International Organizations’ Obligations under Human Rights and International Humanitarian Law

Humanitarian Law ◽

Legal Personality ◽

Peremptory Norms ◽

The chapter considers in what circumstances international organizations have international legal personality and what results from such personality. It also considers whether international legal personality gives rise to rights and obligations and which ones. Central to this analysis, the chapter studies whether an international organization may have human rights and international humanitarian law obligations and whether these derive from its international legal personality, its constituent agreement, as a result of the functions of the organization, or some combination thereof. The chapter concludes that international organizations have obligations to comply with peremptory norms and accepted general principles of international law (which include elements of human rights and international law) that apply to all subjects under international law. There are also additional obligations which apply in particular contexts, and are aligned with organizations’ purposes and their capacities to act and react in any given situation.

Human Rights and International Humanitarian Law Breaches Attributable to International Organizations

10.1093/oso/9780198808442.003.0003 ◽

2017 ◽

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

International Law ◽

Humanitarian Law ◽

Attribution Of Responsibility

The chapter considers how to determine whether a particular internationally wrongful act is attributable to an international organization, or another actor under international law. It considers the circumstances in which international organizations may breach the human rights and international humanitarian law obligations that they are bound to respect and incur liability in the case of a breach. It also considers when the conduct amounting to a breach is an act of the organization for the purposes of assigning responsibility. It analyses the framework for the attribution of responsibility set out in the Draft Articles on the Responsibility of International Organizations.

The Obligation to Afford Reparation to Injured Individuals

10.1093/oso/9780198808442.003.0004 ◽

2017 ◽

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

International Law ◽

Humanitarian Law ◽

Human Rights Treaties ◽

The Law ◽

The Right ◽

Right Of Access ◽

The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

International Organizations and the Creation of Customary International Law

European Journal of International Law ◽

10.1093/ejil/chaa012 ◽

2020 ◽

Vol 31 (1) ◽

pp. 201-233

Author(s):

Kristina Daugirdas

Keyword(s):

International Law ◽

Direct Role ◽

Customary International Law ◽

Legal Personality ◽

Legal Questions ◽

International Legal System ◽

The Creation ◽

Abstract This article argues that international organizations ‘as such’ can contribute directly to the creation of customary international law for three independent reasons. First, the states establishing an international organization may subjectively intend for that organization to be able to contribute to the creation of at least some kinds of customary international law. Second, that capacity may be an implied power of the organization. Third, that capacity may be a byproduct of other features or authorities of the international organization – specifically, the combination of international legal personality and the capacity to operate on the international plane. Affirming international organizations’ direct role in making customary international law will not dramatically change the content of customary international law or the processes by which rules of customary international law are ascertained. But recognizing that role is significant because it will reinforce other conclusions about how international organizations fit into the international legal system, including that customary international law binds international organizations. Such recognition may also shift the way lawyers within international organizations carry out their work by affecting the sources they consult when answering legal questions, the materials they make publicly available and the kinds of expertise that are understood to be necessary to discharge their responsibilities. Finally, affirming international organizations’ role in creating customary international law may make international organizations more willing to comply with those rules.

International Organizations and the Fight for Accountability

10.1093/oso/9780198808442.001.0001 ◽

2017 ◽

Cited By ~ 3

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

International Law ◽

Humanitarian Law ◽

Progressive Development ◽

The Law

This book is concerned with reparation for human rights and international humanitarian law breaches committed by or attributed to international organizations. These breaches constitute internationally wrongful acts which, according to the International Law Commission’s Draft articles on the responsibility of international organizations, give rise to an obligation on the offending organization to afford reparation. However, in practice, the obligation to afford reparation is unimplemented. The book explores why this is. It considers how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and, particularly, their application to remedies and reparation owed to individuals. It reviews the various gaps in the law and the limitations of existing redress mechanisms. The book analyses the cogency of the arguments and rationales that have been used by international organizations to limit their liability and the scope and functioning of redress mechanisms, included by the resort to lex specialis principles. It is postulated that the standards of reparation must be drawn from the nature of the breach and the resulting harms and not by who is responsible for the breach. In this respect the book is an exercise in the progressive development of the law. Having determined that existing redress mechanisms cannot afford adequate or effective remedies and reparation, the book explores how to move towards a model that achieves greater compliance.

Responsibility of the WTO for Breach of an International Obligation under the Draft Articles on Responsibility of International Organizations

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/s0069005800010845 ◽

2013 ◽

Vol 50 ◽

pp. 197-242

Author(s):

Noemi Gal-Or

Keyword(s):

International Law ◽

World Trade ◽

Legal Personality ◽

International Obligation ◽

The World ◽

History Of ◽

International Responsibility ◽

SummaryThis article challenges the argument that the World Trade Organization (WTO) is devoid of executive or governing functions and, hence, immune from the regime set out in the International Law Commission’s 2011 Draft Articles on the Responsibility of International Organizations (RIO). A brief drafting history of the RIO, clarification of the terminology associated with matters of international responsibility, and two hypothetical examples illustrating the potential for WTO responsibility set the stage for the article’s main argument. The author examines the WTO’s nature by analyzing its constituent law, its sui generis mandate and functions, its international legal personality, and its own use of terminology in presenting itself to the world. Critical analysis of RIO Articles 64 (on lex specialis) and 10 (on the existence of a breach of an international obligation), and their application to the WTO, completes the argument. The author thus refutes both the notions that (1) the WTO is exclusively member driven and, hence, not an executive, governing organization but a sui generis entity and (2) the WTO is therefore unable to breach an international obligation and thus immune from the RIO regime. The article concludes that, while a breach by the WTO of an international obligation may be exceedingly rare, it nonetheless — as any international organization — comes within the ambit of the RIO regime. The WTO should therefore consider adjusting its internal rules accordingly.

Abuse of the Legal Personality of International Organizations and the Responsibility of Member States

International Organizations Law Review ◽

10.1163/157237307x223648 ◽

2007 ◽

Vol 4 (1) ◽

pp. 91-119 ◽

Cited By ~ 12

Author(s):

Jean d'Aspremont

Keyword(s):

Decision Making ◽

International Law ◽

Decision Making Process ◽

Member States ◽

Legal Personality ◽

International Obligations ◽

AbstractIt is classically contended that when an international organization endowed with international legal personality commits an international wrongful act, the organization is to be held exclusively responsible even though the act would have constituted a violation of its member states' obligations if committed by them. This Article intends to depart from such a rigid interpretation of the responsibility of international organization and makes the argument that when member states abuse the international legal personality of an international organization through the exercise of an excessive control over the decision-making process of the organization, they must be held, together with the organization, responsible for violations of international law by the organization provided that such a wrongful act would also constitute a breach of the member states' international obligations if committed by them. It is posited here that, in this situation, member states can no longer hide behind the screen of the international legal personality of the organization. Failing to take the extent of control exercised by member states over the decision-making process of an international organization into account boils down to ignoring that autonomy is one of the constitutive elements of the legal personality of an international organization, which can bolster the contemporary move away from international institutionalism.

International Legal Personality of Armed Groups under Human Rights Law

10.1093/oso/9780198808381.003.0006 ◽

2017 ◽

Author(s):

Katharine Fortin

Keyword(s):

Human Rights ◽

International Human Rights Law ◽

Humanitarian Law ◽

Human Rights Law ◽

Armed Groups ◽

Legal Personality ◽

Threshold Test ◽

This final chapter of Part II of the book draws together the conclusions of the previous two chapters to develop conclusions about the circumstances in which armed groups can acquire legal personality under human rights law. Examining these conclusions, the chapter argues that there is a need for a threshold test to be met before international human rights law can be applied. It argues that this threshold test should include an ‘organization’ component and an ‘international’ requirement. Drawing upon the conclusions in Chapter 2 on the normative value of human rights law versus international humanitarian law, the chapter ends by considering how an armed group’s control of territory may be relevant to such a threshold test.

75 Years of International Law-Making at the United Nations

Max Planck Yearbook of United Nations Law Online ◽

10.1163/18757413_023001002 ◽

2020 ◽

Vol 23 (1) ◽

pp. 1-38

Author(s):

Miguel de Serpa Soares

Keyword(s):

International Law ◽

San Francisco ◽

Unique Contribution ◽

Humanitarian Law ◽

Member States ◽

Legal Personality ◽

Legal Principles ◽

International Legal Personality ◽

Law Making

For the last 75 years, the UN has been placed at the centre of international law-making. The Organization can be considered both as a place where international law is discussed, made and interpreted by its Member States and as a proper actor, with its own international legal personality, voice and practice, engaged in the creation and implementation of international law. This article considers the extraordinary position of the UN in providing a unique contribution to the development, codification and implementation of international law in branches ranging from the law of treaties to the legal principles governing the protection and preservation of the marine environment or the criminal accountability for graves violations of international humanitarian law. On its 75th anniversary, the Organization has demonstrated its flexibility and adaptability to the changing priorities and concerns of the international community and facilitated the commitment of its Member States to multilateralism and the principles enshrined in the Charter signed on 26 June 1945 in San Francisco. Indeed, the outlook for the next 25 years of international law-making at the UN looks brighter than it may at first appear.

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 ◽

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

Adjudication before Regional and International Courts

10.1093/oso/9780198808442.003.0007 ◽

2017 ◽

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

Subject Matter ◽

Regional Integration ◽

Humanitarian Law ◽

International Courts ◽

International Court

International and regional courts provide a degree of oversight over the conduct of international organizations. In some instances, these courts have played an important, albeit indirect role in assessing the validity of international organization conduct in the course of proceedings against States, which has had a modest influence on the procedures of universal international organizations. Regional courts have also played an important role in assessing the acts of regional integration organizations, although the limited personal and subject matter jurisdiction of many of such courts has limited their capacity to adjudicate claims concerning organizations’ human rights and international humanitarian law breaches. There is no international court with a mandate to adjudicate claims brought by individuals concerning the acts of international organizations.