of Kosovo under interim administration by UNMIK is sui generis. Accordingly, it has been the consistent position of UNMIK that treaties and agreements, to which the State Union of Serbia and Montenegro is a party, are not automatically binding on UNMIK.
In each case, a specifi c determination as to the applicability of the principles and provisions must be made.”343 While it is not clear on what basis this asser- tion was made, it seems that reliance on the sui generis character of the mission is certainly insuffi cient considering the abovementioned doctrine. Nevertheless, the statement does not seem to exclude any application of human rights to the administration as a matter of customary law, as it only relates to international treaty law.