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Our Session Topic: Are IO’s Subject to Human Rights Law?

Our Session Topic: Are IO’s Subject to Human Rights Law?. Pretty simple, straight-forward question The common sense reply is, why of course— IO’s are created by international law Human rights law is a subset of international law

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Our Session Topic: Are IO’s Subject to Human Rights Law?

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  1. Our Session Topic:Are IO’s Subject to Human Rights Law? • Pretty simple, straight-forward question • The common sense reply is, why of course— • IO’s are created by international law • Human rights law is a subset of international law • Therefore, as creatures of international law, IO’s are subject to human rights law • But ask the legal counsel of an IO, and the typical reply is usually: « As IOs are not signatories to international human rights covenants or conventions, IOs are not subject to such instruments

  2. And What Sayeth that RenownedOracle, the ILOAT? (cue sarcasm!!) • The typical legal answer—essentially on one hand IOs are subject to International law, but on the other hand they are not—to wit: • One the one hand--Judgment N°. 1369, c 15—“The Tribunal must enforce the law within the full ambit of the competence its Statute vests in it. For that purpose it will apply any material rule of law, be it international or administrative or labour law or any other body of law. The only sort it will not apply is national law, save where there is express renvoi thereto in staff regulations or contract of employment: see Judgment 1311 (in re Guerra Ardiles) under 15. • On the other—Judgment N° 2662 c 12: "Reliance on the (EHR) Convention is misplaced as it is not applicable to international organisations. The complainant's rights are those derived from the Staff Regulations and Staff Rules and from the general principles of law applicable to such organisations."

  3. And now, la pièce de résistance: • IOs are subject to human rights instruments, but not really: • Judgment N°. 2292, c 11: Even if "the Member States of the [Organisation] are all signatories to the European Convention on Human Rights, the Organisation [...] as such is not a member of the Council of Europe and is not bound by the Convention in the same way as signatory states. Nevertheless, the general principles enshrined in the Convention, particularly the principles of non-discrimination and the protection of property rights, are part of human rights, which, [...] in compliance with the Tribunal's case law, apply to relations with staff." • The problem of course is in the practical application of such standards to IO s by the ILOAT—know of no case where the ILOAT has expressly applied a principle of human rights law against an IO—the ILOAT’s recitation of such rights is sadly illusory in practice

  4. And What of Those Other Pillers of Probity, the UNDT and UNAT? • The UNDT/UNAT can talk the talk, but do not walk the walk • In one of its first judgments, Tadonki v SG (Case N° 2009/16), the UNDT started out on the high road: • “8.2.4 The European Court of Human Rights has ruled that the right to continue in professional practice is a civil right .There is no reason why that principle should not be applicable to all contracts of employment in any civilized society. It follows that disputes arising out of a contract of employment should be dealt with according to fair procedures and the provisions guaranteeing the right to work should be interpreted according to international human rights norms. • 8.2.6 The Tribunal also notes that the Heads of State and Government, who gathered at the United Nations Headquarters in New York from 14 to 16 September 2005, reaffirmed their faith in the United Nations and their commitment to the purposes and principles of the Charter of the United Nations and international law. They also resolved to ensure full respect for the fundamental principles and rights at work. • 8.2.7 It follows therefore that the rules and regulations of the United Nations relating to employment should be interpreted and applied in a manner that takes into account the international human rights standards. They should not be narrowly construed in view of the well established principle that statutes should, if possible, be construed so as to conform to international instruments “ (emphasis added) • Sadly, the UNDT/UNAT have not lived up the high standards set out for the UN internal justice system in Tadonki

  5. What do more credible sources say? • American Law Institute’sRestatement of the Law (Third), The Foreign Relations Law of the United Statesopines: "Subject to the international agreement creatingit, an international organization has [...] (b) the rightsand dutiescreated by international law or agreement." (Restatement of the Law (Third), The Foreign Relations Law of the United States § 223 (American Law Institute ed., 1987—emphasisadded).

  6. What do more credible sources say?(cont.) • A number of scholars adhere to the idea that IOs are bound by general international law. Since international organizations are constituted by the common will of states through an act of transferring powers to them, the resulting legal creatures cannot enjoy more powers than their creators--"Nemo plus iuris transferre potest quam ipse habet" (‘No one can transfer more rights than one possesses.’). • Thus, the member states of an IO cannot collectively "opt-out" of customary law and general principles of law by creating an IO which would no longer be bound by what restricted its founding members.

  7. What do more credible sources say?(cont.) • Another line of argument stresses the status of IOs enjoying legal personality under international law. The fact that IOs are generally perceived to enjoy international legal personality implies that they have rights and duties under international law and are subject to international law. In other words, an IO is "subject to" international law because it is a "subject of" international law.

  8. What do more credible sources say?(cont.) • This last line of argument was very clearly expressed by the ICJ in its Advisory Opinion on the Headquarters Agreement between the WHO and Egypt, wherein it stated that "international organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law [...]." (Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, 1980 ICJ Rep. 73, at 89—emphasis added).

  9. What do more credible sources say?(cont.) In Waite and Kennedy v. Germany, (Application no. 26083/94) and Beer and Regan v. Germany (Application no. 28934/95), the ECHR held in 1999 that: • “The Court is of the opinion that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention [for the Protection of Human Rights and Fundamental Freedoms], however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution.

  10. What do more credible sources say?(cont.) • More recently, in Sabeh El Leil v France (Application no. 34869/05, 29 June 2011) the ECHR found that by applying the doctrine of State immunity without giving relevant and sufficient reasons and without consideration of recent developments in international law, the French courts had impaired the applicant’s right of access to a court in breach of Article 6.   • The case concerned an employee (the applicant) of the State of Kuwait, a French national, who had worked as an accountant at the Kuwaiti Embassy in Paris for 20 years. The Court found that his role was neither of a diplomatic or consular nature. Rather he performed the duties of accountant, and later head accountant, within the embassy itself.

  11. What do more credible sources say?(cont.) • Although Sabeh involved a sovereign state rather than an IO, its reasoning logically should be applied to IO’s using immunity to deny a staff member’s access to a local court over an employment dispute, except where the staff member is performing “sovereign functions”—remember -"Nemo plus iuris transferre potest quam ipse habet". • Several cases now pending before the ECHR arising out of IO employment disputes (EPO, UNDP) have been held preliminarily admissible, and will soon likely result in a more definitive statement on the application of the Sabeh principle to IOs (at least within the purview of the ECHR): • Klausecker v Germany (Application # 415/07--EPO) • Perez v Germany (Application #15521/08--UNDP).

  12. Another Interesting Case to Watch • Last week, a class action civil suit was filed in US Federal District Court for Southern Manhatten against the UN on behalf of the victims and survivors of a cholera epidemic allegedly caused in Haiti during 2011 by Nepalese UN peacekeepers • 8500 have died to date, and continue to die • 750,000 were seriously sickened by the cholera • Source of cholera has been pinpointed on a DNA level • UN refuses to invoke compensation board foreseen by Article 29 of the UN General Convention on Privileges and Immunities • UN has asserted its immunity as its sole defense • The scope and size of the victim pool may well seal the end of UN immunity/impunity

  13. By what sources of Int Human Rights Law are IOs bound?(not exhaustive) • Primary Sources: • Int Covenant on Political and Civil Rights • Universal Declaration of Human Rights • European Convention on Human Rights (at least within Europe) • other Jus cogens principles of international law • Secondary Sources • Core ILO Labor Standards in particular: • N° 87—Freedom of Association and Right to Organise • N°. 98—Collective Bargaining • N°. 100—Equal Pay • N°. 111—Anti-discrimination Convention • Int Covenant on Economic, Social and Cultural Rights

  14. Conclusions No serious legal scholar or practitioner can reasonably dispute today that IOs, notwithstanding the fact that they are generally not signatories to most primary and/or secondary human rights instruments, are subject to such instruments by virtue of their status as creatures of international law More and more national and international courts are corroborating this conclusion in cases brought against IOs by injured employees and innocent third party victims (but not the ILOAT!!) The trend is towards limiting IO (like State) immunity IOs ignore this trend at their own peril

  15. End of Presentation—Thank you for your attention! • Questions can be asked in the breakout or plenary sessions • Suggestions/comments welcome! • A copy of this PP presentation will shortly be posted to the COE website and www.flahertylawgroup.com

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