Immunity of International Organizations and the Right of Access to Justice for Individuals

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1 Department of Law Spring Term 2018 Master s Thesis in Public International Law 30 ECTS Immunity of International Organizations and the Right of Access to Justice for Individuals Author: Johan Lindén Supervisor: Professor Inger Österdahl

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3 Abstract International Organizations are a growing force in the global arena. While the mandate and influence of the UN has increased over the last decades, the existing legal regime regarding privileges and immunities remain the same as they were at the founding of the organization. This has led to mass tort claims towards the UN, stemming from damages caused by the organizations. These damages often consist of human rights violations, something the organization is generally regarded as a protector of, rather than violator. As individuals seek to obtain reparations and remedies for the damages inflicted upon them, they are generally obstructed by the claim for immunity by the international organization. This constitutes a conflict of competing interests that the domestic courts must address and solve. This conflict is central to my thesis, as I will discover how this issue has been tackled by the national as well as international courts, and which consequences the current legal practice has for the individuals. The thesis concludes with a discussion on what needs to be done in order to bridge the current accountability gap created by the immunity of international organizations. i

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5 Table of Contents Abstract... i List of abbreviations... iv 1. Introduction Background Purpose and approach Limitations Method and material The human rights obligations of international organizations Variations of human rights violations by international organizations Human rights binding international organizations The right of access to justice The content of the right The sources of the right of access to justice Immunity of international organizations The notion and rationale of immunity Sources of immunity Immunity for international organizations as part of customary law International organizations immunity claims before the courts The obligation to provide an alternative dispute mechanism Immunity from allegations of human right violations Possible ways to fill the accountability gap Consequences of the legal practice The accountability gap of the UN Conclusions Bibliography iii

6 List of abbreviations ACHR American Convention on Human Rights AU African Union CoE Council of Europe CPIUN Convention on the Privileges and Immunities of the United Nations DARIO Draft Articles on the Responsibility of International Organizations ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights EU European Union EURATOM European Atomic Energy Community FRA -European Union Agency for Fundamental Rights ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice IJCH - Institute for Justice and Democracy in Haiti ILA International Law Association ILC International Law Committee NATO North Atlantic Treaty Organization OAS Organization of American States SOFA Status of Forces Agreement UDHR Universal Declaration of Human Rights UN United Nations UNGA United Nations General Assembly UNPROFOR United Nations Protection Force UNSC United Nations Security Council iv

7 1. Introduction 1.1 Background In the last centuries there has been rapid development in many areas which has quickly reshaped how our world functions. Today, international organizations play vital roles in almost all forums and areas. Following this development there has been an increase in mandate and power, as well as organizational growth in terms of personnel, presence and resources. 1 With a bigger machinery, more people are affected by their actions and there has therefore been a growing number of tortious claims of private law nature towards the international organizations. As a general rule the organization will claim immunity when brought before a national court. 2 The increasing power of international organizations has therefore led to a broadened claim of immunity in judicial matters. 3 Similar to the problems which occurred in regard to state immunity in the early years of the last century, when the range of state activities were expanding rapidly, the issue with jurisdictional immunity now presents similar problems with regard to international organizations. 4 Many international organizations act as upholders of human rights and as important lobbyists to advance change. Yet, the organizations themselves are hardly regulated in international law and aren t parties to any of the human rights treaties or conventions. This has led to a paradigm shift in where international organizations are often criticized. International organizations are expected and demanded by their member states to act in respect to international law, but there has been an increasing concern as to whether their own practice corresponds to what they expect from their member states and if they in fact 1 Ferstman, C., International Organizations and the Fight for Accountability, Oxford University Press, 2017, p Rashkow, B., Immunity of the United Nations: Practice and Challenge, pp , International Organizations Review, Vol. 10, no. 2, 2014, p Singer, M., Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns, pp , Virginia Journal of International Law, Vol. 36:53, 1995, p Singer, M., p

8 practice what they preach. 5 As Blokker puts it - international organizations are now often perceived as the wrong-doers, and no longer as the good-doers. 6 To avoid creating an accountability gap an effective system is needed to provide the potential victims of actions attributable to the international organizations with a right of access to justice. Otherwise there is a risk that the organizations will be left unchecked with no potential sanctions for misconduct. Thomas Hammerberg, a former Council of Europe, CoE, Commissioner for Human Rights expressed it as an international accountability deficit is no good for anyone, least of all the local population. No-one, especially an international organization, is above the law. 7 As practice is evolving, human rights are being increasingly applied and is influencing how the international organizations can act, especially in the field of accountability. 8 When individuals potentially have their rights violated by international organizations they may try to bring a tort claim towards the international organization in order to seek remedy. As Schmitt explains, this require two necessary conditions. 9 First a legal regime governing the responsibility of international organizations towards individuals must exist, and secondly there has to be an accountability mechanism where individuals can claim such responsibility and ask for redress. If these conditions are not met the individual s right of access to justice might be violated, which might put the states in a difficult situation as they have obligations both towards the international organization to grant immunity, as well as to the individual seeking to bring the claim. The relationship between immunity for international organizations and human rights can best be 5 Schrijver, N., Beyond Srebrenica and Haiti: Exploring Alternative Remedies against the United Nations, pp , International Organizations Law Review, Vol 10, 2013, p Blokker, N., International Organizations: The Untouchables?, pp , International Organizations Law Review, Vol 10, 2013, p Schmitt, P., Access to Justice and International Organizations The Case of Individual Victims of Human Rights Violations, Edward Elgar, 2017, p Blokker, N., p Schmitt, P., p. 2. 2

9 explained in terms of competing obligations. 10 This potential conflict is the main theme of this thesis, seeing as the European Court of Human Rights, ECtHR, has unswervingly held that that access to justice is an essential requirement for the rule of law Purpose and approach The main objective of this thesis is to analyze the conflict between the right of access to justice of individuals and the immunity of international organizations before national as well as international courts. Especially, the actions of the United Nations, UN, will be the primary focus seeing as the organization holds a unique place on the international arena. The UN acts as the primary upholder of international peace and security yet, as will be shown below, has been involved in situations where individuals have occurred damages by the organization s actions which has led to heavily debated cases before the courts. The scope of the immunity of the UN has, and still is, been a subject to scholarly discussion and the answer remains unclear. To illustrate the topical scenarios with which this thesis handles, one can describe the issues in two steps. Firstly, an international organization can through their actions or conduct commit an offence which constitute a violation of an individual s human rights. I will therefore, after the brief first, introductory chapter discuss which, if any, human rights obligations that might be binding upon international organizations. This examination is fundamental to establish whether an international organization at all can be held responsible for these offences. While the claims towards international organizations can be based on many 10 Pavoni, R., Human Rights and the Immunities of Foreign States and International Organizations, in Hierarchy in International Law: The Place of Human Rights, pp , De Wet, E., Vidmar, J., Oxford University Press, 2012, p Papa, M. I., The Mothers of Srebrenica Case before the European Court of Human Rights - United Nations Immunity versus Right of Access to a Court, pp , Journal of International Criminal Justice, Vol. 14, 2016, p

10 different grounds, such as contractual breaches or other civil law issues, these are not the primary focus of this thesis, albeit they will be touched upon to illustrate certain matters. Instead, focus will be on the tortious claims that can arise from when an international organization commit wrong-doings with regard to human rights. The second step of the issue at stake is occurs when the individual tries to seek remedy or reparation for the violation of their human rights. As the international organization often has a claim to immunity in front of the court, the individual might not find any success with their claim as the court lacks jurisdiction. If the case is brought in a national court, the state will have the issue of dealing with competing obligations as they on one hand must respect the immunity previously granted to the organization, often through a treaty or constituting document, and on the other hand have an obligation to provide the aggrieved individual with the right of access to justice. In this thesis, focus will mainly be on how these competing interests can be balanced and which consequences different approaches might lead to. Understanding the right of access to justice is vital for this discussion and will be dealt with in order to establish what constitutes this right and from which sources the right can be extracted from. This is done in the third chapter to establish the right for the individual and in which context it can be argued. Following the third chapter, the concept and rationale for the immunity for international organizations will be discussed, and a discussion whether the current legal state and court practice sufficiently balance the competing interests. After locating the current legal practice, a brief and general de lege ferenda discussion will be conducted. Whilst this thesis tries to tackle a wide issue with many relating questions, the research questions which are to be answered is - What, if any, restrictions to the individual s right of access to justice arise from the international organizations claim to immunity and, - Is there a way for the States to balance the interest of maintaining immunity for international organization whilst also providing individuals with the right of access to justice in order to avoid an accountability gap? 4

11 1.3 Limitations When using the term international organization, I will be refereeing to the definition proposed by the International Law Commission, ILC, in the Draft Articles on the Responsibility of International Organizations. 12 In Article 2(a) of the DARIO, an international organization is defined as an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities. As stated in the research questions, it is the individual s right of access to justice that will be the scope of this thesis. Other entities, such as states or organizations, potential right of access to justice therefore falls outside the scope. Similarly, only individuals right to bring claim toward international organizations will be dealt with, and not towards any other entities or states. An additional prerequisite for the possibility to bring claim for an international organization conduct is the ability to attribute the conduct to the organization. Whilst this is important and often discussed in connection to access to justice the question of attribution is outside the scope of this thesis. Likewise, any discussion targeting different sorts of accountability or responsibility, such as diplomatic or political, will be left aside. When responsibility is mentioned it refers strictly to responsibility in the legal sense. A separate but related well discussed issue is the discussion on individual s protection towards the effects of resolutions adopted by the United Nations Security Council, UNSC, the so called smart sanctions aimed to target terrorist activity. The legality and consequences of these resolutions has been found to affect individual s human rights and has been discussed extensively in the case law of different courts which has also led to the United Nations, UN, establishing the Office of the Ombudsperson to handle these issues. 13 While interesting in the area 12 ILC, Draft Articles on the Responsibility of International Organizations, Yearbook of the International Law Commission, 2011, vol. II, part II. 13 Tzanakopoulos, A., in Judicial Decisions on the Law of International Organizations, pp , Rydgaert, C., Dekker, I. F., Wessel, R. A., Wouters, J., Oxford University Press, 1 st edition,

12 of accountability of international organizations, these specific targeted sanctions falls outside the scope of this thesis. A potential violation of an individual s human rights through a conduct of an international organization can, as will be shown below, occur in many different ways and forms. The individuals conducting the actual action or inaction can therefore sometimes be targets of criminal charges in the legal system of the state with jurisdiction. If the individual is protected by immunity rules, the international organization will generally waive these. 14 This can create an opportunity in certain cases for the victim to bring claims towards the perpetrator. However, the area regarding criminal law sanctions towards individual perpetrators falls outside the scope of this essay and will not be dealt with further. Similarly, this thesis focuses only on the immunity claimed by the organization itself, and not immunities which representatives or officials of States to international organizations might obtain. 1.4 Method and material To answer the research questions stated above I will mainly be looking at the current situation, the lege lata, of the law to see how this issue has been dealt with in treaties and through case law practice. This entails the legal dogmatic method. To discover and investigate the current legal practice the traditional sources of international law will be used. 15 Soft law, often comprised of resolutions, guidelines and other non-binding legal documents will be taken into account. The case law on the subject is somewhat straggly and I will therefore focus on the most influential international courts as well as some national court practice for answers as to how the issue of immunity and right of access to justice has been dealt with. The written material on the topic is rather large and lively and I have therefore tried to in an independent way gain an overview as to the leading theories and 14 Schermers, H. G., Blokker, N., International Institutional Law: unity within diversity, 5 th rev. ed., Nijhoff, 2011, p Statue of the International Court of Justice, adopted 26 June 1945, entered into force 24 October 1945, 56 Stat 1031, article 38. 6

13 discussions in the scholarly arena. The issue at hand is a live topic with constant new developments and cases, as can be showcased by the current work done by the ILC on responsibility for international organizations, to which I have been quite particular to the recency of the jurisprudence discussed. 2. The human rights obligations of international organizations The ever-growing influence and impact of international organizations has led to a lot of situations where individuals human rights have been violated which has led to tortious claims. These include political and civil rights, but also economic, cultural and social rights. International organizations are a heterogenous group with largely different methods, scopes and goals. This means it is hard to pinpoint specific actions or means through which the organization can violate or threaten individuals rights. Below follows a brief examination of different situation which may lead to situation in which an international organization might violate an individual s rights, to find which obligations an international organization can have in the first step as was explained in chapter Variations of human rights violations by international organizations A widely discussed matter which often grabs the attention of the media is when human rights violations are being conducted during peace and security operations, seeing as these operations are explicitly there to prevent these types of assaults and to protect the civilian population. Yet rape, trafficking in women and children, sexual enslavement and child abuse often co-exist alongside peacekeeping missions. 16 The UN has taken action against these types of crimes over the last decades, still the problem prevails. In 2016, new light was shed on the issue as the independent so-called Kompass Inquiry Panel issued its report, being highly critical of the UNs handling of reported sexual exploitation and abuse in the 16 Rashkow, B., Above the Law? Innovating Legal Responses to Build a More Accountable U.N.: Where is the U.N. Now?, pp , ILSA Journal of International & Comparative Law, Vol. 23, no. 2, 2017, p

14 Central African Republic. 17 Later the same year, the Secretary General issued a report on Combatting Sexual Exploitation and Abuse where he argued ways to implement the recommendations put forward by the Kompass Inquiry Panel. 18 Merely four of the twelve recommendations were accepted without qualification, most notably one regarding the adoption of an approach to immunity that presumes cooperation of UN staff in accountability process. 19 Whilst these crimes often are conducted by individual perpetrators, and thus falls within the scope of the criminal law system of the nation, the UN still has an obligation to support and help the investigation and to address the reports seriously. Another issue lifted in the Kompass Inquiry Panel report was the fragmented bureaucracy of the UN which contributed to the failure to prevent sexual abuse of children in the Central African Republic, as it identified a culture of impunity and an abdication of responsibility within the organization. 20 The systematic failure of the UN to prevent these crimes and punish individual who commits them is an alarming issue, however there are also cases where the responsibility for the actions of the peace keeping forces are attributable to the international organization seeing as the peacekeeping operations are often led by an international organization, such as the North Atlantic Treaty Organization, NATO, or the UN. Regional organizations such as the European Union, EU, the African Union, AU, and the Organization of American States, OAS, could also be leading an operation in which attributable violations has been done. Two examples in this category deserves special attention and will be thoroughly discussed throughout this thesis. 17 UNGA, Report of an Independent Review on Sexual Exploitation & Abuse by International Peacekeeping Forces in the Central African Republic, 71 st session, U.N. Doc. A/71/99, June Rashkow, B., Above the Law? Innovating Legal Responses to Build a More Accountable U.N.: Where is the U.N. Now?, p Rashkow, B., Above the Law? Innovating Legal Responses to Build a More Accountable U.N.: Where is the U.N. Now?, p Rashkow, B., Above the Law? Innovating Legal Responses to Build a More Accountable U.N.: Where is the U.N. Now?, p

15 In 1995 a small and lightly armed Dutch peacekeeping force was part of the United Nations Protection Force, UNPROFOR, and had been tasked with the mission to protect a safe area in what today is Bosnia and Herzegovina. They did however not manage to prevent the following massacre, conducted by the Bosnian Serb Army, which killed estimated 7600 male civilian inhabitants of the enclave of Srebrenica. Kofi Annan, the then UN Secretary General, admitted that through error, misjudgement and an inability to recognize the scope of the evil confronting us, we failed to do our part to help save the people of Srebrenica from the Serb campaign of mass murder. 21 This failure of the UN to protect the civilians as they were tasked to do has been widely discussed and criticized. Arguably the acknowledgement by Kofi Annan, admitting the wrong-doing and failure of the UN, can be seen as at least a recognition for the victims. The contemporary system of peacekeeping, mandated through chapter VI of the UN charter, has to be proven efficient if one is to expect the nations to restraint from using violence in accordance with the prohibition in Article 2 p The failure to protect in Srebrenica, which followed shortly after the UN receiving criticism for its actions during the Rwanda genocide, was possibly damaging to the credibility and legitimacy of the UN as a protective world force. As opposed to the examples above of individual accounts of rape or trafficking conducted by UN peace keepers, the Srebrenica massacre serves as an example of a large systematic failure where the organization as a whole should be held responsible, and perhaps even accountable, for the failure to protect the civilian population in accordance with the mandate given to them through the UNSC resolution. Another situation showcasing where a systematic failure by the UN led to serious damage was the aftermath of the catastrophic earthquake in 2010 which demolished large parts of Haiti, the western hemisphere s poorest country, and left the country in a vulnerable state. The UN had previously had presence in the 21 UNGA, Report of the Secretary-General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, 45 th session, UN Doc. A/54/549, 15 November 1999, para UNGA, Charter of the United Nations, UNTS, vol. 1, p. XVI, 24 October

16 country, which quickly turned towards helping it rebuild. 23 Shortly thereafter, this effort led to a backlash, as Peacekeepers from Nepal accidentally introduced cholera through poorly managed sanitation facilities which allowed direct fecal contamination of the Artibonite river, which is one of the main sources of drinking water in Haiti. 24 The disease, which hadn t been present in the country during the entire twentieth century, quickly spread throughout the civilian population. 25 Four years later, more than 8,000 people had died from the disease and over 700,000 people had been infected. 26 Some of the survivors have described permanent injuries stemming from the infection, and it is likely that more people will be infected in the coming decade. 27 The UN neglect was twofold. Firstly, the poorly managed toiletry situation directly led to the disease being rapidly spread. Secondly, no Nepalese soldiers deployed as a part of the peacekeeping operation were tested for cholera prior to entering Haiti, despite cholera being a large problem in Nepal. 28 The Srebrenica massacre as well as the cholera outbreak on Haiti showcases situations where the overarching failure of UN peacekeeping operations has led to disastrous consequences for individuals whom had several of their rights violated, among them the absolute right to life. Both scenarios have also led to several cases brought towards the UN. As will be further discussed below, the Srebrenica massacre involved the primary purpose of the UN, as set out in Article 1 p 1 of the UN Charter, to maintain international peace and security, whereas the Haiti disaster was a consequence of a lack of organization and structure by the UN to test their personnel and build safe sanitation systems. Throughout these cases, the UN has claimed immunity from jurisdiction, leaving the plaintiffs without any 23 Bode, T. G., Cholera in Haiti: United Nations Immunity and Accountability, pp , Georgetown Journal of International Law, Vol. 37, no. 2, 2016, p Schmitt, P., p Bode, T. G., p Schmitt, P., p Bode, T. G., p Schmitt, P., p

17 means of receiving reparation from the UN. This will be further discussed below in the context of the individual s right of access to justice. Besides peacekeeping operations, another situation which is likely to include conducts and actions that violate individuals human rights is when an international organization, mostly the UN, gain temporary governmental control of an area. The UNSC authorized the establishment of an interim administration led by the UN in Kosovo in This meant that in this area the UN acted almost like a state. During this time, several international institutions and scholars denounced human rights violations committed by the interim administration, which included depriving individual of liberty without any judicial control. 29 Another notable area which is the subject to a lot of case-law is that of staff relations between the international organization and its employees. In the context of human rights this might include par-standard health and safety conditions, discrimination and harassment. In these situations, the victim has a direct link to the organization through a contract of employment. If the individual has been subject to a violation of their human rights they might want to seek action against the organization, which might only be possible in front of a national court where the organization can claim immunity during the proceedings. As will be shown below, situations like these might in fact be an unlawful violation of the victims right of access to justice. 2.2 Human rights binding international organizations As stated above under chapter 1.1, international organizations are generally not bound by any human right treaties. The main reason for this is because they are not signatories, as these are often only open for states to sign. 30 With the entry into force of the Lisbon Treaty on 1 December 2009 two major developments in the 29 Schmitt, P., p Nowak, M., Januszewski, K. M., Non-State Actors and Human Rights, in Non-State Actors in International Law, pp , Noortmann, M., Reinisch, A., Ryngaert, C., Hart Publishing, 2015, p

18 fields of human rights happened. 31 First, the Charter of Fundamental Rights of the EU came to get the same legal value as the Treaties. This makes the Charter a legally binding text for the EU institutions. The Members States are also bound by the charter, but only when adopting EU legislation. Second, the Lisbon Treaty gave the EU the power to accede to the European Convention on Human Rights, ECHR. 32 This creates the opportunity for a future where individuals can bring claims towards the EU of violations of the ECHR to the ECtHR. This accession would be the very first example of an international organization joining both a human rights treaty and its linked judicial mechanism. Seeing as international organizations don t have any binding obligation to protect human rights under current legal treaty regime, one has to look to other sources in order to establish such obligations. Customary international law is binding on all subjects of international law, meaning entities which possess an international legal personality. The debate on whom the subjects of international law are has been very lively for a long time. Today there is a wide consensus that intergovernmental organizations do have rights and obligations and can thus be seen as subjects. 33 This stem from the advisory opinion of the International Court of Justice, ICJ, from 1949, Reparation for Injuries Suffered in the Service of the United Nations, they held that the UN had an international legal personality and was therefore to be considered a subject of international law. It could therefore possess international rights and duties as well as launch international claims against another subject of law. 34 Intergovernmental organizations are created by states, often through the drafting of a treaty, in order to exercise a certain task or function. Generally, these are 31 Schmitt, P., p Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, ETS 5, 4 November Klabbers, J., International Law, 1 st ed., Cambridge University Press, 2013, p Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinon, ICJ Reports 1949, p

19 functions that the state either are unwilling or unable to do and where an organization is better fitted. Certain tasks can be more conveniently and efficiently conducted by an organization than by a single state. Often the constituent document provides that an international organization has legal personality, for example Article 47 in the Treaty of the European Union stating that The European Union shall have legal personality. 35 This is not the case for the UN, as only two Articles in the Charter deals with the legal status, Article 104 and 105. Article 104 states that the UN shall enjoy within the territory of the member states such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. This legal personality is however only directed towards recognition by the member states and does not in itself grant international legal personality, albeit it is since long recognized that the UN possesses this as well. 36 It should be worth noting that relatively few constituent treaties provide explicitly for an international legal personality, but while the attribution of personality is indicative of what the drafters had in mind when drafting the treaty it is not alone decisive for determining an international organizations legal personality. 37 A consequence from international organizations having international legal personality, they are bound by any obligation incumbent upon them under general rules of international law. 38 What these general rules include is still uncertain and largely debated. Some argue that the massive adoption and incessant affirmation of the fundamental human rights listed in human rights treaties such as the Universal Declaration of Human Rights, UDHR, have made these rules, or at least 35 European Union, Consolidated version of the Treaty on European Union, 2008/C 115/01, 13 December Wallace, R. M. M., International Law, 7 th ed., Sweet & Maxwell, 2013, p Klabbers, J., An Introduction to International Organizations Law, 3 rd ed., Cambridge University Press, 2015, p Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, ICJ Reports 1980, p. 73, para

20 some of them, into customary law. 39 If that hold true, these would be binding upon all subjects of international law, and would not be restricted only to obligations which are accepted by the international organization. 40 In order for these fundamental human rights to be considered constituting customary law it would require two elements, namely a consistent and unambiguous State practice and a belief that this practice is in conformity with legal requirements (opinion juris). It is beyond the scope of this thesis to further develop on which human rights that could be argued to constitute customary law, but my conclusions are that there are certain fundamental human rights standards to which the international organizations must adhere and respect in their practice, stemming from the UDHR and the two international covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESR) which together forms the International Bill of Human Rights. According to the International Law Association, ILA, international organizations are also bound by general principles of law. 41 This is defined in the statute of the ICJ in article 38(1)(c) as general principles of law recognized by civilized nations. 42 This means that international organizations are bound by human rights obligations which result from common principles in national legal systems, such as the principles that are enshrined in the UDHR. Also, jus cogens norms are generally accepted as being binding towards international organizations. 43 These can be defined as norms accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can only be a subsequent norm of general law having the 39 UNGA, Universal Declaration on Human Rights, 217 A (III), 10 December 1948; See further Schmitt, P., p Clapman, A., Human Rights Obligations of Non-State Actors, Oxford University Press, 2006, p ILA, Committee on Accountability of International Organizations Final Report, International Law Association Report of the Seventy-First Conference, 2004, p UNGA, Statute of the International Court of Justice, UNTS, vol. 33, p. 993, 18 April Schmitt, P., p

21 same character. 44 Given the nature of jus cogens permitting no derogation these can never be justified or permitted either by a state or by an international organization. Exactly which norms that are said to constitute jus cogens is something which falls beside the scope of this thesis but will be addressed further below in regard to certain human rights. 3. The right of access to justice In the previous chapter, it was explained how the international organizations can act within the current human rights framework. This was done to investigate the first step, where an individual has their human rights violated by an international organization. The following chapter will instead focus on the second step, the individual s right of access to justice, as they try to seek remedy and reparation for the violation inflicted upon them by the international organization. In order to do that, I will first discuss the right of access to justice as a concept, meaning its content and its sources. 3.1 The content of the right As a human right, the right of access to justice holds a special position. Without the availability to claim your rights, they become void of any meaning or power. The right of access to justice is therefore an essential component of the system of protection and enforcement of human rights. 45 There is however not a single definition to what the right entails. Following in this thesis, by right of access to justice entails the possibility for an individual to bring a claim before a court and have a court adjudicate it. There are more levels to this. According to a 2011 study by FRA, the European Union Agency for Fundamental Rights, access to justice is a concept with many nuances which includes, first and foremost, effective access to an independent dispute resolution mechanism coupled with other related issues, 44 Vienna Convention on the Law of Treaties, UNTS, vol. 1155, p. 331, 23 May 1969, art Francioni, F., Access to Justice as a Human Right, Oxford University Press, 2007, p

22 such as availability of legal aid and adequate redress. 46 For the purpose of this thesis, the right of access to justice will be evaluated from the perspective of having the ability to make a claim and initiate proceedings without it being dismissed on procedural grounds, such as an immunity claim. Aspects such as legal costs, procedural time limits, access to legal aid et cetera will not be discussed further. The right of access to justice also often co-relates to other rights, such as the right to a fair trial and the right to an effective remedy. These aspects of the rights become relevant once the proceedings before the court have started, or when they are finished, and will not be dealt with further in detail. It is true though that the right of access to justice is often seen as an inherent part of the right to a fair trial and are sometimes not expressed explicitly in the human rights treaties. 47 The ECtHR has therefore found that the characteristics of what make a fair trial are of no value if there are no judicial proceedings. 48 Hence, the right of access to justice is a crucial step to ensure meaning for all fundamental fair rights guarantees. 3.2 The sources of the right of access to justice The states obligation to provide individuals with access to justice is not contended in the legal debate. States are bound by the human rights instrument providing for the right and has a responsibility to provide access to courts for individuals in their territory or subject to their jurisdiction. 49 When an individual have their human rights violated they ought to have the possibility to bring this claim in front of a national court, most often in the state which were responsible for the violation. However, if the violation of the individual s right were done by an international 46 FRA, Study on Access to Justice in Europe: An Overview of Challenges and Opportunities, 2010, p See for example art. 10 of the UDHR and art. 6(1) of the ECHR. 48 Golder v. The United Kingdom, app. no. 4451/70, 21 February 1975, ECHR, para UNHRC, General Comment n. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, 19 th session, UN Doc. CCPR/C/GC/32, 23 August 2007, p.3. 16

23 organization, the issue becomes more complex as will be shown in this thesis below. Before this discussion, one must first evaluate if there is any obligation for other entities, which are not bound by the obligation created through the human right treaties, to provide for access to justice. To be more precise, whether the right of access to justice can be said to have acquired the status of customary law. The right to a fair trial, which includes the right of access to justice, is as noted above part of several instruments. Beside the regional human right instruments, the ECHR and the American Charter of Human Rights, ACHR, the right is enshrined in international instruments such as the UDHR and the ICCPR. Despite these all having different wording, making the scope of the right somewhat uncertain, some make the argument that the right of access to justice could be considered as customary law. 50 On the other hand, there is still some who argue that access to justice as a human right still is unclear in international customary law. For example, Francioni argues that even though human right treaties and judicial practice shows that access to justice is generally recognized as a human right in the context of domestic law and that every state is under an obligation to fulfil such right by making available a system of effective remedies, it does not include the right of access to justice in international proceedings. 51 He further points to the fact that the development of human rights standards following the establishment of the UN hasn t been accompanied by a structural transformation of the international legal order as to make it possible for individuals to claim a right of access to international remedial mechanisms on the basis of customary norms of international law. 52 The lack of a global international mechanism for ensuring access to justice is therefore an argument against the notion of the right achieving the status of customary law. 50 Schmitt, P., p Francioni, F., p Francioni, F., p

24 To sum up, it seems that whilst the development is still ongoing, it is too early to make a precise or certain decision on to the status of the right of access to justice as customary law. The UN has themselves acknowledged the importance of the right of access to justice in a resolution adopted by the General Assembly. 53 However, whilst the importance of providing the right of access to justice seems overall accepted, it cannot be said that this makes clear customary law. For international organizations, there cannot therefore be said to be any clear precise obligation to provide individuals with access to justice, except when explicitly stated in a treaty. 4. Immunity of international organizations 4.1 The notion and rationale of immunity States consists of a somewhat confined territory that has a population and can therefore exercise authority over this. International organizations must claim their jurisdiction on other bases. The functional theory provides an answer by deriving the authority exercised by the organization from its functions, and thus claims that the organization has legal powers. The member states set up the organization to achieve a certain goal or to conduct a certain duty and to give effect to that function it must have the ability to exercise some authority. 54 Some powers may be explicitly attributed, such as the UNSCs function to have the primary responsibility for the maintenance of international peace and security in article 24 of the UN Charter. It follows naturally that in order to give effect to that function, it is necessary that the UNSC is granted certain powers. In the Reparation for Injuries opinion of the ICJ it was held that the UN must have the ability to bring claims towards non-member states because this would enable them to carry out their functions. This was found despite the founding charter being silent on the 53 UNGA, Basic Principles Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian law, 60 th session, U.N. Doc. A/RES/60/147, 21 March 2006, art. 1.2(b). 54 Klabbers, J., International Law, p

25 matter. There has therefore been an active discussion on the so called implied powers of international organizations, which in some manners could justify all sorts of activities that are untaken by international organizations. 55 It s been criticized for being too broad, sometimes by using slippery-slope arguments, but it would also be naïve to state that organizations only derive their powers from functions that has been directly attributed to them. Likewise to finding the powers of the organization based on its functions, this is also the basic reason for its immunity. Immunity rules are part of the traditional foundation of rules regulating international organizations, and it has for long been accepted that international organizations and their staff need immunity from the jurisdiction of national courts. 56 While state immunity is based on the par in parem non habet imperium principle, international organization base their immunity on the principle of functional necessity. 57 The doctrine of functional necessity has granted international organizations as much jurisdictional immunity as they need to exercise their functions in order to fulfil their intended purposes. 58 According to Bekker some basic considerations of granting immunity to organizations consists of: their impartiality vis-à-vis member states, financial and political independence, the equality of the member states and equality of status with other organizations as well as the prestige and authority of the international organization. 59 The main rationale behind granting immunity is thus the organizations effective functioning as well as independence. By subjecting international organizations to the jurisdiction of national courts, there is also a risk that this would lead to a plethora of different legal practice amongst the different states, leaving a very uncertain 55 Klabbers, J., International Law, p Blokker, N., p Papa, M. I., p Singer, M., p Bekker, P. H. F., The Legal Position of Intergovernmental Organizations: A Functional Necessity Analysis of Their Legal Status and Immunities, Vol. 17, Nijhoff, 1994, p

26 legal position as well as uncertainty and tensions between the organization and national courts. For an example on to how this functional necessity is expressed one can look at article 105(1) of the UN charter which states that the UN shall enjoy in its member states such privileges and immunities as are necessary for the fulfillment of its purposes. A similar provision is found in article 105(2) targeted towards the immunity of representatives of member states as well as UN officials. Whilst the idea of immunity for international organizations seems well founded, it has certain drawbacks. Recently, the principle of immunity for international organizations has been criticized by asking the question: if national courts cannot exercise jurisdiction over international organizations, who can? 60 States can, after all, be sued in their own domestic courts where they don t enjoy any immunity, but most organizations don t have their own courts. The open-texture of the functional necessity provisions is also very open ended, meaning that the scope of the immunity is hard to grasp and probably means different things to different people or rather different judges and states. 61 As can be read in the travaux préparatoires of the UN Charter, the wording of the provisions regarding functional necessity is deliberately broad, which leaves national jurisdictions with the possibility of balancing the interest of the independence and functioning of the organization contra other values such as accountability. 62 Prima facie, the functional necessity idea therefore seems to restrict the immunity of international organizations to what is strictly necessary for them to function and conduct the tasks put upon them by the member states. As will be shown, that is not the whole truth. Yet another problem which has been discussed in regard to the functional necessity-thesis is the possibility that the organization can commit violations of public order, or even 60 Blokker, N., p Reinisch, A., Janik, R. R. A., The Personality, Privileges, and Immunities of International Organizations before National Courts Room for Dialogue, in The Privileges and Immunities of International Organizations in Domestic Courts, Reinisch, A., Oxford University Press, 2012, p Schmitt, P., p

27 of human rights, under the shield of its functional necessity. In a Dutch case against the European Atomic Energy Community, EURATOM, which was accused of several criminal infringements of environmental rules, the domestic Supreme Court had to decide whether these acts were covered by the organization s immunity. 63 Whereas the Court of Appeal had previously made the decision that these acts were not covered by the immunity as they were not necessary to the performance of its task and that violations of environmental regulations could not be part of the mission of the international organization, the Supreme Court took an opposite view. They considered that EURATOM was in fact entitled to immunity even for acts which constituted criminal offences that were committed in connection with its official activities, seeing as they were entitled to complete these tasks with complete independence. 64 This interpretation of the functional necessity thesis would lead to almost absolute immunity for the organizations, which arguably leaves room for criticism. Additionally, one can point to the other side of the spectrum, consisting of court decisions with much narrower interpretation. 65 Conclusively, no one interpretation on the functional necessity of international organizations exists, leaving it to nothing more of a scholarly hot pot for debate. The practice of courts interpreting this standard bears evidence of the difficulty of making sense of functional immunity. 66 In my opinion, it is clear that the functional necessity is not restricting the jurisdictional immunity for organizations, but rather widens it as it leaves broad room for interpretation. Ultimately, it is the State parties to the relevant treaties 63 Greenpeace Nederland and Procurator General at the Supreme Court of the Netherlands (intervening) v. Euratom, Judgment on Appeal in Cassation, Decision no. LJN: BA9173, 13 November Schmitt, P., p Klabbers, J., An Introduction to International Organizations Law, p Weber, U. A., Reinisch, A., In the Shadow of Waite and Kennedy The Jurisdictional Immunity of International Organizations, The Individual s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement, pp , International Organizations Law Review, p