Author: Manizja Aziz
Programme: LLM International and
European Law (track: Public International Law)
Supervisor: Mrs. Antoinette Hildering Second reader: Mr. Markos Karavias Date of submission: 20 July 2017
The Immunity of the United Nations versus
the Right of Access to Court in the Context of
Peacekeeping Operations
Abstract
This thesis revolves around the question as to what extent the right of access to court for individuals whose human rights have been violated in the context of peacekeeping operations under UN auspices can be safeguarded in the light of the jurisdictional immunity of the UN. To illustrate this problem, the Haiti cholera case is highlighted.
First, the thesis explores whom can be held responsible for human rights breaches. In this regard, reference is made to the DARIO, which hold that the entity that exercises effective control over the conduct in question, is the entity whom the conduct can be attributed to. This entity can be either the UN, the troop-contributing state, or both. Attribution is one element of international responsibility, of which liability and the duty to make reparations is the corollary.
Second, the thesis focuses on the jurisdictional immunity of the UN, the rationales underlying its immunity, and the conflict between immunity and the right of access to court, as enshrined in the ECHR.
Finally, the procedures that are available for victims at both the UN and national level are outlined, such as the waiver of immunity and the establishment of standing claims commissions. The procedures that are available at the UN level are seriously hampered in their effectiveness and applicability. However, it is preferable to improve the existing procedures at the UN level, rather than letting domestic states waive the immunity of the UN based on the lack of adequate alternative remedies, as this might impinge on the functioning of the UN.
Keywords: access to court, attribution, immunity, international responsibility, peacekeeping
Table of contents
List of abbreviations 4
Chapter 1: Introduction 5
1.1 Haiti cholera case 5
1.2 Structure and scope 6
1.3 Methodology 7
Chapter 2: International responsibility for human rights breaches in peacekeeping 9 operations
2.1 Introduction 9
2.2 The DARIO and the elements of international responsibility 9
2.3 Attribution in peacekeeping operations 11
2.4 Behrami and Behrami v. France 13
2.5 Al-Jedda v. UK 16
2.6 Shared responsibility 18
Chapter 3: The immunity of the United Nations vis-à-vis the right of 19 access to court
3.1 Introduction 19
3.2 The immunity of the United Nations 19
3.3 The right of access to court 21
Chapter 4: Appropriate procedures and remedies at the international and 23 national level
4.1 Introduction 23
4.2 Procedures and remedies at the level of the United Nations 23
4.2.1 Waiver of immunity 23
4.2.2 Standing claims commissions 24
4.3 Remedies and procedures at the national level 27
4.3.1 Reasonable alternative means test 27
4.3.2 Criminal prosecution 31
4.4 Alternative procedures 31
4.4.1 Holding the member state responsible 31
4.4.2 Appointing an Ombudsperson 32
4.4.3 Altering the current judicial avenues 32
Chapter 5: Conclusion 34
List of abbreviations
ARSIWA Articles on the Responsibility of States for Internationally Wrongful Acts
BOI Board of Investigators
DARIO Draft Articles on the Responsibility of International Organisations
ECHR European Convention on Human Rights
ECtHR European Court of Human Right
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ILC International Law Commission
KFOR Kosovo Force
MINUSTAH United Nations Stabilisation Mission in Haiti
NATO North Atlantic Treaty Organisation
SOFA Status of Forces Agreement
UDHR Universal Declaration of Human Rights
UN United Nations
UNGA United Nations General Assembly
UNMIK United Nations Interim Administration Mission in Kosovo
Chapter 1: Introduction
1.1 Haiti cholera case
In 2009, a devastating earthquake ravaged the island of Haiti. One year after, in October 2010, the island was struck again, this time by a deadly outbreak of cholera that has cost the lives of more than 10,000 people and sickened hundreds of thousands.1 A few hypotheses explaining the cholera outbreak were proposed in the aftermath. According to one of them, the epidemic was imported by peacekeepers that were transferred from Nepal to become a part of the UN Stabilisation Mission in Haiti (MINUSTAH) to provide assistance in the wake of the earthquake.2 The members of the peacekeeping contingent were allegedly infected, and the disease spread via “faulty sanitation practices, which leached latrine sewage into the water supply”.3 This hypothesis was later confirmed by epidemiologic and microbiologic evidence.4
However, for years following the outbreak the United Nations (UN) disputed any involvement in the outbreak of the epidemic, insisting that its origins were unclear and up for discussion.
This changed in August 2016 when the UN acknowledged its role in the cholera outbreak for the first time, realising that “it needs to do much more regarding its own involvement in the initial outbreak and the suffering of those affected by cholera”, as declared by the deputy spokesman for former Secretary General Ban Ki Moon.5 This statement was preceded by a leaked confidential report which held that the epidemic “would not have broken out but for the actions of the United Nations”.6 In December 2016, Ban Ki Moon confirmed the role that the UN had
played in the cholera outbreak, by offering an apology to the Haitian people, yet stopping short of accepting legal responsibility for causing the outbreak of the disease.7
1 Balakrish Nair, Cravioto, Lanata & Lantagne, 2013, p. 145. 2 Roth, 2016.
3 Gladstone, 2016. 4 Sontag, 2012.
5 This was declared by Farhan Haq, the deputy spokesman, in an email.
See Katz, 2016.
6 This was declared by special rapporteur Philip Alston.
See Katz, 2016.
To receive compensation, victims of the cholera epidemic brought a case against the UN before domestic courts, like the US District Court,8 claiming that the defendants were liable for the
injuries that had been caused by the cholera outbreak. However, the claims were said to be “not receivable”,9 with reference to the UN’s immunity from jurisdiction, leaving the victims without
a remedy. This shows that the jurisdictional immunity of the UN can potentially threaten the right of access to court of potential claimants and constitute a substantial obstacle for the compensation of harm.10
1.2 Structure and scope
This thesis focuses on the following research question: To what extent can the right of access to
court for individuals whose human rights have been violated in the context of peacekeeping operations be safeguarded in the light of the jurisdictional immunity of the United Nations?
The structure of the thesis is as follows: the first chapter focuses on the international responsibility for human rights breaches in peacekeeping operations under the auspices of the UN. In the context of the thesis, the term peacekeeping operations will be used in the broad sense referring to “classical consensual missions to Chapter VII peace enforcement missions”.11
Reference will be made to the Draft Articles on the Responsibility of International Organisations (DARIO), which will be applied to peacekeeping operations to determine whether the UN or the troop-contributing state(s) is responsible for the conduct in the peacekeeping operation. In determining whether there is also room for a third possibility, being shared responsibility between the UN and the troop-contributing state(s), case-law of the European Court of Human Rights (ECtHR) will be analysed. The case-law will only be scrutinised to the extent that it is relevant for showing the developments pertaining to responsibility in the context of peacekeeping operations. It is important to first outline the ramifications of international responsibility, since if only the UN is responsible for breaches of human rights, as opposed to the troop-contributing state(s), its jurisdictional immunity comes into play. The focus will be on the establishment of international responsibility, rather than its content and implementation.
8 See: US District Court for the Southern District of New York, 2016, Georges v. United Nations. 9 SG/SM/14828, 2013.
10 Krieger, 2016, p. 260. 11 Dannenbaum, 2010, p. 115.
The second chapter revolves around the question as to how the immunity of the UN can impact the right of access to court, as enshrined in article 6 of the European Convention on Human Rights (ECHR). This chapter pertains to the immunity of the UN as an organisation (and to a lesser extent that of its officials) to the extent that it is relevant for the impediment it can form for potential claimants and their right of access to court. To this end, the focus will be on immunity from jurisdiction and not, for example, immunity from enforcement.
The third chapter is devoted to procedures and remedies that are available to victims whose human rights have been breached in the context of peacekeeping operations, both at the level of the UN and that of the state. It non-exhaustively considers the available procedures and analyses their suitability and potential, before examining whether and which other methods of dispute-resolution can provide justice to victims.
The thesis will end with a conclusion that will provide an overarching view and an answer to the abovementioned research question.
1.3 Methodology
The research object of this thesis is the immunity of the UN, insofar as it forms an impediment for the right of access to court of individuals whose human rights have been breached in peacekeeping operation under UN auspices. To answer the research question and the corresponding sub questions, this thesis examines the relevant issues from an internal perspective.
This thesis largely uses a descriptive approach in describing the status quo concerning the immunity of the UN and its manifestation in practice. To this end, reference will be made to lex
lata, such as the UN Charter, the Convention on the Privileges and Immunities of the UN
(hereafter: General Convention) and the Convention on the Privileges and Immunities of the Specialised Agencies (hereafter: Specialised Agencies Convention), as well as several Security Council (UNSC) resolutions. However, the thesis also touches upon lex ferenda, such as the DARIO, which have not yet acquired the status of binding law. This is reflective of the normative approach that is also taken, since this thesis departs from the stance that the status quo is unsatisfactory as the absolute immunity of the UN deprives potential claimants from their right of access to court, but to that end has a prescriptive character as it tries to offer recommendations as to how this right can be safeguarded. The arguments will be supported by scholarly articles
that touch upon the relevant issues. In addition to this, jurisprudence from the ECtHR and other courts will be analysed to show the approaches that the courts espouse, as well as to show the development of the relevant doctrines.
The limitations of the thesis are reflected in the fact that this topic is a politically sensitive one that is subject to much debate and development. As the UN is a very powerful organisation which has an interest in upholding its immunity, an alteration of its policy in the near future is not foreseeable. However, to that end that states can play in the process of change is emphasised.
Chapter 2: International responsibility for human rights breaches in
peacekeeping operations
2.1 Introduction
The principle that a breach of international law brings about responsibility and the obligation to make some form of reparation12 is premised upon international legal personality.13 This chapter focuses on international responsibility, and more specifically the question whether certain misconduct in peacekeeping operations can be attributed to the UN or to states acting on behalf of it, and therefore whether the former or the latter (or both, in the case of shared responsibility) are internationally responsible for said misconduct. The relevant provisions of the DARIO, to the extent that they can offer guidance on this matter, will be analysed. Furthermore, reference will be made to case-law of the ECtHR, namely the cases of Behrami and Al-Jedda, which both concerned multinational operations under UN auspices. The judgements will be analysed insofar as they display developments in the discussed concepts, such as multiple attribution. The concept of shared responsibility will also briefly be touched upon.
2.2 The DARIO and the elements of international responsibility
In 2011 the International Law Commission (ILC) adopted the DARIO, which were written in analogy to the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) and hence largely contain the same structure. Even though the DARIO do not have the same authoritative status as the well-established ARSIWA and are not legally binding on international organisations, they still provide a relevant framework for the study of the international responsibility of international organisations. In addition, they play a pertinent role in judicial practice which is expected to be enhanced even more, as their reception by the addressees will start to grow. To this end, it is important to underline that, for the time being, the DARIO primarily reflect lex feranda rather than lex lata.
12 See: ICJ, The factory at Chorzow (claim for indemnity), Germany v. Poland, 1929, p. 21: “It is a principle of
international law that the breach of an engagement involves an obligation to make reparation in an adequate form.”
13 Nowadays it is commonly accepted that international organisations possess international legal personality.
The starting point of the DARIO is article 3, according to which “[e]very internationally wrongful act of an international organization entails the international responsibility of that organization”.14 The DARIO then continues to set out the elements of an internationally
wrongful act.
The first element that needs to be fulfilled in order for an international organisation to incur international responsibility, is the breach of an obligation that exists under international law, either by an act or by an omission.15 International organisations are “bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties”.16 The specific content of these obligations incumbent upon international organisations pertains to primary rules rather than secondary rules. 17 However, the focus in this chapter is mainly on the latter and therefore mainly on the second element constituting an internationally wrongful act.
The second element of international responsibility is met if the internationally wrongful act is attributable to the international organisation under international law.18 When organs of the international organisation in question have acted, or failed to act, their conduct will automatically be attributable to the international organisation. Acts of agents, being persons or entities through whom the organisation acts, pursuant to the broad definition given by the ILC19, are also
attributable to the international organisation.20 This definition of agents also covers private contractors who perform a specific task on behalf of the organisation. In the context of the UN, all persons acting for the UN “on the basis of functions conferred by an organ of the organization”21 will constitute as agents, and therefore it does not matter whether these persons
in question have the status of UN officials. However, it must be noted that ultra vires conduct of
14 DARIO, 2011, art. 3.
15 DARIO, 2011, art. 4: “There is an internationally wrongful act of an international organization when conduct
consisting of an action or omission ... constitutes a breach of an international obligation of that organization.”
16 ICJ Advisory Opinion, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory
Opinion, ICJ Reports 1980, 73, pp. 89-90, para. 37.
17 Klein, 2016, p. 1035.
18 DARIO, 2011, art. 4: “There is an internationally wrongful act of an international organization when conduct
consisting of an action or omission is attributable to that organization under international law …”
19 DARIO, 2011, art. 2(d): “… an official or other person or entity, other than an organ, who is charged by the
organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts.”
20 See: DARIO, 2011, art. 6.
an agent is not attributable to the organisation, yet ultra vires conduct of an organ is attributable to the organisation.22
2.3 Attribution in peacekeeping operations
The UN depends on member states to place their contingents at its disposal for performing its operational activities.23 With regard to attribution, a distinction can be made between situations in which an organ of a state is fully placed at the disposal of the international organisation and therefore is transformed into an organ of the organisation, and situations in which the organ in question also, to a certain extent, acts as organ of the state. In the former situation, the organ’s conduct is attributable to the international organisation only, which is expressed in article 6 of the DARIO that is premised on the unity of the international organisation as a legal person.24 This manifests itself in operations which are authorised by the UNSC, entailing that the powers under Chapter VII are lawfully delegated to the member states. These operations are therefore under the exclusive command and control of the UN.25 However, in the latter situation, which for example occurs in the context of peacekeeping operations, the question of attribution can form a problem. This has to do with the fact that a state retains some powers and thus some control over its national contingents when these are placed at the disposal of the UN for a peacekeeping operation, being control over disciplinary and criminal matters.26 The criterion that is central in this regard, is stipulated by article 7 of the DARIO:
The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.27
The central element of above provision lays in the factual control that is exercised over the act or omission in question by the organ or agent that is placed at the receiving’s organisation’s disposal. The determinant factor with regard to joint operations has been held to be the effective
22 DARIO, 2011, Commentary on art. 6, para. 7. 23 Ryngaert, 2012, p. 151.
24 DARIO, 2011, art. 6(1): “The conduct of an organ or agent of an international organization in the performance of
functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization.”
25 A/51/389, p. 6, para. 17.
26 DARIO, 2011, Commentary on art. 7, para. 1. 27 DARIO, 2011, art. 7.
control over the conduct in question: the party that exercises effective control, is the party whom the conduct can be attributed to. This shows the strong linkage between control and attribution.28
As stated in a Report of the Secretary-General:
In joint operations, international responsibility for the conduct of the troops lies where operational command and control is vested according to the arrangements establishing the modalities of cooperation between the State or States providing the troops and the United Nations. In the absence of formal arrangements between the United Nations and the State or States providing troops, responsibility would be determined in each and every case according to the degree of effective control exercised by either party in the conduct of the operation.29
We can hereby see the dichotomy between cases in which acts are automatically considered to be attributable to the UN, as expressed in article 6 of the DARIO, and acts which are subjected to the test of effective control, which is stipulated by article 7 of the DARIO. Article 6 of the DARIO, therefore, regulates attribution based on the status of an organ: according to this article, acts of peacekeeping forces which are fully seconded to the UN and therefore seen as its organs, are exclusively attributable to the UN. Article 7 of the DARIO, on the other hand, applies to organs “which are not fully seconded to an international organisation, such as national troops placed at the disposal of the UN for conducting peacekeeping operations”30 as they are characterised by states maintaining a certain degree of control over their national contingents.31 By having this dichotomy in place, the ILC tried to establish a test that was to a greater extent based upon control rather than agency.32
A case that deals with the attribution of the wrongful act to the international organisation vis-à-vis states, is the case of Behrami and Behrami v. France before the ECtHR.
28 Klein, 2016, p. 1032. 29 A/51/389, 1997, p. 6, para. 18. 30 Krieger, 2016, p. 269. 31 Sari, 2008, p. 160. 32 Den Heijer, 2013, p. 37.
2.4 Behrami and Behrami v. France
In 2007 the Grand Chamber of the ECtHR delivered a judgement in the cases of Behrami and
Behrami v. France and Saramati v. France, Germany and Norway, which were taken together,
yet this section merely focuses on the former. This case arose in the context of the international territorial administration of Kosovo succeeding the conflict that had broken out in 1998. Following this conflict, the UNSC adopted UNSC Resolution 1244 under Chapter VII of the UN Charter in 1999. This resolution was to ensure that both an international civil presence and an international security presence were to be established.33 Consequently, the UN Interim Administration Mission in Kosovo (UNMIK), as a subsidiary organ, assumed the role of the international civil presence, whereas the international security presence was embodied by Kosovo Force (KFOR): an international security force led by the North Atlantic Treaty Organisation (NATO).34
The events of the Behrami case took place in 2000 in the sector of Kosovo for which a multinational French-led brigade, which was part of KFOR, was responsible. A group of boys, including brothers Gadaf and Bekir Behrami, were playing with unexploded cluster bombs, which had been dropped by NATO in the preceding year. One of the unexploded submunitions exploded, which killed Gadaf and seriously injured Bekir.35 Consequently, their father Agim Behrami took the case to the ECtHR, complaining under article 2 of the ECHR that the death and injuries of the children had been caused by the failure of French KFOR troops to mark or defuse unexploded cluster bombs while knowing of their existence.36 Consequently, the troops had allegedly failed to respect the provisions of UNSC Resolution 1244 relating to mine clearance.37
The question that was up for examination by the Court was whether it had jurisdiction to scrutinise the role played by the states present in these missions that were effectively in control of Kosovo, in light of the ECHR. It essentially had to judge whether it was “competent to examine under the Convention those States’ contribution to the civil and security presences
33 S/RES/1244, 1999, p. 2, para. 5. 34 Sorathia, 2011, p. 272.
35 ECtHR, Behrami and Behrami v. France, 2007, p. 4, para. 5. 36 ECtHR, Behrami and Behrami v. France, 2007, p. 20, para. 61. 37 ECtHR, Behrami and Behrami v. France, 2007, p. 4, para. 7.
which did exercise the relevant control in Kosovo”.38 Therefore, the dispute revolved around the
question as to whom the acts and omissions, which the applicant complained about, should be attributed.39
The Grand Chamber of the ECtHR reached the conclusion that the application had to be declared inadmissible on the ground that the impugned acts were not attributable to France, but to the UN. This was premised on the assertion that “the UNSC retained ultimate authority and control so that operational command only was delegated”.40 In other words: as the deployment of KFOR
had been authorised by UNSC Resolution 1244, the UN exercised “ultimate authority and control” over the operation, meaning that the conduct of the troops constituting KFOR were therefore attributable to the UN.41 In respect of UNMIK, the Court noted that it was a subsidiary organ of the UN and therefore found its acts and omissions fully attributable to the UN.42 The case was therefore outside the competence of the Court to review ratione personae.43
The decision met with a lot of criticism. First, the Court steered away from the principle of effective control held within article 7 of the DARIO, and instead applied a broader standard of attribution, namely “ultimate authority and control”. Whereas the latter concept focuses on the institutional chain of command and formal overall control, the former focuses on the operational control that is exercised over the conduct in question.44 In other words: in its decision, the Court
equated delegation, based on Chapter VII of the UN Charter, and attribution.45
Second, a commonly voiced criticism referred to the fact that the possibility of multiple attribution was ignored. The Court considered that attribution of the misconduct to the UN excluded attribution to France. Hence, it did not consider the question why the same action, or inaction, could not be attributable to both the UN and France. After all, national contingents put at the disposal of the UN for peacekeeping operations play a dual role, both in their international
38 ECtHR, Behrami and Behrami v. France, 2007, p. 23 para. 71. 39 ECtHR, Behrami and Behrami v. France, 2007, p. 35, para. 121. 40 ECtHR, Behrami and Behrami v. France, 2007, p. 39, para 133. 41 Klein, 2016, p. 1032.
42 This argument is premised upon article 6 of the DARIO. 43 ECtHR, Behrami and Behrami v. France, 2007, p. 44, para. 152. 44 Den Heijer, 2013, pp. 34-35.
capacity as in their national capacity.46 The possibility of multiple attribution was also raised by
the Venice Commission.47
Finally, the decision was criticised for the limited application of the equivalent protection doctrine. This doctrine was coined in the case of M & Co. v. Germany48, and hence paved the way for the doctrine of equivalent protection in its present form, as shaped by the 2005 judgement in the Bosphorus case. Under this doctrine
[s]tate action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides ...49
The implications of this doctrine are that if the international organisation to which a state has transferred competences does not ensure the equivalent protection of the rights that are set out in the ECHR, the state becomes liable for a violation of the international organisation. Applying this doctrine in the Behrami case would have entailed the responsibility of France for the conduct in question. However, in this case the Court asserted that the equivalent protection doctrine only applies when a state acts in compliance with its obligations flowing from its membership of an international organisation, under the condition that the acts are attributable to the state.50 However, since in this case the acts were attributed to the UN and not to France, the Court held that the doctrine did not apply. Arguably, this is contrary to article 61 of the DARIO,51 which is aimed at “pierc[ing] the veil of the organization”.52
46 Sari, 2008, 161.
47 European Commission for Democracy through Law (“Venice Commission”), 2004, p. 18, para. 79: “Not all acts by
KFOR troops which happen in the course of an operation “under the unified command and control” ... of a NATO Commander must be attributed in international law to NATO but they can also be attributed to their country of origin ...”
48 European Commission of Human Rights, M & Co. v. Germany, 1990: “… the transfer of powers to an
international organization is not incompatible with the Convention provided that within that organization fundamental rights will receive an equivalent protection.”
49 ECtHR, Bosphorus v. Ireland, 2005, p. 31, para. 155.
50 ECtHR, Behrami and Behrami v. France, 2007, p. 42, para. 145.
51 DARIO, 2011, art. 61(1): “A State member of an international organization incurs international responsibility if,
by taking advantage of the fact that the organization has competence in relation to the subject-matter of one of the State’s international obligations, it circumvents that obligation by causing the organization to commit an act that, if committed by the State, would have constituted a breach of the obligation.”
2.5 Al Jedda v. UK
The ECtHR distinguished the Behrami case when its Grand Chamber provided a judgement in the case of Al-Jedda v. UK in 2011. This case concerned the interment without charge of the British national Al-Jedda. The internment took place between 2004 and 2007 in a detention centre in Iraq that was run by British forces.53 The applicant claimed before the Court that his detention was in breach of article 5(1) of the ECHR.54 However, the United Kingdom put forward two arguments against this claim. First, it held that that the detention was not attributable to the United Kingdom, but instead to the UN, encompassing that the detention did not fall within the jurisdiction of the United Kingdom pursuant to article 1 of the ECHR.55
The second argument held that the preventive detention was in line with UNSC Resolution 1546. This resolution stipulated that the multinational force under unified command that had been established under UNSC Resolution 151156 could take all necessary measures in support of the security and stability in Iraq, including the detention of individuals suspected of terrorism.57 To that end, in accordance with article 103 of the UN Charter58, obligations under the UN Charter as well as obligations arising from resolutions that have been adopted under Chapter VII allegedly prevail over and therefore override obligations that arise under other conventions, such as the ECHR.59
In taking this approach, the United Kingdom made references to the Court’s decision in the Behrami case and emphasised the similarities between both situations.60
In its judgement, the Court disregarded the arguments that the United Kingdom had put forward. First, the Court argued that the detention took place in an area that was controlled exclusively by British forces and consequently the applicant was “within the authority and
53 ECtHR, Al-Jedda v. UK, 2011, p. 3, paras. 10-11.
54 ECHR, 1950, art. 5(1): “Everyone has the right to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure prescribed by law …”
55 ECHR, 1950, art. 1: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Convention.”
56 S/RES/1511, 2003, para. 13: “… authorizes a multinational force under unified command to contribute to the
maintenance of security and stability in Iraq …”
57 S/RES/1546, 2004, para. 10.
58 UN Charter, 1945, art. 103: “In the event of a conflict between the obligations of the members of the United
Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
59 A/CN.4/L.682, 2016, p. 168, para. 331.
control of the United Kingdom throughout”.61 As a result, the applicant fell under the jurisdiction
of the United Kingdom under article 1 of the ECHR.62
Second, the Court held that, based on article 7 of the DARIO, the UN did not exercise effective control nor ultimate authority and control over the conduct of the troops constituting the multinational force, meaning that the applicant’s interment was not attributable to the UN.63 In
arguing this, it distinguished the Behrami case on the facts instead of overruling its previous decision.64 In doing so, for the first time the Court opened up the possibility for dual attribution or multiple attribution by arguing that the attribution of acts of troop-contributing states to the UN does not exclude the attribution of said acts to the troop-contributing nations.65
Third, the Court argued that the ECHR cannot be displaced by virtue of article 103 of the UN Charter, by coining an interpretative presumption.66 This interpretative presumption holds that, as one of the main purposes of the UN is protecting and promoting human rights and freedoms, we can presume that the UNSC does not wish for states to act in breach of human rights law when it adopts a resolution, unless it explicitly states in its resolutions that states should take measures in violation of human rights law. Therefore, if it means to mandate a state to act contrary to human rights, such an authorisation must be worded explicitly.67 In the event of ambiguity, the interpretation which is in line with the fundamental principles of human rights that the UN adheres to, must be chosen. As the UNSC did not lay down the obligation for states to detain individuals without charge in UNSC Resolution 1511, there was no conflict between the obligations of the United Kingdom under the UN Charter and under the ECHR, meaning that article 103 did not come into play.
61 ECtHR, Al-Jedda v. UK, 2011, p. 52, para. 85. 62 ECtHR, Al-Jedda v. UK, 2011, p. 47, para. 75. 63 ECtHR, Al-Jedda v. UK, p. 52, para. 84.
64 The Court argued, among others, that the fact that United Nations organs expressed its disapproval of the
detention of the applicant meant that the detention could not be attributed to the United Nations. See: ECtHR, Al-Jedda v. UK, p. 41, para. 82.
65 ECtHR, Al-Jedda v. UK, p. 50, para. 80. 66 Canto Lopez, 2013, p. 214.
2.6 Shared responsibility
An important consideration in viewing attribution in the light of the effective control test, is the assertion that engagement in international activities should not lead to states trying to evade responsibility for their acts or omissions.68 In that light, it is desirable to keep the possibility for dual or multiple attribution, which the ECtHR did in its decisions in cases such as the Al-Jedda case and the Nuhanovic case. The possibility for multiple attribution is also stipulated in article 48 of the DARIO, which holds that:
Where an international organization and one or more States or other international organizations are responsible for the same internationally wrongful act, the responsibility of each State or organization may be invoked in relation to that act.69
The concept of multiple attribution provides a ground for shared or joint responsibility. This is an umbrella concept that refers to the separate allocation of responsibility between multiple actors who have contributed to a single harmful outcome, where it is not possible to determine individual causal contributions.70 Shared responsibility and shared liability as its corollary can be
advantageous for claimants, as the opportunities for redress are enlarged since multiple wrongdoers will have to provide reparation.71 However, the law and legal literature underlying
the concept of shared responsibility are still rather undeveloped and therefore do not provide clear guidance on this matter. It is nevertheless important to underline the growing significance of this concept.
68 ECtHR, Al-Jedda v. UK, 2011, p. 45, para. 69. 69 DARIO, 2011, art. 48(1).
70 Nollkaemper & Jacobs, 2012, pp. 366-368. 71 Boon, 2016, p. 383.
Chapter 3: The immunity of the United Nations vis-à-vis the right of access to
court
3.1 Introduction
Establishing to whom certain misconduct can be attributed – the UN or the troop-contributing state(s) – may solve the accountability gap, but not necessarily the problem of victims trying to get access to court, as illustrated by the Haiti cholera case. As Krieger asserts:
[A]ny development in the rules of attribution will only lead to effective legal redress if a legal basis for compensation of a State’s activities during military operations can be established under international or domestic law and will be heard by a domestic court.72
Especially the latter part is problematic with reference to the immunity of the UN before domestic courts. This chapter will focus on the immunity of the UN and the rationales behind it. In addition to that, it will discuss the impact of the immunity of suit on potential claimants and their right of access to court, as encapsulated in article 6 of the ECHR.
3.2 The immunity of the United Nations
The immunities and privileges of the traditional subjects of international law, being sovereign states and their representatives, have been well-embedded in international law for centuries. However, only from the nineteenth century onwards, as the quantity and prominence of international organisations started to grow, did the sentiment develop that the endowment of immunities and privileges should also be extended to international organisations, including the UN.
The scope of jurisdictional immunity may differ per organisation. However, the standard of immunity encapsulated in the UN Charter is functional immunity73 or: immunity rationae
materiae.74 According to the functional necessity rationale, the immunity of international organisations should only stretch as far as necessary for the international organisation and its functionaries to be able to exercise the functions entrusted to them.75 In theory, the standard of
72 Krieger, 2016, p. 271.
73 UN Charter, 1945, article 105(1): “The Organization shall enjoy in the territory of each of its Members such
privileges and immunities as are necessary for the fulfilment of its purposes.” Note that the immunity according to the UN Charter is functional and not absolute.
74 Boon, 2016, p. 362. 75 Klabbers, 2015, p. 131.
functional immunity can be contrasted with the standard of absolute immunity, which is enshrined in the General Convention76 and the Specialised Agencies Convention.77 Nevertheless,
as Reinisch argues, due to the vagueness of the concept of functional immunity and a lack of uniform definition, it is often to be perceived and used as de facto absolute immunity as well. After all, as some argue that all acts of international organisations are either official or ultra
vires, the consequence would be that functional immunity would amount to absolute immunity in
practice.78
There are several rationales that support the grant of absolute immunity to the UN.
First, there is a belief that applying domestic law would lead to a undue direct or indirect interference in the functioning and internal affairs of the organisation and hence in an impediment thereof.79 This ties in with the lack of faith in certain national courts.80 This functional-independence rationale, as Schmalenbach calls it, is expressed in article 105 of the UN Charter and has found its manifestation in several court decisions, such as in the case of
Stichting Mothers of Srebrenica v. The Netherlands:
To bring such operations within the scope of domestic jurisdiction would be to allow individual States, through their courts, to interfere with the fulfilment of the key mission of the United Nations in this field including with the effective conduct of its operation.81
Second, the absolute immunity of the UN before domestic courts is upheld on the basis of the assertion that subjecting states to a higher liability risk could lead to an erosion of their willingness to contribute their troops to operations.82
76 UN Charter, 1945, article 105(1): “The Organization shall enjoy in the territory of each of its Members such
privileges and immunities as are necessary for the fulfilment of its purposes.” Note that the immunity according to the UN Charter is functional and not absolute.
77 Specialised Agencies Convention, 1949, Article 3(4): “The specialized agencies, their property and assets,
wherever located and by whomsoever held, shall enjoy immunity from every form of legal process [emphasis added] except in so far as in any particular case they have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.”
78 Reinisch, 2016, p. 158. 79 Schmalenbach, 2015, p. 315. 80 Blokker, 2013, p. 272.
81 ECtHR, Stichting Mothers of Srebrenica et al. v. The Netherlands, 2013, p. 41, para. 154. 82 Krieger, 2016, p. 269.
3.3 The right of access to court
As the Haiti cholera case shows, the implications of having absolute immunity in place is that potential claimants cannot pursue claims against international organisations and are therefore deprived of their right to access.83 The right of access to court is a right that is enshrined or can be interpreted to be contained in the major human rights instruments, such as the Universal Declaration of Human Rights (UDHR),84 the International Covenant on Civil and Political Rights (ICCPR), as well as the ECHR. In the ECHR, the right to a fair trial, which is enshrined in article 6(1),85 also embodies the right of access to court, which was expressly endorsed by the ECtHR in a number of judgements. The Court has held that “the right of access, that is the right to institute proceedings before courts in civil matters constitutes one aspect only [of the right to a court]”.86 In other words: for the right to a fair trial to be effective, the right to have a trial in the
first place should also exist.
The right of access to court is also stressed in the Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”87 (hereafter: Basic Principles and
Guidelines). The Basic Principles and Guidelines stipulate that victims, defined as
persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of IHRL, or serious violations of IHL88
have the right to equal and effective access to justice, adequate, effective and prompt reparation for harm suffered, and access to relevant information concerning violations and reparation
83 Reinisch, 2016, p. 160.
84 Note that the UDHR is not legally binding, but instead has acquired the status of customary law. In addition to
that, it has strongly influenced the drafting and content of other human rights treaties, including the ICCPR and the ECHR.
85 ECHR, 1950, article 6(1): “In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
86 ECtHR, Waite and Kennedy v. Germany, 1998, pp. 11-12, para. 50.
87 The Basic Principles and Guidelines are held within resolution A/Res/60/147, adopted by the UNGA in 2005. 88 A/Res/60/147, 2005, p. 5, section V, para. 8.
mechanisms.89 The Basic Principles and Guidelines are based on the premise that the right to a
remedy is very dependent on the primary, substantive right that has been breached, which leads to responsibility and the need for reparation. The question whether a victim can claim reparation depends on whether responsibility exists towards the victim, whether he/she has rights and whether the obligations are owed towards him/her. It must also be noted that it is not enough to grant rights to protected persons and to impose responsibilities and duties upon states: protected persons must also be furnished with the support they require to obtain their rights and to
effectively be granted with access to justice. To that end, it is also important to underline that the right of access to court is only the first step for an aggrieved individual towards being provided with reparation.
The Basic Principles and Guidelines are not legally binding,90 meaning that they do not constitute rights under international law which individuals can rely upon before domestic courts.91 Therefore, they cannot be said to reflect a change in the jurisprudence, but they do reflect a willingness to endow victims of human rights violations with means to get remedied, which can effectively only happen if they acquire access to justice. Hereby reference can be made to the maxim ubi jus, ibi remedium.92
89 A/RES/60/147, 2005, p. 6, section VII, para. 11.
90 A/Res/60/147, 2005, p. 3, preamble: “Emphasizing that the Basic Principles and Guidelines contained herein do
not entail new international or domestic legal obligations …”
91 Krieger, 2016, p. 273. 92 Boon, 2016, p. 349.
Chapter 4: Appropriate procedures and remedies at the international and
national level
4.1 Introduction
As the Haiti cholera case shows, the invocation of the jurisdictional immunity of the UN has become increasingly disputable in the light of the hindrance it might form for the right of access to court.93 After all, nowadays international organisations are not solely seen as “good-doers” anymore, but in some cases they have assumed the role of “wrongdoers”.94 Therefore, this chapter departs from the statement that the immunity granted to the UN can hamper the right of access to court and hence focuses on the means and methods that are available for victims to get redress. Procedures at the level of the UN as well as at the level of the state will be outlined and analysed. Thereafter, other possible procedures and fora will be suggested.
4.2 Procedures and remedies at the level of the United Nations 4.2.1 Waiver of immunity
The UN has built in a few procedures that are supposed to limit the detrimental effects of its jurisdictional immunity, or to address the “denial of justice problem”, as Blokker calls it.95 One
of these is the waiver: the Secretary-General (or the specialised agencies themselves) can waive the immunity of its personnel, if the immunity would happen to “impede the course of justice”, as is enshrined in the General Convention and the Specialised Agencies Convention.96 However,
the waiver of immunity is not well-embedded in practice, save for cases of gross misconduct, such as sexual crimes, material damage and other serious human rights violations or serious crimes committed in the context of peace operations.97 Investigations in these cases typically are conducted by a so-called Board of Inquiry (BOI), which then passes a non-binding recommendation on the possible waiver of immunity.98
93 Ryngaert & Schrijver, 2015, p. 221. 94 Blokker, 2013, p. 261.
95 Blokker, 2013, p. 264.
96 General Convention, 1946, article V, section 20; Specialised Agencies Convention, 1949, article VI, section 22. 97 Schrijver, 2013, p. 593.
See: A/CN.4/L.383 and Add. 1-3, 1985, p. 162, Chapter 2, Section 8.
4.3.2 Standing claims commissions
The General Convention contains a clause that holds that provisions for appropriate models of settlement have to be made in cases of “disputes involving any official of the UN who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General”.99 Since the article does not define what appropriate models of settlement of third party
claims are, this must be considered on a case by case basis. An example of this, however, is the establishment of standing claims commissions with the aim of dealing with claims filed by victims, which due to the immunity of the UN could not have been submitted to domestic courts. This possibility has been brought forward in the model status-of-forces agreement (SOFA), of which tailored versions are to be concluded between the UN and the host states for every specific peacekeeping operation.100 As envisaged by the SOFA, a standing claims commission would be composed of one member appointed by the UN, one member appointed by the host state, and one member, being the chairman, appointed jointly by both of the mentioned parties or in case of a disagreement, by the President of the International Court of Justice (ICJ).101 However, standing claims commissions, as envisioned by the SOFA, have never been established.102
It must be noted that the jurisdiction of standing claims commissions is limited to claims of a private law character, which can be opposed to claims of a public international law character.103 The General Convention does not provide a definition of claims of a private law character, but its meaning can be derived from an early commentary on Section 29:
99 General Convention, 1946, article VIII, section 29(b).
100 United Nations Secretary-General report A/45/594, 1990, art. 51: “... any dispute or claim of a private law
character to which the United Nations peace-keeping operation or any member thereof is a party and over which the courts of (host country/territory) do not have jurisdiction because of any provision of the present Agreement, shall be settled by a standing claims commission to be established for that purpose. ...”
101 United Nations Secretary-General report A/45/594, 1990, art. 51: “... One member of the commission shall be
appointed by the Secretary-General of the United Nations, one member by the Government and a chairman jointly by the Secretary-General and the Government. If no agreement as to the chairman is reached within thirty days of the appointment of the first member of the commission, the President of the International Court of Justice may, at the request of either the Secretary-General of the United Nations or the Government, appoint the chairman.”
102 Schmalenbach, 2015, p. 320.
103 General Convention, 1946, section 29: “The United Nations shall make provisions for appropriate modes of
settlement of: (a) disputes arising out of contracts or other disputes of a private law character [emphasis added] to which the United Nations is a party; ...”
[I]t was observed that this provision applied to contracts and other matters incidental to the performance by the Agency of its main functions under its constitutional instruments and not to the actual performance of its constitutional functions.104
This can be explained to mean that all claims of a public international law character, being claims that involve the examination of UN policy matters or are related to decisions of the General Assembly (UNGA) or the UNSC,105 are to be excluded from the scope of Section 29 of the General Convention, and hence are not eligible for alternative dispute settlement. What sets claims of a public international law character apart from claims of a private law character, which do fall under the scope of Section 29, is the fact that the former are “based on the harmful effects of policy decisions by UN organs as well as damage linked to a particular form or manner in which these decisions are implemented on the ground”.106 Since aggrieved individuals are not
endowed with rights under the UN Charter, they cannot, unlike wronged member states, pursue claims based on breaches of the UN Charter or pertaining to the mandate or implementation policy of the UN. Even so, it must be noted that claims of a mixed nature, that is claims that are based on both a tort and a breach of an international obligation, to be labelled as “hybrid claims”, can also be admissible to alternative dispute settlement, since they can be reviewed solely on the general principles of tort law.107 However, the fact that Section 29 in all cases excludes claims of a public international law character, in connection to which it must be noted that the UN unilaterally decides on the legal nature of which, clearly shows that there is a dispute settlement gap.
Abovementioned problem was also present in the case of Haiti, where victims had tried to get compensation by launching a complaint under the applicable SOFA.108 However, the UN refused to compensate the victims, as it argued that the claims “would necessarily include a review of political and policy matters”109 and would therefore not be receivable in accordance
104 Beckett, 1947, p. 12, para. 32. 105 Boon, 2016, p. 356.
106 Schmalenbach, 2015, p. 321. 107 Schmalenbach, 2015, p. 322.
108 Agreement Between the United Nations and the Government of Haiti Concerning the Status of the United
Nations Operation in Haiti, para. 55: “… any dispute or claim of a private-law character, not resulting from the operational necessity of MINUSTAH, to which MINUSTAH or any member thereof is a party and over which the courts of Haiti do not have jurisdiction because of any provision of the present Agreement shall be settled by a standing claims commission to be established for that purpose. …”
with Section 29 of the General Convention. The reasoning behind this is essentially, as explained before, that
allowing third party claims against the UN which are exclusively of a public international law character would hamstring the UN’s political and operational capacities because it would ultimately put every UN policy decision and its implementation under the threat of constant dispute settlement negotiations and, as the case may be, third party adjudications.110
In short, the fact that the General Convention contains a provision that sketches the possibility of a dispute settlement procedure, does not mean that in reality it is successful in bypassing the absolute immunity of the UN. Even if a standing claims commission is set up, it can still be subject to several pitfalls.
First, the maximum amount that can be compensated “resulting from or attributable to the activities of members of peacekeeping operations in the performance of their official duties” is limited by UNGA Resolution 52/247.111
Second, in the case of claims that have arisen from so-called operational necessity, “where damage results from necessary actions taken by a peacekeeping force in the course of carrying out its operations in pursuance of its mandates”,112 liability is not engaged. Operational
liability can constitute different things in different situations, which makes this a difficult concept that is susceptible to different interpretations.
Third, the impartiality of a standing claims commission is disputable and can arguably not be guaranteed, since the members of the commission are all appointed by the UN itself.113
4.2.3 Dispute settlement for staff members
Another dispute settlement mechanism at the UN level that is worth referring to, is the UN Dispute Tribunal. This tribunal enables current and former staff members of the United Nations to bring legal proceedings that relate to tort or employment issues. However, as it is only competent to settle staff disputes, this administrative tribunal is not accessible for third parties,
110 Schmalenbach, 2015, p. 323-324. 111 A/RES/52/247, 1998.
112 UN Secretary-General report A/51/389, 1996. 113 Schrijver, 2013, p. 592.
not having a link with the UN, whose human rights have nevertheless been infringed upon by acts of the UN.114 This hampers its accessibility in cases such as the Haiti cholera case.
4.3 Procedures and remedies at the national level
When victims are not able to get compensation for harm that has been incurred to them through procedures that are set up by the UN itself, their tendency is often to turn to the national state, and most notably national courts, in order to seek redress. This section will discuss two manners in which victims can seek redress at the national level, through their domestic court.
4.3.1 Reasonable alternative means test
Oftentimes, victims of human rights violations turn to domestic courts in their search for a remedy. However, there is some discussion as to whether states have the obligation to safeguard the right of access to court when this right is infringed upon by an international organisation. Judgements in favour of the proposition that states should step in, are often based on the landmark cases of Waite and Kennedy v. Germany and Beer and Regan v. Germany, that paved the way for an altered view on immunity vis-à-vis the right of access to court.
In the Waite and Kennedy case, the ECtHR recognised that the right of access to court, as enshrined in article 6 of the ECHR, can be limited by the immunity of international organisations. However, it introduced a proportionality test, arguing that the limitations should pursue a legitimate aim, be proportionate in relation to the aim sought to be realised, and “not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired”.115 In this context, the availability of reasonable alternative
means to get access to court was remarked upon.116 This case has been used by domestic courts in Belgium, France and Italy as a basis on which they have denied immunity to international organisations in disputes that were related to employment, if application of the immunity would deprive claimants of their right of access to court due to a lack of an alternative legal remedy.117
114 Reinisch, 2016, p. 1061.
115 ECtHR, Waite and Kennedy v. Germany, p. 13, para. 59.
116 ECtHR, Waite and Kennedy v. Germany, p. 15, para. 68: “For the Court, a material factor in determining whether
granting ESA immunity from German jurisdiction is permissible is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention.”
The reasoning of the plaintiffs in the Haiti cholera case suggests that the abovementioned jurisprudence concerning employment-related disputes should also be extended to disputes over peacekeeping operations. In this line of reasoning, the fact that the UN failed to provide an alternative means of dispute settlement for claims arising from the context of the cholera outbreak, would entail that it should be stripped of its immunity before domestic courts.
If a domestic court adheres to this notion that was stipulated in the case of Waite and Kennedy v.
Germany, it means that the court in question also has to review whether, if an aggrieved
individual can in theory get access to justice, this right is also effective.118 In other words: the mere existence of alternative ways of redress would not be sufficient.119 This entails that a domestic court will possibly have to review existing intra-organisational procedures and pass a judgement on whether these will effectively enable an individual to have access to court and whether they meet the standard that is set by article 6 of the ECHR. However, domestic courts are often hesitant to put these internal complaints mechanisms under scrutiny, and will typically be more willing to find a violation of article 6 of the ECHR when there is no internal complaint mechanism in place in the first place.120 Either way, two possibly conflicting obligations need to be assessed and weighed against each other, being the obligation to comply with human rights law on the one hand, and the obligation to comply with the laws that stipulate the immunity of international organisations before domestic courts on the other hand. Parallel are the two conflicting interests, namely of the claimant and the international organisation.121 In this line of
reasoning, we can say that even though the ECHR does not directly impose obligations upon the UN since it is not a contracting party, it still exerts pressure on the UN to provide means of dispute settlement that meet the standard stipulated by article 6 of the ECHR. 122 If the UN does not do this, then the state has to make sure that this right can be effectively enjoyed by individuals. It should do this by stripping the UN off its jurisdictional immunity, since the victim should be able to exercise his or her right of access to court somewhere, as well as by reviewing
118 ECtHR, Kutic v. Croatia, para. 25: “The Convention is intended to guarantee not rights that are theoretical or
illusory, but rights that are practical and effective.” See also Airey v. Ireland (1979).
119 Reinisch & Weber, 2004, p. 89. 120 Ryngaert, 2010, p. 133. 121 Ryngaert, 2010, p. 133. 122 Ryngaert, 2010, p. 139.
the effectiveness of the organisation’s dispute settlement mechanism in case it is in place, since the right should be effective and up to standard. 123 It must be noted that case-law shows that the
reasonable alternative means test is being performed by a majority of domestic courts of the contracting parties to the ECHR.124
Opponents of the idea that providing for alternative modes of dispute settlement should be seen as a precondition for the jurisdictional immunity of the UN, have pointed to the phrase “a
material factor [emphasis added] in determining whether granting ... immunity from ...
jurisdiction is permissible is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention”,125 arguing that this language does not lay down such an obligation under law. However, even if this language does not constitute an express obligation, it still clearly calls upon states to waive immunity where it might otherwise lead to a deprivation of the right of access to court.
In addition, reference should be made to the case of Stichting Mothers of Srebrenica v.
The Netherlands. According to the judgement of the Grand Chamber of the ECtHR, UN member
states do not have the responsibility and thus are not obliged to provide victims with alternative dispute settlement in furthering the right of access to court, when the UN has, through incapability or unwillingness, infringed upon this right.126 By delivering this judgement, the Court unburdened national courts from providing adequate alternative dispute settlement mechanisms, as it argued that article 6 of the ECHR did not require the Netherlands to step in.127
In its decision, the Court referred to earlier case-law, including Waite and Kennedy v. Germany, but argued that the Stichting Mothers of Srebrenica case was fundamentally different as it was based on the use of the powers of the UNSC under Chapter VII of the UN Charter, meaning that subjecting the case to domestic jurisdiction, by lifting the immunity of the UN, would hamper its mission and entail a violation of article 103 of the UN Charter.128 This argument, that essentially
123 Ryngaert, 2010, p. 144.
124 For example, see Siedler v. WEU (Brussels Labour Court of Appeal), Consortium X v. Switzerland (Swiss Federal
Supreme Court), D. v. Decision of the EPO Disciplinary Board (German Federal Constitutional Court).
Note that the case-law reflecting the practice of states to lift the immunity of international organisations due to the lack of an effective alternative forum mostly stems from European courts.
125 ECtHR, Waite and Kennedy v. Germany, 1999, p. 15, para. 68. 126 Faith, 2013, p. 371.
127 ECtHR, Stichting Mothers of Srebrenica v. The Netherlands, 2013, p. 43, para. 165. 128 ECtHR, Stichting Mothers of Srebrenica v. The Netherlands, 2013, pp. 40-41, para. 154.
reflected a broad interpretation of the operational necessity doctrine,129 was in line with the
decision in the Behrami case. If we see this as the only argument barring the waiver of the immunity of the UN, it still would not be workable in many cases, such as the Haiti cholera case, in which the UNSC does not act under Chapter VII, thereby limiting its application.
If we adhere to the view that states have the obligation to forfeit the immunity of the UN if no effective alternative fora are available for victims, the question which remains is whether it is desirable. The reluctance of many international organisations to let go of their immunity, has to do a great deal with their apprehension of national litigation, and its potentially invasive character, by states which may or may not have a properly functioning domestic court system in place.130 Letting a domestic court review the quality of an internal complaints procedure of an international organisation, has hence been called “jurisdictional overreaching”.131
Another consideration that needs to be made in this regard, is whether domestic courts are capable of providing judgements thereby ensuring the accountability of international organisations. When the institutional and internal law of the international organisation are under scrutiny, domestic courts may not be best equipped to decide on these matters.132 Furthermore, claims arising from the context of peacekeeping operations also tend to have a politically sensitive character.133 Therefore, Reinisch suggests that when states are not capable of adjudicating cases that involve international organisations, recourse should be sought to a third party, in the form of an international court of tribunal, that is better suited to decide on these cases.134 Such a forum can be endowed with the responsibility for the balancing test, for example by means of a preliminary ruling.135 After all, awarding the discretionary power to waive the immunity of the UN to the UN itself is risky, since it is inherently inclined to uphold its immunity. However, letting national courts determine whether or not to disregard immunity, however, might also be subject to the risk that a proper balancing of interests will be forfeited if
129 Boon, 2016, p. 379. 130 Reinisch, 2014, p. 579. 131 Ryngaert, 2010, p. 136. 132 Reinisch, 2014, p. 580. 133 Ryngaert, 2010, p. 144. 134 Reinisch, 2014, p. 581. 135 Reinisch, 2014, p. 584.
