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Home International Organisations Archive for category "Responsibility of International Organizations"

The United Nations’ Efforts to Restore a Reputation Tarnished by Cholera

Published on December 9, 2016        Author: 
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Overwhelming evidence demonstrates that UN peacekeepers are the source of a 2010 cholera outbreak that has infected nearly 800,000 people and killed more than 9,000 people. After refusing to apologize or provide redress to the individual victims for six years, the United Nations appears to be changing course. On December 1, UN Secretary-General Ban Ki-moon spoke to the General Assembly about the United Nations’ “new approach” to cholera in Haiti.

Ban’s remarks are notable both for what he said—and for what he did not. Ban finally apologized to the Haitian people. He outlined the steps the United Nations planned to take to combat cholera in Haiti, and to provide benefits, possibly including monetary compensation, to the individuals and communities that were most directly affected. Ban also spoke about the United Nations’ reputation: he urged member states to “seize this opportunity to address a tragedy that […] has damaged our reputation and global mission.” Now for the omission: Ban did not say that that the United Nations had a legal obligation to take any of these steps, even though the lawfulness of the United Nations’ conduct in connection with the cholera crisis in Haiti has been forcefully challenged.

It is these latter two points that I want to address. A couple of years ago, EJIL published an article of mine entitled Reputation and the Responsibility of International Organizations, which argued that international organizations have a strong incentive to cultivate and preserve reputations for being law-abiding. It drew on the cholera crisis in Haiti as a case study. Developments since then confirm the importance of reputation in motivating international organizations—and also highlight a crucial shortcoming of relying on reputation to keep such organizations in line. Read the rest of this entry…

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Launch of Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict

Published on October 31, 2016        Author: 
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In many, if not most, armed conflicts, far more deaths occur as a result of the humanitarian crisis created by the conflict rather than from hostilities or the use of force (see this useful study, at p. 842). In addition to those who die as a result of a lack of food, water, access to medical care or adequate sanitation, untold suffering is caused in conflicts across the globe to millions of other civilians. However, in many recent conflicts humanitarian actors have faced serious challenges in delivering much-needed relief supplies and services to civilians in need. The United Nations Secretary-General, in his recent reports to the Security Council on the Protection of Civilians, has identified improving access for humanitarian operation as one of the five “core challenges” to enhancing the protection of civilians in armed conflict (see eg S/2012/376 (paras. 57-63); S/2015/453 (para. 7). In a November 2013 report to the Security Council [S/2013/689, para. 80], the Secretary General called for further analysis of the issue of arbitrary withholding of consent to humanitarian operations and the consequences thereof. He instructed the UN Office for the Coordination of Humanitarian Affairs (OCHA) to engage with a range of actors to examine the relevant rules and options for guidance in this area. OCHA commissioned the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations (both of which I co-direct) to carry out this exercise. We engaged in a series of expert consultations which took place in Oxford, in addition to informal discussions in Geneva and New York with officials from a number of international agencies and NGOs, with the aim of providing a restatement of the international law rules.

This process has resulted in the production of the Oxford Guidance on the Law Relating to Humanitarian Relief Operation in Situations of Armed Conflict (which is available here). It was a pleasure to launch the Oxford Guidance at UN Headquarters in New York last week, and also in Washington DC. In his May 2016 report [S/2016/447, para. 34] report to the Security Council on the Protection of Civilians, the Secretary General stated that:

“The forthcoming Oxford guidance on the law relating to humanitarian relief operations in situations of armed conflict, which the Office for the Coordination of Humanitarian Affairs commissioned on my request, should enhance understanding of such a legal framework and inform policies to improve humanitarian access.”

This point was reiterated in the Foreword to the Guidance by the UN Under-Secretary General for Humanitarian Affairs who stated that:

“The present Guidance will assist a variety of actors concerned with humanitarian relief operations, including parties to armed conflict, other states, international and non-governmental organizations seeking to provide humanitarian assistance, the United Nations Security Council and General Assembly and other relevant bodies, legal practitioners, scholars and the media.”

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Dutch Supreme Court Affirms that Dutchbat Acted Unlawfully in Srebrenica

Published on September 8, 2013        Author: 
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Tom Dannenbaum is a Visiting Lecturer in Law and Robina Foundation Human Rights Fellow at Yale Law School and a PhD candidate at Princeton University.

In a couple of posts in 2011, I discussed two nearly identical Hague Court of Appeal judgments on the liability of the Netherlands for the actions of Dutchbat at Srebrenica (see here and here). On Friday, the Dutch Supreme Court upheld both of those judgments. In what follows I’ll reference the Nuhanović decision.

The judgments are important on their own terms, but they are also significant in their implications for the Mothers of Srebrenica litigation against the Netherlands, particularly following the judgment of the European Court of Human Rights this summer upholding the Dutch courts’ acceptance of UN immunity in that context. Coincidentally, Dapo and Manuel Ventura posted on the ECtHR’s decision in Mothers of Srebrenica within minutes of the Dutch Supreme Court’s Nuhanović judgment. I connect back to their post below.

The Supreme Court affirmed the Court of Appeal’s strong approach to dual attribution, holding that it was possible that both the Netherlands and the UN had effective control over the same wrongful conduct and that attributing the conduct to the Netherlands did not in any way determine whether the UN also had effective control (such that it, too, could be attributed with the wrongdoing). (para 3.11.2). Relatedly, the Court also affirmed the power-to-prevent standard discussed in the second of my earlier posts (paras 3.11.3, 3.12.2, 3.12.3). I have advocated this standard at greater length elsewhere (here and here).

The aspect of Friday’s judgment that did the most work in going beyond the reasoning of the Court of Appeal was the Supreme Court’s discussion of extraterritoriality. It elaborated on two points in this respect (acknowledging explicitly that its discussion on this amounted to obiter dictum).

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Sharing Responsibility for UN Targeted Sanctions

Published on February 14, 2013        Author: 
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Cross-posted from the SHARES Blog

UN targeted sanctions, especially those related to terrorism, have had their fair share of the limelight lately, particularly in view of important decisions by the ECJ, the ECtHR, the UK Supreme Court and others in cases such as KadiNada, and Ahmed. Here, I try to look at this jurisprudence through the lens of the project on shared responsibility (SHARES). After introducing the relevant sanctions regime, I argue that the complex conduct of the UN and its member-states in designing, imposing, and implementing the sanctions leads to them sharing international responsibility for the resulting breach of aspects of the internationally protected right to a fair trial. This is so because states are ‘held responsible’ in their own domestic courts or in regional international courts, which then forces them to turn to the UN and seek to implement the organisation’s international responsibility. In this manner, the international responsibility for what is in effect ‘shared’ conduct is itself shared, in practice. Read the rest of this entry…

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The Hague Court of Appeal on Dutchbat at Srebrenica Part 2: Attribution, Effective Control, and the Power to Prevent

Published on November 10, 2011        Author: 
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 Tom Dannenbaum is a Graduate Associate in the Law and Public Affairs Program at the Woodrow Wilson School of Public and International Affairs at Princeton University. He is author of Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers51 Harv. Int’l L.J. 113 (2010)

Introduction:

In an earlier post, I reported on the Hague Court of Appeal’s decisions in Nuhanović v. The Netherlands and Mustafić-Mujić et al v. The Netherlands regarding the wrongdoing of Dutchbat at Srebrenica. Here, I examine the Court’s holding on the attribution of that wrongdoing to the Dutch state.

The decisions provide stronger and clearer jurisprudential affirmation of the principles of “effective control” and dual attribution than does the Grand Chamber’s judgment in Al-Jedda v. United Kingdom (handed down just two days later). Moreover, the Court of Appeal’s elaboration of “effective control” establishes several key features of the concept as applied in the peacekeeping context. First, the “effective control” analysis should be applied equally to the contributing state and the receiving international organization. Second, “effective control” includes not just giving orders, but also the capacity to prevent the wrongdoing. Third, though the Court’s position on this is slightly more ambiguous, troop-contributing states may sometimes hold that “power to prevent” in virtue of their authority to discipline and criminally punish their troops for contravening U.N. orders. I would go beyond the Court’s reasoning on this third feature to add that the state’s authority with respect to selecting and training troops and contingent commanders is also relevant in this regard.

Since the decisions do not differ on any significant matters of substance, the citations below are to Nuhanović, but apply equally to Mustafić-Mujić. Read the rest of this entry…

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UNESCO Approves Palestinian Membership Bid – A Case for US Countermeasures Against the Organization?

Published on November 8, 2011        Author: 
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Christiane Ahlborn is Ph.D. Candidate at the Amsterdam Center for International Law and member of the project on Shared Responsibility in International Law (SHARES)

On 31 October 2011, the UN Educational, Scientific and Cultural Organizations (UNESCO) approved the bid of Palestine for full membership with the necessary two-thirds majority. Although 107 UNESCO States voted in favor of Palestinian membership, the approval also faced notable opposition by 14 States. The overall number of 173 votes cast included 52 abstentions. Among the States voting against the bid were the United States, Canada and several EU member States, including Germany and the Netherlands. While the diverging positions of EU member States thus reveals once again the lack of unanimity in EU external relations policy, the US disapproval of the Palestinian UNESCO membership may have more serious consequences at the level of US-UNESCO relations. For after the approval of Palestine’s membership bid, the US immediately announced that it would cut off its funds to UNESCO, which amount to 60 million USD annually. This decision is based on several US laws that prohibit the US government to provide funds to any United Nations agency or affiliated organization that “accords the Palestine Liberation Organization the same standing as member states” (see P.L. 101-246, Title IV [1990] and P.L. 103-236, Title IV [1994]).

International Responsibility for Withholding Membership Dues

Since the US is the largest contributor to the UNESCO budget with a share of 22 percent, its decision to withhold its contributions will most likely impede the effective functioning of the organization. As the Director-General of UNESCO stated on 2 November 2011, the continued withholding of dues may severely affect UNESCO’s activities in a variety of areas. UNESCO already felt the repercussions of the lack of US funding after 1984 when the United States withdrew from UNESCO due to the increasing politicization of the Organization, rejoining only in 2003 (for a discussion of the reasons for the withdrawal see Hans N. Weiler, ‘Withdrawing from UNESCO: A Decision in Search of an Argument’ (1986) Comparative Education Review 132).

Considering the potentially detrimental effects of US withholdings, this contribution seeks to examine whether the US could be held internationally responsible for its acts under the law of international responsibility. After all, Article IX of the constituent instrument of UNESCO (the UNESCO Constitution) states that member States of the organization have a “financial responsibility” towards the Organization, i.e. an obligation to provide the Organization with the necessary financial resources, as decided by the General Conference of UNESCO. Although this obligation arguably could have been formulated in more concrete terms, it is suggested that the United States would breach its obligations under the UNESCO Constitution by withholding its membership dues, and accordingly be under a secondary obligation to make reparation either in kind and/or by means of compensation.

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The Hague Court of Appeal on Dutchbat at Srebrenica Part 1: A Narrow Finding on the Responsibilities of Peacekeepers

Published on October 25, 2011        Author: 
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Tom Dannenbaum is a Graduate Associate in the Law and Public Affairs Program at the Woodrow Wilson School of Public and International Affairs at Princeton University. He is author of Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers, 51 Harv. Int’l L.J. 113 (2010)

Introduction:

This summer, the Dutch Court of Appeal in The Hague issued simultaneous and almost identical rulings in two crucial lawsuits regarding the actions of U.N. peacekeepers during the Srebrenica genocide – Nuhanović v. The Netherlands and Mustafić-Mujić et al v. The Netherlands. The cases involve civil claims with respect to the deaths of four Bosnian civilians in the Srebrenica genocide. The victims were killed by Bosnian Serb forces after being evicted by the Dutch battalion (Dutchbat) of UNPROFOR from the U.N. compound at Potočari on the 13th of July 1995. The Court of Appeal decided that Dutchbat acted unlawfully in evicting two of the male victims, that this triggered legal responsibility for the deaths of all three male victims (but not the sole female victim), and that the wrongs could be attributed to the Netherlands.

In this post, I provide a brief description of the procedural and factual background to the case and address the legal issue of Dutchbat’s wrongdoing. Later this week, I will address the potentially more consequential issue of the attribution of that wrongdoing to the Dutch state.

The Court’s analysis of Dutchbat’s wrongdoing has two key features. First, the Court applied human rights obligations abroad. However, it did not do so by finding the relevant treaties to have extraterritorial effect. Instead, it found (i) that the ICCPR had been incorporated into the domestic law of the host state (Bosnia and Herzegovina) and (ii) that the relevant provisions of the ICCPR and ECHR were rules of customary international law that were binding extraterritorially (whether or not the treaty obligations themselves would extend abroad). Second, the ruling characterized Dutchbat’s wrongdoing narrowly: (i) relying on the eviction of the victims from the U.N. compound, not on any responsibility to protect those already outside the compound, and (ii) noting that since the victims were the last persons to be evicted, the judgment provided no indication of whether earlier evictions would have been unlawful (the probable consequences of eviction having become more apparent to Dutchbat over time). Read the rest of this entry…

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Some Remarks on Disobeying the Security Council

Published on May 27, 2011        Author: 
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Matthew Happold is Professor of Public International Law at the University of Luxembourg.

 I greatly enjoyed Dr Tzanakopoulos’ Disobeying the Security Council.  The book displays a richness of argument backed by a depth of research.  At point after point, I found myself in agreement with the author.  Yet, sympathetic though I am to his approach, I was unable to follow his argument to the end.

In the first two parts of Disobeying the Security Council, Dr Tzanakopoulos examines how the imposition of non-forcible measures under Article 41 of the UN Charter can engage the international responsibility of the United Nations, and how – and by whom – such responsibility is determined.  Some minor points aside, I agree with Dr Tzanakopoulos.  Whatever the situation as regards the implementation of binding resolutions of the Security Council, it seems evident that their promulgation is attributable to the United Nations, of which the Council is one of the principal organs. And absent a few provocateurs, there seems general agreement that the Council’s powers are not unlimited.  Rather, differences exist regarding what the extent of those powers is and who is entitled to determine whether the Council stepped beyond them.  The International Court of Justice seems unable – and has definitely shown itself unwilling – to judicially review Council decisions. Other courts and tribunals apply their own law, whether that is national law or that mandated by their constituent treaty, so in most cases they are not concerned with whether a particular Council resolution is in breach of the United Nations Charter or of general international law.  Indeed, it is usually not the relevant Council resolution that they are reviewing but the act implementing it within their own legal system.  Moreover, only a certain limited class of questions concerning the legal effect of Council resolutions tend to come before national courts, that is, those where resolutions directly affect individual rights.  Hence the concentration of cases on the ‘blacklisting’ of individuals and the freezing of their assets under the sanctions regimes established by Council resolutions 1267 and 1333.

Given this, one can only fall back on the general rule in international law: that States retain the power to auto-determine the legality of measures issued by the Council. It is no more than stating the obvious that UN member States have an entitlement to interpret Security Council decisions.   Interpretation must be undertaken, at least in the first instance, by member States, because it is they who implement Council resolutions and they must ascertain what they are obliged to do in order to do it.  Indeed, to a large extent the distinction between interpretation and determination of one’s legal obligations is a distinction without practical difference. For example, the conclusion of the Organization of the Islamic Conference that paragraph 6 of Security Council resolution 713 (which imposed an arms embargo on the former Yugoslavia) did not ‘legally’ apply to Bosnia-Herzegovina was premised on the view that to interpret the embargo as applicable to Bosnia would render the resolution ultra vires because the Council could not legally prevent a State from seeking to exercise its ‘inherent’ right of self-defence (not un-coincidentally this was the argument put by Bosnia before the ICJ).

However, in the final part of the book Dr Tzanakopoulos argues that when States disobey the Security Council what they are engaging in are countermeasures in response to illegal conduct by the Council. Here the hinge on which matters seem to pivot is Article 25 of the UN Charter, which Dr Tzanokapoulos interprets are making any disobedience of binding Council decisions illegal. Hence, the only way such an illegality can be justified is as a response to another prior illegality, the resolution itself.  I confess to having problems with this characterisation.  Read the rest of this entry…

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A Comment on Disobeying the Security Council

Published on May 26, 2011        Author: 
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Antonios Tzanakopoulos has written a powerful book in Disobeying the Security Council. It is a rich – at times very rich – piece of scholarship, covering a range of complex issues. The book makes two important arguments (and at that ones I agree with!). First (a point of course already made before), that it is states themselves which are the ultimate judges of the legality of the Security Council’s decisions. In a decentralized system lacking any compulsory and systematic means of judicial control and dispute resolution, self-help may turn out to be the only game in town. It is by choosing to openly disobey (or more frequently, very narrowly interpret) decisions of the Security Council that they regard as unlawful that states act as a check against the Security Council abusing its powers. Second (and relatedly), that much of the scholarly discussion regarding the legality of Security Council action tends to adopt a domestic public law mindset, whether quite consciously or at times uncritically, a mindset which is inappropriate when some of the underpinnings of domestic public law, such as compulsory adjudication, are lacking

In order to advance these arguments, and to offer a solution that would both provide a meaningful check on the UNSC’s powers and yet not suffer from the perils of domestic law-thinking, Antonios makes several crucial conceptual and doctrinal moves. It is with some of these that I have to part ways. Most importantly, he changes the focus from the validity of the decisions of the UNSC to the UN’s responsibility for illegal UNSC decisions as internationally wrongful acts, measured against the law binding on the organization. As always in the decentralized international system, states have the right of auto-determination, i.e. of deciding for themselves that the organization is responsible, and then have the right to take countermeasures against it, including disobeying its decisions and refusing to pay their allocated dues to it. In doing so, of course, states as always assume the risk that they might be wrong in their own assessment, and if they are they must suffer the consequences.

In essence, Antonios’ approach is very much one of classical international law, relying on established legal institutions and methods of this decentralized system such as responsibility and countermeasures, and avoiding the pitfalls of constitutionalization or domestic law-thinking generally. This critical effort is certainly a laudable one – but whether it ultimately succeeds is not as clear.

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Debating Disobeying the Security Council – is it a matter of ‘a rose by any other name would smell as sweet’?

Published on May 25, 2011        Author: 
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Erika de Wet is Co-Director and Professor of International Law, Institute for International and Comparative Law in Africa, University of Pretoria (South Africa); Professor of International Constitutional Law, University of Amsterdam (The Netherlands). The author’s critique is based on views developed in Chapters 4 and 10 of her monograph entitled The Chapter VII Powers of the United Nations Security Council (Hart Publishing, 2004).

The book by Antonions Tzanakopoulos examines how and by whom the responsibility of the United Nations for unlawful Security Council sanctions can be determined. Its central thesis is that States can respond to unlawful sanctions imposed by the Security Council by disobeying the Security Council’s command in a manner that constitutes countermeasures to the Security Council’s unlawful action. The book is very well written, creative and  intellectually challenging in the way it attempts to align the law of State responsibility with the Law of the United Nations Charter.

However, like with other theories developed in an attempt to curb illegal action by the United Nations Security Council, closer scrutiny reveals that the arguments presented are not water-tight and may require further motivation. The subsequent paragraphs will focus on two such issues. The first concerns the reason why Antonios resorts to the concept of countermeasures in the first place, whereas the second relates to the analogy that he draws between Security Council sanctions and countermeasures.

A cornerstone of Antonios’ argument centres around his submission (pp 164-166) that all member States remain bound to decisions under article 25 of the United Nations Charter, which determines that ‘[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. This article remains controversial due to the question whether the phrase ‘in accordance with the present Charter’ refers only to the member States or the organisation as well. If it referred only to the member States they would be obliged to carry out decisions of the Security Council under all circumstances. If, however, the phrase referred to the organisation as well, it is arguable that the member States would only be obliged to carry out those decisions that were adopted in accordance with the Charter, i.e. intra vires.

Antonios does not accept that the controversial phrase ‘in accordance with the present Charter’ should be interpreted as meaning that member States are only bound by those Security Council decisions that remain within the competencies of the Council (i.e. intra vires decisions). He rejects this position on the basis of two arguments. First, he claims (with rather cursory arguments) that the ambivalence surrounding the meaning of this phrase cannot be resolved through interpretation. His second and perhaps more intriguing argument is that no constitutional system can operate unless there is some final instance that promulgates acts with which all the addressees must comply, irrespective of their lawfulness. In the subsequent paragraph he acknowledges that the term constitutionalization is problematic (without attempting to suggest a definition of his own) and doubts whether the Charter was meant to be a constitution. Even so, he seems to adhere to the argument that the Charter system, in order to operate, requires States to remain bound to all Security Council decisions, regardless of their legality (until such a time as they are revoked by the Security Council itself).

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