Final Report Summary - RESINTORG (Responsibility of International Organisations for Human Rights Violations)
The research project deals with the responsibility of international organisations and focuses on those acts by which international organisations may affect human rights. The research aims in particular a) to identify human rights norms that bind international organisations and to determine their content and scope of application; b) to refine the rules on attribution of responsibility to international organizations; c) to identify authorities which can establish the responsibility of international organizations for human rights violations; d) to clarify legal consequences of such violations and to examine possible remedies that victims of such human rights violations can have at their disposal.
The project has fully attained the research objectives. (1) With respect to the objective of identifying the norms that bind international organisations in the field of human rights, the research establishes certain legal norms under general international law that are applicable to all international organizations. Despite the general hesitancy of international organisations to declare themselves bound by human rights, the research demonstrates the applicability of those human rights norms to international organisations, according to which any public authority has to refrain from interfering with human rights, unless there is a specific legal basis for such an interference under the rules of the organisation or general international law. Moreover, the interference needs to pursue a legitimate aim and has to be proportionate and strictly necessary for the achievement of that aim. The research classifies such type of obligations as negative human rights obligations of international organisations.
In addition, the research identifies further human rights norms that are applicable to international organisations, but whose content and scope differ significantly from one international organization to another and depend in particular on the mandate and functions of a particular organization. Such legal norms provide for those actions that international organisations may need to undertake in order to actively promote, protect and monitor the implementation of human rights, be it by their own organs and agents or by other international actors, including by member states of international organisations and possibly also third states or other international organisations. This type of norms are classified in the project as positive human rights obligations of international obligations. In order to examine the divergences of positive obligations that apply to different organisations, a comparative legal analysis has been conducted with respect to selected organisations, including the UN, the WTO and the NATO. The results of the analysis show that the UN is an organisation with the widest scope of positive human rights obligations, due to its unique mandate in maintaining international peace and security as well as in promoting universal protection of human rights.
(2) With respect to the objective of elaborating the rules on attribution of responsibility to international organizations, the research demonstrates that internal rules of organizations are the most important criteria according to which an act – including an act that results in a human rights violation – may be attributed to the organisation. However, the research also evidences that there are further criteria for the attribution, including the standard of an effective control that an organisation might exercise over a particular act. Whether an organisation exercises such control is therefore to be established also on the basis of the facts of the case, including the organisation’s financial, diplomatic, managerial and other kind of influence over the act in question. Moreover, the research proves that an attribution of an act to a private person, a state or other legal entity does not exclude the possibility of the act to be simultaneously attributed also to an international organisation, thereby arguing for the institute of shared responsibility in that field of law. That conclusion is particularly relevant for the settlement of disputes that concern activities of international organisations and that are brought before domestic and international courts and tribunals: A finding of a court that a challenged act is to be attributed also to an international organisation does not resolve the court from the duty to examine whether the act can be attributed to a state or a private person, or vice versa. Such duty applies also to the European Court of Human Rights, which so far has in a number of cases declared itself incompetent to hear complaints against the respondent states after it established that the challenged acts can be attributed to the organisations of which the respondent states were members.
(3) With regard to the third and fourth objective of the research to identify authorities that can or could establish responsibility of international organizations and provide for the remedies in case of human rights violations, the research considers a range of monitoring and compliance mechanisms that may be classified as: International mechanisms that are internal to an organization, international mechanisms that are external to an organization, and domestic mechanisms. A comparative legal analysis conducted with respect to a number of international organisations thereby shows that international mechanisms are relatively rare and are in most cases provided primarily for the settlement of disputes, in particular between the organisations and their members of staff. Perhaps the most alarming part of that part of the research is the finding that there is a clear lack of mechanisms for the settlement of disputes between organisations and private parties, who are the direct victims of such violations, and that such situation amounts to the victim’s systematic deprivation their right of access to justice.
Domestic dispute settlement mechanisms are examined by a separate comparative legal analysis. This part of the research indicates that in order to compensate for the lack of remedies available to the victims on the international level, domestic courts of an increasing number of jurisdictions are prepared to entertain cases brought against international organisations. Consequently, they increasingly grant immunities to the international organisations only under the condition that the victim has some alternative international dispute settlement mechanism at his/her disposal in which he/she can invoke the responsibility of the respondent organisation. The trend of restricting immunities of international organisations is particularly evident among European countries, but includes also several countries from the Latin America and Africa as well as countries such as the USA and Canada.
The research conceptualises that trend in legal and political terms, and determines under what conditions domestic courts may legally and legitimately exercise such jurisdiction with respect to international organisations. For that purpose, it examines the relationship between the domestic and international mechanisms and develops a thesis on the separation of their powers in the field of human rights. Thereby, the research signals a number of risks involved in case international disputes concerning human rights violations are settled by domestic authorities. On the other hand, the research evaluates as legally relevant that the criteria, according to which domestic courts entertain such cases, are increasingly coherent and commonly concern the lack of an effective protection of human rights by the respondent organisation. That conclusion is relevant in particular for international organizations, in that it can guide their efforts to develop their own forums and remedies for the victims of human rights violations. On the other hand, it is relevant for domestic courts and other domestic authorities, in that it may guide their considerations as to the scope of immunities that are to international organizations and the conditions under which the immunities may be set aside in the domestic proceedings.
The project has fully attained the research objectives. (1) With respect to the objective of identifying the norms that bind international organisations in the field of human rights, the research establishes certain legal norms under general international law that are applicable to all international organizations. Despite the general hesitancy of international organisations to declare themselves bound by human rights, the research demonstrates the applicability of those human rights norms to international organisations, according to which any public authority has to refrain from interfering with human rights, unless there is a specific legal basis for such an interference under the rules of the organisation or general international law. Moreover, the interference needs to pursue a legitimate aim and has to be proportionate and strictly necessary for the achievement of that aim. The research classifies such type of obligations as negative human rights obligations of international organisations.
In addition, the research identifies further human rights norms that are applicable to international organisations, but whose content and scope differ significantly from one international organization to another and depend in particular on the mandate and functions of a particular organization. Such legal norms provide for those actions that international organisations may need to undertake in order to actively promote, protect and monitor the implementation of human rights, be it by their own organs and agents or by other international actors, including by member states of international organisations and possibly also third states or other international organisations. This type of norms are classified in the project as positive human rights obligations of international obligations. In order to examine the divergences of positive obligations that apply to different organisations, a comparative legal analysis has been conducted with respect to selected organisations, including the UN, the WTO and the NATO. The results of the analysis show that the UN is an organisation with the widest scope of positive human rights obligations, due to its unique mandate in maintaining international peace and security as well as in promoting universal protection of human rights.
(2) With respect to the objective of elaborating the rules on attribution of responsibility to international organizations, the research demonstrates that internal rules of organizations are the most important criteria according to which an act – including an act that results in a human rights violation – may be attributed to the organisation. However, the research also evidences that there are further criteria for the attribution, including the standard of an effective control that an organisation might exercise over a particular act. Whether an organisation exercises such control is therefore to be established also on the basis of the facts of the case, including the organisation’s financial, diplomatic, managerial and other kind of influence over the act in question. Moreover, the research proves that an attribution of an act to a private person, a state or other legal entity does not exclude the possibility of the act to be simultaneously attributed also to an international organisation, thereby arguing for the institute of shared responsibility in that field of law. That conclusion is particularly relevant for the settlement of disputes that concern activities of international organisations and that are brought before domestic and international courts and tribunals: A finding of a court that a challenged act is to be attributed also to an international organisation does not resolve the court from the duty to examine whether the act can be attributed to a state or a private person, or vice versa. Such duty applies also to the European Court of Human Rights, which so far has in a number of cases declared itself incompetent to hear complaints against the respondent states after it established that the challenged acts can be attributed to the organisations of which the respondent states were members.
(3) With regard to the third and fourth objective of the research to identify authorities that can or could establish responsibility of international organizations and provide for the remedies in case of human rights violations, the research considers a range of monitoring and compliance mechanisms that may be classified as: International mechanisms that are internal to an organization, international mechanisms that are external to an organization, and domestic mechanisms. A comparative legal analysis conducted with respect to a number of international organisations thereby shows that international mechanisms are relatively rare and are in most cases provided primarily for the settlement of disputes, in particular between the organisations and their members of staff. Perhaps the most alarming part of that part of the research is the finding that there is a clear lack of mechanisms for the settlement of disputes between organisations and private parties, who are the direct victims of such violations, and that such situation amounts to the victim’s systematic deprivation their right of access to justice.
Domestic dispute settlement mechanisms are examined by a separate comparative legal analysis. This part of the research indicates that in order to compensate for the lack of remedies available to the victims on the international level, domestic courts of an increasing number of jurisdictions are prepared to entertain cases brought against international organisations. Consequently, they increasingly grant immunities to the international organisations only under the condition that the victim has some alternative international dispute settlement mechanism at his/her disposal in which he/she can invoke the responsibility of the respondent organisation. The trend of restricting immunities of international organisations is particularly evident among European countries, but includes also several countries from the Latin America and Africa as well as countries such as the USA and Canada.
The research conceptualises that trend in legal and political terms, and determines under what conditions domestic courts may legally and legitimately exercise such jurisdiction with respect to international organisations. For that purpose, it examines the relationship between the domestic and international mechanisms and develops a thesis on the separation of their powers in the field of human rights. Thereby, the research signals a number of risks involved in case international disputes concerning human rights violations are settled by domestic authorities. On the other hand, the research evaluates as legally relevant that the criteria, according to which domestic courts entertain such cases, are increasingly coherent and commonly concern the lack of an effective protection of human rights by the respondent organisation. That conclusion is relevant in particular for international organizations, in that it can guide their efforts to develop their own forums and remedies for the victims of human rights violations. On the other hand, it is relevant for domestic courts and other domestic authorities, in that it may guide their considerations as to the scope of immunities that are to international organizations and the conditions under which the immunities may be set aside in the domestic proceedings.