Interim Conclusions

Legal Framework ◽

Point Of View ◽

The Other ◽

Absolute Point ◽

Member States ◽

European Court ◽

Argumentative Strategy

This chapter summarizes the previous findings and exposes the false dichotomies that led to the proliferation of the different conceptualizations. It shows how the four conceptualizations can be applied to a legal dispute concerning the responsibility of an international organization. In particular, it discusses the Al-Dulimi case before the European Court of Human Rights. The circumstances of the case prompt the adoption of one or the other conceptualization on the basis of the argumentative strategy. The analysis highlights the difficulties in providing a general legal framework to establish the responsibility of international organizations and/or of their member states. The chapter is divided into two subsections, focusing on the admissibility and the merits of the Al-Dulimi case. It concludes that the adoption of an international legal framework applicable to all international organizations is subject to the possibility to rebut limited perspectives and to adopt an ‘absolute point of view’.

Responsibility of the United Nations for Wrongful Acts Occurred in the Framework of Authorized Operations in Light of the Draft Articles on the Responsibility of International Organizations (dario)

Max Planck Yearbook of United Nations Law Online ◽

10.1163/18757413-00180005 ◽

2014 ◽

Vol 18 (1) ◽

pp. 109-151

Author(s):

Frédérique Lozanorios

Keyword(s):

Human Rights ◽

International Law ◽

The Other ◽

European Court ◽

Chain Of Command ◽

The One ◽

International Law Commission ◽

Law Commission

When the Security Council authorizes a State or an international organization to use force, it entrusts it with authority over the chain of command of the operation. That is why the un has always declined to assume responsibility for conduct occurring in the context such operations. While this position is widely supported by practice, and by the 2011 Draft Articles on the Responsibility of International Organizations (dario) of the International Law Commission (ilc), certain cases brought before the European Court of Human Rights (ECtHR) such as Behrami/Saramati have challenged this principle. These cases had the merit of bringing to the fore uncertainties about the rules of responsibility applicable to complex schemes of peacekeeping. This study aims to address the question: in the light of the dario, to what extent could responsibility be attributed to the un for conduct occurred in the framework of authorized operations, and what kind of responsibility would that be? First, it argues that no basis can be found in the principles of independent responsibility to justify the attribution of wrongful conduct committed on the occasion of authorized operations to the un, unless in exceptional factual circumstances. Second, it contends that indirect responsibility could be an appropriate way to apprehend the specific relationships established between the un on the one hand and the operations it has authorized on the other hand.

Conclusion

The Concept of an International Organization in International Law ◽

10.1093/oso/9780192895790.003.0012 ◽

2021 ◽

pp. 208-210

Author(s):

Lorenzo Gasbarri

Keyword(s):

International Law ◽

Legal Framework ◽

Legal Systems ◽

Member States ◽

Legal Nature ◽

International Responsibility ◽

The Law

This chapter summarizes the main findings of the book. The concept of an international organization is defined by looking at the nature of the legal systems they develop. The notion of ‘dual legal nature’ describes how organizations create particular legal systems that derive from international law. This peculiar condition affects the law they produce, which is international and internal at the same time. The effects of the dual legal nature are discussed by analysing international responsibility, the law of treaties, and the validity of organizations’ acts. This conceptualization allows the development of a common legal framework applicable to all international organizations, despite their differences in terms of powers, membership, size, and other descriptive features. In particular, the most valuable consequence of this conceptualization is to rebut a frequent argumentative motif, under which organizations are either perceived as vehicles for member states’ interests or as autonomous entities.

7 Immunity, 7.10 Mothers of Srebrenica v The Netherlands and the UN , LJN: BW1999, Dutch Supreme Court, 13 April 2012 and Stichting Mothers of Srebrenica and Others against The Netherlands , App. No. 65542/12, European Court of Human Rights, 11 June 2013

10.1093/law/9780198743620.003.0049 ◽

2016 ◽

Cited By ~ 2

Author(s):

Momirov Aleksandar

Keyword(s):

Human Rights ◽

The Netherlands ◽

International Law ◽

Doctrinal Development ◽

European Court ◽

The One ◽

Right Of Access ◽

Dutch Supreme

Increasingly, domestic and regional courts have engaged in reinterpreting the international law on immunities. The two present decisions add to a broader jurisprudential development through which courts have started to question the scope of immunity enjoyed by international organizations—or rather the unconditionality thereof—as a response to human rights-based critique. Whether or not international organizations enjoy immunity before a domestic court should, according to this developing approach, depend on a balancing act between, on the one hand, the functional interests of the international organization and, on the other hand, the individuals’ right of access to court. The decisions discussed in this section illustrate this doctrinal development as well as the limits of this developing line of jurisprudence by confirming that the immunity of the UN, as a sui generis international organization, shall not be subjected to the aforementioned balancing act.

THE EUROPEAN COURT OF HUMAN RIGHTS’ APPROACH TO THE RESPONSIBILITY OF MEMBER STATES IN CONNECTION WITH ACTS OF INTERNATIONAL ORGANIZATIONS

International and Comparative Law Quarterly ◽

10.1017/s0020589311000467 ◽

2011 ◽

Vol 60 (4) ◽

pp. 997-1016 ◽

Cited By ~ 12

Author(s):

Cedric Ryngaert

Keyword(s):

Member State ◽

International Law ◽

General Rule ◽

Member States ◽

Legal Personality ◽

European Court ◽

Droit International ◽

International Legal Personality

It is generally considered that an international organization (‘IO’) has an international legal personality which is distinct from that of its Member States, as a result of which the IO itself, rather than the Member States, is to be held responsible for the IO's internationally wrongful acts.1 It appears to be an accepted principle that Member States cannot generally be held liable for the acts of IOs by virtue of their membership of an IO alone. This view can be found in a 1996 resolution of the Institut de Droit International, which provides that ‘there is no general rule of international law whereby States members are, due solely to their membership, liable, concurrently or subsidiarily, for the obligations of an international organization of which they are members.’2 This is echoed in the International Law Commission's (‘ILC’) Commentary to article 62 of the Draft Articles on the Responsibility of International Organizations (‘ILC DARIO’): ‘It is clear that … membership does not as such entail for member States international responsibility when the organization commits an internationally wrongful act’.3 The ILC holds the view that only in the case of an intervening act by a Member State that influences the commission of a wrongful act by the IO (aid and assistance, direction and control, coercion, avoidance of compliance, acceptance) could the Member State be held responsible.4

EFFECTIVE LIMITATIONS AND ILLUSORY RIGHTS: A COMMENT ON THE MOTHERS OF SREBRENICA DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS

The Italian Yearbook of International Law Online ◽

10.1163/22116133-90230047 ◽

2014 ◽

Vol 23 (1) ◽

pp. 269-286 ◽

Cited By ~ 1

Author(s):

Valentina Spiga

Keyword(s):

Human Rights ◽

Critical Review ◽

The Other ◽

Access To Justice ◽

European Court ◽

Alternative Means ◽

The One ◽

The Right ◽

Right Of Access

The latest attempt by the relatives of the victims of the Srebrenica massacre to hold the UN accountable for the inaction of UNPROFOR while the Bosnian enclave was attacked has once again proven unsuccessful. In a unanimous decision in the Stichting Mothers of Srebrenica and others v. the Netherlands case, the European Court of Human Rights declared the application to be ill-founded, finding that the decision of Dutch courts to grant immunity to the UN did not violate the applicants’ right of access to a court. An intrinsic tension between two contemporary trends seems to be embodied in this recent decision. On the one hand the decision follows established and authoritative practice according to which a civil claim cannot override immunity from jurisdiction even though no alternative means of redress is available. On the other hand it conflicts with the growing emphasis placed on the right of access to justice and the right to remedy for victims of gross violations of human rights in the last decade. This note aims to provide a critical review of the decision, focusing on the “alternative means of remedy” test in cases involving the immunity of international organizations. In doing so, the note questions whether such a test must always be a prerequisite for the effective enjoyment of the right of access to a court.

Human rights violation: Responsibility of international organizations or of their member states

Medjunarodni problemi ◽

10.2298/medjp1204507s ◽

2012 ◽

Vol 64 (4) ◽

pp. 507-527

Author(s):

Jelena Stojsic

Keyword(s):

Human Rights ◽

International System ◽

Member States ◽

Human Rights Protection ◽

Rights Protection ◽

Indirect Control ◽

European Court ◽

International Instruments ◽

Human Rights Violation

Although international organizations as subjects of international law are obliged to respect fundamental human rights in their acting, a very small number of them are contracting parties to international instruments for human rights protection, unlike their member states, which are contracting parties to many of them. As international organizations take more and more activities that can and often result in violation of human rights there is an obvious problem to what forum victims of those violations can turn to for determining responsibility of the international organization. The European Court of Human Rights and the European Court of Justice have developed through their practices modalities for indirect control of acts of international organizations by controlling the acts of their member states, which result from their duties as members of those organizations. The paper assumes that such control is efficient and that it fills the void in the international system of determining responsibility for violation of human rights through acts of international organizations according to which, the states basically keep on being responsible for violation of human rights.

7 Immunity, 7.4 Beer and Regan v Germany , App. No. 28934/95 and Waite and Kennedy v Germany , App. No. 26083/94, European Court of Human Rights, 18 February 1999

10.1093/law/9780198743620.003.0043 ◽

2016 ◽

Cited By ~ 4

Author(s):

Neumann Thore ◽

Peters Anne

Keyword(s):

Human Rights ◽

State Courts ◽

International Human Rights ◽

European Court ◽

Domestic Courts ◽

Alternative Means ◽

Judicial Proceedings ◽

Traditional Paradigm

The two decisions were the first in which an international human rights court commented on the conflict between immunities of international organizations before domestic courts and the human rights-based obligation of states to provide individuals with access to a court. The European Court of Human Rights reviewed the domestic court’s act of granting immunity to an international organization against art. 6(1) ECHR. It employed an ‘alternative means test’, i.e. it inquired whether the aggrieved party had means other than access to state courts at its disposal to pursue claims. In performing a human rights-review, the Court departed from the traditional paradigm of international organizations’ absolute immunity which would dispense international organizations under all possible circumstances from domestic judicial proceedings and enforcement. Since the rendering of the two judgments, the ‘alternative means’ test has become a key concept in the law of organizational immunities in Europe.

6 Responsibility, 6.3 Matthews v United Kingdom , ECtHR, App. No. 24833/94, 18 February 1999

10.1093/law/9780198743620.003.0031 ◽

2016 ◽

Cited By ~ 5

Author(s):

Barros Ana Sofia

Keyword(s):

Human Rights ◽

United Kingdom ◽

European Community ◽

Legal System ◽

European Convention ◽

State Responsibility ◽

European Court ◽

The Uk

In the present case, the European Court of Human Rights’ analysis drew on the terms in which the European Convention on Human Rights would apply following state adhesion to an international organization. In particular, the Court was called upon to decide on the responsibility of the UK for not having ensured that within the legal system of the then European Community, laws would not be passed that were incompatible with that state’s obligations under the Convention. Although the matter in dispute regarded issues of a purely institutional nature and character, the Court (still) approached it as one engaging state responsibility for its participation in the EC. In a quasi-dogmatic fashion, the Court ascertained that the Convention does not preclude states from transferring competences to international organizations, provided that the rights prescribed therein continue to be secured.

Reforming Property Law in Kosovo: A Clash of Legal Orders

European Review ◽

10.1017/s1062798715000307 ◽

2015 ◽

Vol 23 (4) ◽

pp. 566-582

Author(s):

Marco Roccia

Keyword(s):

Human Rights ◽

Property Rights ◽

Technical Assistance ◽

Legal Framework ◽

Property Law ◽

The European Union ◽

Strict Adherence ◽

European Court ◽

Human Rights Standards

The legal framework regulating property in Kosovo has been defined as ‘A jumble of laws, regulations, administrative instructions, court practices and directives combine to create a complicated and seemingly impenetrable system for determining contests over immovable property ownership in Kosovo. At the highest level, international human rights standards affect property rights…’1 As in other areas of legislation, laws addressing property issues derive from different periods in Kosovo’s history, that is to say the Yugoslav time, the so-called discriminatory period of the 1990s, UNMIK’s rule of the first decade of the 2000s and, finally, independent Kosovo. Laws are scattered through several legal texts, regulate different aspects of property rights, and often refer to institutions that no longer exist. This paper focuses on the specific issues affecting property law in Kosovo, a sector where international organizations and bilateral cooperation are massively intervening. While assessing legal acts in force and data collected on the field, the author argues how, for an effective reformation of the sector, a clear and coordinated strategy will have to be adopted by the two main donors which, in the next few years, will be launching several technical assistance contracts. Comparing European best practices with the proposed intervention suggested by the European Union and USAID will also give the chance to illustrate how a strict adherence to ECHR standards in the field of property, as the Constitution of Kosovo requires, will bring to light problems already seen in other European countries, that is to say a clash between domestic civil legislation on property, on the one hand, and the case-law of the European Court of Human Rights on Article 1 Protocol 1, on the other. The author will also notice that the tendency to adopt a too political approach, typical of international organizations and donors, in an area characterized by legal principles of a more technical nature, will be cause for additional confusion.

¿ES POSIBLE LA PROTECCIÓN INTERNACIONAL DE LOS DERECHOS DE LOS CONTRIBUYENTES?

SCIENTIARVM ◽

10.26696/sci.epg.0125 ◽

2015 ◽

Vol 1 (1) ◽

pp. 19-22

Author(s):

SILDA VALDEZ VELAZCO ◽

Keyword(s):

Human Rights ◽

Key Words ◽

European Convention ◽

International Treaties ◽

Key Words Human ◽

Member States ◽

European Court

ABSTRACT: In the present investigation, we seek to describe and establish how two international organizations such as the Inter-American Court of Human Rights and the European Court of Human Rights, precisely responsable for the protection of the human rights of the citizens of their member states, have managed to concretize the protection of the rights of taxpayers despite their poor regulation in international treaties base on those that impart justice. Thus, some of the cases in which there has been a ruling on tax issues are analyzed, the facts, the rights protected and how this protection has finally been materialized in specific cases. Key words: Human Rights, taxpayers, American Convention on Human Rights, European Convention on Human Rights, taxation.