Adjudication before Regional and International Courts

Subject Matter ◽

Regional Integration ◽

International Organization ◽

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.

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 ◽

International Organization ◽

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.

Introduction

10.1093/oso/9780198808442.003.0001 ◽

2017 ◽

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

Subject Matter ◽

Humanitarian Law ◽

The Subject

The chapter provides an overall introduction to the book. It explains the subject matter of the book, which is an exploration of the challenges to obtain remedies and reparation for harm suffered in the context of violations of human rights and international humanitarian law carried out by or attributed to international organizations. It sets out the problems the book seeks to address, the approach taken, the methodology, the structure of the arguments, particular issues and tensions. Finally, it posits some solutions and paths forward to the myriad lacunae that have been identified throughout the text and explains what is concluded overall.

International Organizations’ Obligations under Human Rights and International Humanitarian Law

10.1093/oso/9780198808442.003.0002 ◽

2017 ◽

Author(s):

Carla Ferstman

Keyword(s):

Human Rights ◽

International Law ◽

International Organization ◽

Humanitarian Law ◽

Legal Personality ◽

Peremptory Norms ◽

International Legal Personality

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.

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.

9 Occupation

The Handbook of International Humanitarian Law ◽

10.1093/law/9780198847960.003.0009 ◽

2021 ◽

Author(s):

Dörmann Knut ◽

Vité Sylvain

Keyword(s):

Human Rights ◽

Exceptional Case ◽

Customary Law ◽

Humanitarian Law ◽

Human Rights Law ◽

Occupied Territory ◽

International Court ◽

Occupied Territories

This chapter addresses the present state of the law of occupation, highlighting also the increasing importance of human rights for the protection of civilians in occupied territories. International law on belligerent occupation determines the rights and obligations of a party to an armed conflict which occupies territory of the adverse party. It also codifies the rights and duties of the residents of such occupied territory. The treatment of the population of an occupied territory is measured against standards set by international humanitarian law and human rights law concurrently. The International Court of Justice (ICJ) left no doubt that as a rule, the specific provisions of GC IV and relevant rules of customary law relating to belligerent occupation take precedence over human rights law, as law specifically drawn up for issues arising out of belligerent occupation (lex specialis). In an exceptional case, it may be determined that a human rights rule offers greater protection to the inhabitants of an occupied territory. When assessing the interplay between international humanitarian law and human rights law, this must be done on a right-by-right or case-by-case basis, respecting the special situation of occupation, rather than in a wholesale manner.

The International Court of Justice as a Guardian of the Unity of Humanitarian Law

Leiden Journal of International Law ◽

10.1017/s092215650700427x ◽

2007 ◽

Vol 20 (3) ◽

pp. 593-611 ◽

Cited By ~ 5

Author(s):

FABIÁN O. RAIMONDO

Keyword(s):

International Law ◽

Humanitarian Law ◽

Stare Decisis ◽

International Courts ◽

Court Of Justice ◽

International Court

This article seeks to examine whether the International Court of Justicehas developed jurisprudence on international humanitarian law and whether this has exerted any influence on the decisions adopted by other international courts and tribunals. In so doing, it revisits the issue of the value ofjudicial decisions under international law. Finally, it reveals that despite the non-operation of the rule of stare decisis in international law, the Court's jurisprudence on international humanitarian law has been a persuasive precedent for other international courts and tribunals.

Sources of International Humanitarian Law and International Criminal Law

10.1093/law/9780198745365.003.0043 ◽

2018 ◽

Author(s):

Steven R. Ratner

Keyword(s):

Criminal Law ◽

International Criminal Law ◽

Humanitarian Law ◽

International Courts ◽

Court Of Justice ◽

International Court ◽

Necessary And Sufficient ◽

Shed Light

This chapter contends that international humanitarian law (IHL) and criminal law (ICL) cast serious doubt on the traditional doctrine and understanding of sources. Article 38 of the International Court of Justice (ICJ) Statute inadequately describes key modes for prescribing law in these areas. International courts are particularly important for both areas, perhaps because of their unprincipled approach to the indicia of custom. More fundamentally, IHL and ICL suggest that sources scholarship should see itself not as determining necessary and sufficient methods for the making of law, but rather as a search for relevant inputs that become indicators of law. Under this view, certain processes are more authoritative than others, but all deserve scrutiny. Moreover, a theory of sources must take account of the purpose of understanding sources, which is to promote compliance with rules. IHL and ICL also shed light on the importance of morality and ethics to the law-making process.

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.

Reparation for Gross Violations of Human Rights Law and International Humanitarian Law at the International Court of Justice

Reparations for Victims of Genocide, War Crimes and Crimes against Humanity ◽

10.1163/9789004377196_015 ◽

2020 ◽

pp. 350-378

Keyword(s):

Human Rights ◽

Humanitarian Law ◽

Human Rights Law ◽

Court Of Justice ◽

International Court

The Use of PMSCs by the United Nations in Times of Armed Conflict, Application of IHL and Responsibility Matters

10.31228/osf.io/kbmwh ◽

2017 ◽

Author(s):

Javier Gamarro González

Keyword(s):

United Nations ◽

International Law ◽

Peace Operations ◽

Humanitarian Law ◽

Court Of Justice ◽

International Court ◽

The United Nations

The companies dealing with military and security matters are on the rise, and today they provide services to a very wide client list, which includes states and international organizations (IOs). It is well known that these companies have been deployed in a large number of armed conflicts, and indeed, some of them have become prominent in the sector not only for their military results but also for their abuses of international humanitarian law and human rights. Surprisingly, it is lesser known that the United Nations (UN) has also had recourse to private military and security companies in the context of United Nations military operations with regard to the maintenance of international peace and security.The engagement of private military security companies in UN peace operations entails multiple legal questions. This dissertation is especially intended to shed some light over the extent to which PMSCs deployment in UN peace operations is compatible with international humanitarian law and how the law of institutional responsibility deals with the violations of international humanitarian law committed by such companies when providing services to the UN. For that purpose and to that extent due recourse has been made to the most relevant international law sources on the matter, such as the Geneva Conventions, their Additional Protocols, and other relevant instruments such as the ILC Articles on State and IO responsibility, and the Montreux Document. Jus cogens and international custom, including the practice of international organizations and states, and opinion juris as ascertained by legal scholars and the International Court of Justice, play an essential role in this dissertation, since the United Nations has not become yet a party to any IHL treaty, thus employing an inductive methodology. A comparative approach was adopted in regard to the observations of the most eminent institutions and jurists, and domestic and international courts, including the International Court of Justice and the European Court of Human Rights for the purpose of ascertaining the different rules of attribution of conduct existing in international law. Besides, certain decisions of the latter Court were analysed in order to clarify by analogy whether the application of international humanitarian law and the imputation of acts can function under the same degree of control test.