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We Need To Talk About Institutions: Human Rights and International Organisations


Written by Douglas Kerr, LL.B graduate and DPLP student at the University of Glasgow





 *The following is an abridged version of Chapter Two of the author’s LLM Dissertation “To What Extent are International Organisations Accountable for Human Rights Violations” (University of Essex, 2013)


There has been a considerable proliferation of international organisations (IOs) since the creation of the United Nations in 1945. The scope of IO activities is vast, including labour rights (International Labour Organisation), development (World Bank), and telecommunications (International Telecommunication Union) among many others. With expansion in scope and purpose, IOs are acting in areas that were traditionally the domain of States – an explicit example being that of the UN Mission in Kosovo which acts as a surrogate State in administering Kosovo. IOs are frequently accused of negatively impacting on fundamental human rights standards and causing significant harm – from UN Security Council Blacklisting[1] to the impact of lending decisions by the World Bank. Due to this effect on human rights, IOs should be held to account for their actions that result in what would amount to a violation of international human rights law (IHRL) if committed by a State. It would be of serious concern if there were no constraints on the exercise of power by IOs. However, traditionally only States bear IHRL obligations and, therefore, it must be determined whether IOs also have this capacity.


International Legal Responsibility

States are the traditional actors on the international stage and it is often taken for granted that as subjects of international law, they exercise rights and hold obligations under international law. This derives from their holding international legal personality.[2] It is now relatively uncontroversial that IOs are also capable of holding such personality, ‘possessing international rights and duties.’[3] Personality can be identified by several factors. While, in many cases, the constituent instrument of an organisation will provide that the organisation has personality distinct from its members,[4] this is not essential. The UN has no express clause granting legal personality but it was deemed that States must have intended it to have personality as it was required to effectively fulfil its powers and functions under the Charter.[5]

An IO will not automatically hold separate personality. It must exercise some form of independent function from its members and display a distinct will.[6] The ICJ deemed that the Administering Authority for Nauru did not have separate personality because it did not have sufficient autonomy from the States behind it, specifically Australia.[7]

The consequence of international legal personality is that an IO has the capacity to exercise rights and – crucially – bear obligations under international law. Therefore, it is possible that IOs have capacity to bear IHRL obligations. However, it may be that the special character of IHRL precludes this.


Capacity to Bear IHRL Obligations

The ICJ made clear in Reparations that personality does not make the UN or other organisations akin to States and that while they have international rights and duties, these will not necessarily be the same as that of States[8], owing to the different natures of the two classes of entities.

Owing to the special value and nature of human rights, traditionally it was considered that they applied exclusively to States and that States alone bore these obligations.[9] However, arguments for extending IHRL obligations to non-State actors are often made.[10] On the other hand, Nigel Rodley notes that human rights have a special role in regulating official State power and that widening the applicability of human rights law to non-State actors could threaten and dilute their special status. He writes that human rights were an ‘historical response to the rise of the modern nation as a limitation on the authority of the sovereign over subjects’[11] and that:

‘human rights are those rules that mediate the relationship between, on the one hand, governments or other entities exercising effective power analogous to that of governments and, on the other, those who are subject to that power.’[12]

Essentially, this boils down to the principle that human rights protect the governor from the governed. When a population grants power and authority to the State, in return the State cannot exercise its power and authority in such a manner that it violates the fundamental and inalienable rights which make up the content of human rights law. The essential element is that in order to protect basic freedoms, there cannot be unregulated exercise of power or control over people.

Taking the example of torture, it is often held that private actors cannot torture and that private acts of violence are not considered torture within its legal definition.[13] This is because the State bears the obligation and exercises authority over individuals, being obliged to regulate behaviour by having laws in place to discourage and punish (and in some cases a positive obligation to prevent) private acts of violence.[14]

If this exercise of governmental powers or authority can be considered the root of the applicability of human rights law, then a non-State actor may be deemed capable of violating human rights if it exercises public-esque powers where the State is unable or powerless to act.

In Elmi, the Committee Against Torture held that Australia would have been in violation of their obligation of non-refoulement[15] (returning a victim of persecution to the persecutor) should it have returned the complainant to Somalia.[16] Elmi successfully argued that he would be subject to torture should he be returned despite the fact that the alleged perpetrator was a non-State armed group. The Committee based their decision on the fact that the non-State armed groups exercised ‘powers equating to State powers’[17] and, therefore, could be capable of perpetrating torture. However, this case arose in novel and unique circumstances regarding the lack of a recognised government in Somalia, suggesting it is not generally applicable. However, the core principle that the exercise of governmental-like powers was determinative of the non-State actors’ capacity to violate IHRL is an important development.

Indeed, Rodley acknowledges that while non-State actors as a matter of course should not be considered capable of holding IHRL obligations, those armed groups exercising effective power over a segment of the population could be considered to have such capacity.[18] This is predicated on their exercise of governmental-like powers.

There is no obvious reason why this cannot apply to IOs as well as armed groups. States often transfer powers and competencies to IOs meaning that an IO can be vested with public/government-like powers.[19] Indeed, in Kosovo and East Timor, the UN has installed territorial administrations which act as effective States.[20] In East Timor, the administration has been described as effectively operating as a sovereign power.[21] Likewise those under the de facto control of UN controlled military personnel can find themselves in a position where the personnel have the ability to impact on their rights. IOs also act in areas where a State may be unable to prevent them acting, or in situations where States are compelled to abide by decisions and acts of the organisation to the extent that the State can be said to be unable to act. For example, the UN Security Council is often described as exercising governmental-like powers[22] and is capable of binding States. Acts made under Chapter VII of the UN Charter are binding on States under Article 25 and Article 103 grants supremacy to Charter provisions vis-à-vis other international agreements, including, in theory,[23] human rights treaties. The World Trade Organisation obliges States to adhere to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)[24] which restricts their ability to provide affordable medicines to their citizens, arguably impacting on the right to health.[25] If Member States do not implement TRIPS, they may be threatened with WTO panel proceedings or suffer significant economic hardships by being outside the trade system. In general, the ‘WTO, the Bretton Woods Institutions, the EC, and the UN have a pervasive socio-economic, political, and legal impact’[26] on individuals within the sphere of their activities, and:

‘the increasing role of IOs on the international scene is one of the factors contributing to the move of the international legal system away from its traditional status as the exclusive realm of States.’[27]

Thus, it can be seen that IOs have the capability of greatly impacting on many significant areas of public and private life, and that they frequently exercise powers akin to government powers.

In terms of widening human rights applicability to non-State actors, the UN has overseen a recent business and human rights project, resulting in the work of the Professor Ruggie, and the recently adopted ‘Ruggie Guidelines’ on the relationship between companies and human rights.[28] This reflects the sheer power that some companies, most prominently transnational corporations, can wield. Further, the Legal Affairs and Human Rights Committee of the Council of Europe is exploring a resolution on the topic of the ‘Accountability of International Institutions for Human Rights Violations’[29] which indicates that this issue is on the agenda of the Council of Europe, one of the world’s most respected and prominent human rights institutions.

Therefore, it is submitted that IHRL should no longer be considered applicable only to States. IOs also have capacity to bear IHRL obligations.


Concluding Remarks

IOs are capable of holding international legal personality and, therefore, can bear rights and duties under international law. This is based on the autonomy and distinct will of the IO vis-à-vis its Member States. Traditionally, international human rights law applies only to States, but the increasing exercise of public/government-like powers denotes that human rights law should apply to IOs, giving them the capacity to bear IHRL obligations. However, capacity to bear obligations does not necessarily mean that there are specific obligations owed. The body of IHRL consists of specific rules emanating from treaty law, customary law, and other sources. Further exploration is necessary to determine which specific human rights rules might be binding on specific IOs, and also to determine which actions should be attributable to IOs and how IOs might be held to account. Nevertheless, finding that international organisations are even capable of bearing human rights obligations is an important first step in securing greater accountability.

[1] Nada v. Switzerland [GC], no. 10593/08, ECHR, judgment 12/09/12

[2] M. Shaw, International Law, 6th edn., (2008), 197-198

[3] ICJ Advisory Opinion Reparation for Injuries Suffered in the Service of the United Nations (1949), p.179

[4] e.g. Article XV(1) Convention of the European Space Agency (2005)

[5] Reparations supra, pp.179-180

[6] G. Verdirame, The UN and Human Rights: Who Guards the Guardians? (2011), 59

[7] Case Concerning Phosphate Lands in Nauru, Judgment (Preliminary Objections) (1992)

[8] Reparations supra,179

[9] Shaw supra, 185

[10] see among many others: R. McCorquodale, and R. La Forgia, ‘Taking Off the Blindfolds: Torture by Non-State Actors’ 1(2) HRLR (2001), 189-218; and A. Clapham, Human Rights Obligations of Non-State Actors, (2006)

[11] N. Rodley ‘Can Opposition Groups Violate Human Rights?’ in P. Mahoney and K. Mahoney (eds.), Human Rights in the 21st Century, (1993), 299

[12] Ibid, 300

[13] Convention Against Torture (1984), Article 1.

[14] E.g. Article 3 European Convention on Human Rights, 1950; Opuz v. Turkey, no. 33401/02, ECHR judgment 09/09/09

[15] CAT supra, Article 3

[16] Elmi v. Australia (1998), UN Doc. CAT/C/22/D/120/1998

[17] Ibid §5.3

[18] Rodley supra, 298

[19] D. Sarooshi, International Organizations and their Exercise of Sovereign Powers (2005), Chs 4-6

[20] E. de Brabandere ‘Human Rights Accountability of International Administrations: Theory and Practice in East Timor’ in Wouters et al. (eds), Accountability for Human Rights Violations by International Organisations (2010), 331-354

[21] C. Jarat,‘The UN’s Kingdom of East Timor’ 42(3) Survival (2000), 27-40, 29

[22] A. Tzanakopoulos, Disobeying the Security Council, (2011)

[23] cf Nada supra

[24] Agreement on Trade-Related Aspects of Intellectual Property Rights (1994), Marrakesh Agreement Establishing the WTO, Annex 1C

[25] P. Cullet, ‘Patents and Medicines: The Relationship Between TRIPS and the Human Right to Health’ 79(1) International Affairs (2003), 139-160

[26] Tzanakopoulos supra, 1

[27] K. Wellens, ‘Fragmentation of International Law and Establishing an Accountability Regime for International Organizations’ 25 Michigan Journal of International Law (2004), 1159-1181, 1160

[28] HRC, ‘Report of the SRSG, John Ruggie – Guiding Principles on Business and Human Rights’ (2011), UN Doc A/HRC/17/31

[29] PACE Committee on Legal Affairs and Human Rights, Motion for a Resolution, ‘Accountability of International Institutions for Human Rights Violations (2012), CoE Doc 12842


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