There are now over 100,000 UN uniformed peacekeeping personnel deployed around the world in missions that have legal authority from the Security Council, under Chapter VII of the Charter, to use force to protect civilians (POC). 1 A number of independent reviews have, however, been sharply critical of their records in actually doing so. 2 In March 2014, for example, a report by the UN Office of Internal Oversight Services (OIOS) stated that while POC mandates create a ‘legal obligation’ on missions to ‘use force, including deadly force . . . within their capabilities when civilians are in imminent physical danger or actually being attacked in their areas of deployment’ they routinely avoided doing so and that ‘force is almost never used to protect civilians under attack.’ 3 Internal inquiries and lessons learned reports into particular incidents where missions failed to protect civilians have often identified failures of both management and political leadership. Missions have also failed to investigate fully and speak out against violations, particularly when these are committed by, or with the acquiescence of, government forces in the host state. 4 In some cases missions have been complicit in these violations by providing support to the forces that committed them. 5 Yet there does not appear to be a single case where the UN has initiated disciplinary action against senior mission or headquarters staff for failing to protect civilians in line with a mission mandate.
The case law of the ECtHR regarding extraterritorial jurisdiction, with Jaloud as the most recent addition, has been subject to criticism for being inconsistent and hard to foresee (see chapter 184.108.40.206, comments by, inter alia, judge Bonello). In order to make the law more foreseeable, I believe that there is a need for more elaborated general principles on jurisdiction to be established, and most of all for those principles to be applied consistently by the ECtHR. The question is how such general principles could be framed. Starting with the spatial model (chapter 3.2.1), it seems obvious that applying only that model and doing so too strictly would not guarantee the rights and freedoms of the ECHR in a way that most people probably intuitively consider that it should. If the ECHR would apply only within the territory of the Contracting States, States would be free to disregard their humanrightsobligations elsewhere. In order to provide an effective humanrights protection, the spatial model needs to, at least to some extent, be supplemented by the personal model of jurisdiction (chapter 3.2.2). It seems like the ECtHR is now struggling to establish how far the personal model can be elaborated. As has been argued above, the latest position of the ECtHR in Jaloud has opened up for a more permissive approach to extraterritorial application of the ECHR. However, in order for a more consistent case law to be established and in order for States to be able to foresee whether the ECHR applies to acts or omissions of their
Territorial States legally bear the primary responsibility 4 for humanrights violations, but they are not always able (nor willing) to live up to their humanrightsobligations. Decisions of other, equally powerful actors, such as international economic institutions, transnational corporations and/or other States may have a much larger and profound impact on the realisation of socio-economic humanrights than the territorial State has. As Joseph has pointed out, “Given the potential for [transnational corporations] to translate their economic power into potentially huge de facto political power, it is perhaps unrealistic to expect humanrights accountability [regarding transnational corporations] to emanate exclusively from host States.” 5 It therefore makes sense to make these other actors equally responsible for humanrights. In this paper, we will only zoom in on other States, i.e. the home State/State of incorporation of transnational corporations, in addition to the host State as the traditional duty-bearer. There is a wealth of literature addressing the responsibilities and obligations of corporations themselves in particular. 6
Those words, written by Rosalyn Higgins, summarize the truth behind the concept of international subjectivity. After all, the question on whether or not an actor’s actions are treated under international law depends relies and depends on a political decision: lawmakers (States in most of the cases) may determine that a non-state actor’s deeds impact the international community to an extent that makes it necessary or advisable to have its actions regulated by international norms and, thus, those lawmakers can accordingly create customary or treaty-law norms 11 –which may be peremptory norms- that deal with those actors’ rights and/or duties –depending on whether special protection must be granted them or it is necessary to constrain their actions-. Thus, in order to determine if an actor has international rights and duties one should do nothing but reviewing and determining whether there is a norm that creates such a right or duty.
Traditionally, under the influence of early liberal philosophy of the Enlightenment (Ishay, 2004, p. 63–116), the obligations of the state relating to an individual’s exercise of fundamental rights, including freedom of expression, were perceived as strictly negative. The state was simply required to refrain from unduly restricting the exercise of rights, especially in an arbitrary manner (Barendt, 2007, p. 22). Such traditional approaches still dominate in the U.S., rooted in the Constitution and its Amendments (Currie, 1986). As one American scholar put it, ‘we do not have rights that positively obligate the state to do something. We do not have rights that require, rather than forbid, the state to take some action’ (West, 2001, p. 1907). The last U.S. administration to embrace humanrights and hint at accepting at least some positive obligations of the state was under President Jimmy Carter in the late 1970s (Hanum, 2019, p. 137–140). The refusal of the U.S. to ratify the 1966 International Covenant on Economic, Social, and Cultural Rights evidences American opposition to the concept of positive state action in relation to humanrights, arising out of axiological differences between the U.S. and the international community (Alston, 1990, p. 367; Fields, 2003, p. 101). The Supremacy Clause (Article VI of the U.S. Constitution) declares international treaties, along with the Constitution and the laws of the U.S., to be the ‘supreme Law of the Land.’ Thus, provisions of treaties are enforceable in court, unless they are deemed to be non-self-executing, as elaborated upon by the Supreme Court in Foster v. Neilson. 12 A treaty is non-self-executing generally when what ‘it
It is important to mention that acts of assault may also amount to torture. ‘Torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity(Article 1(1) of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter UNCAT). See also Ferdinandusse W ‘Prosecutor v. N. Case No. AO7178’ 2005 (99) American Journal of International Law 686-690). Before a country criminalises torture as a crime sui generis, it usually punishes acts of torture as assault. Despite the fact that the definition of torture is now considered as jus cogens, i.e. to be accepted and enforced by each and every state (Sweetser CE ‘Providing Effective Remedies to Victims of Abuse by Peacekeeping Personnel’ 2008 (83) New York University Law Review 1643-1677, 657), States that have not ratified or accessed the UN Convention against torture continue to punish acts of torture as assault. Thus Somalia before accession to the UNCAT in January 1990 (Somali accessed the UNCAT on 24 January 1990. See ‘International HumanRights Treaties and the Somali Republic (1960-1991)’ http://wfrt.net/humanrts- /research/ratification-somalia.html [accessed 8 November 2012]; IRCT ‘States Which Have Ratified or Acceded to the UN Convention against Torture and Other Inhuman or Degrading Treatment or Punishment’ www.irct.org [last accessed 8 November 2012]).
urges Member States to create a conducive envi- ronment to strengthen and support all families, recognizing that equality between women and men and respect for all the humanrights and fundamen- tal freedoms of all family members are essential to family well-being and to society at large, noting the importance of reconciliation of work and family life and recognizing the principle of shared parental responsibility for the upbringing and development of the child. (United Nations Protection of the Family). In the same session, the HumanRights Council adopted a resolution in which it noted the Report of the Expert Working Group on Discrimination against Women (WGDAW) on the theme of cultural and family life and called upon states to ensure women’s equal enjoyment of all humanrights by, inter alia, “promoting the equal and full access, participation, and contribution of women and girls in all aspects of life, including in cultural and family life” (United Nations Protection of the Family paras. 1, 3(b)). The Council also called upon the States to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family re- lations, and to guarantee women’s equality in law and in practice in family life, in accordance with their respective international obligations and commitments by, among other things:
socio-economic conditions is essential for the existence of humanrights, it would be incorrect to speak about the synchronic universality of humanrights. Many poor states do not enjoy the “common conditions of life” necessary for the (full) realization of humanrights. Nevertheless, these states have recognized humanrights, because (for various reasons) they believe that these minimum normative standards should serve as universal regulative guidelines, and thereby have expressed their intention to undertake all efforts for their realization independently and in cooperation with (members of) the international community. In this respect, humanrights and corresponding (global) obligations exist where a universal political consensus about them is achieved and they govern the behavior of multiple actors. We deal with moral or legal humanrights depending on whether this overlapping consensus is reached only in global political discourse or expressed in various legal sources (such as international humanrights instruments, customary international law, and jus cogens) as well.
Humanrights violations occur daily, all over the world. Sovereign states legally bear the primary responsibility for humanrights violations. But what happens when these states are not able to live up to their humanrightsobligations? Do other states have extraterritorial obligations to help them out? What role should other actors (such as companies or international organisations) play? This Programme starts from the assumption that humanrightsobligations, in particular in the field of economic, social and cultural rights, need to be re-thought in the present era of globalisation.
As the world becomes more reliant on international systems of trade, norms, and politics, nations must be prepared to embrace all of the chal- lenges of globalization. States that are members of the United Nations and involved in UN peacekeeping must follow suit in meeting the obstacles included in expanded global military initiatives. Because existing initiatives are falling short of their goals of providing peacekeeping troops who are better suited to consider humanrights dimensions of conflict, new options must be explored. While avoiding any direct suggestions of how to create such change, it is proposed that the only effective method of ensuring that peacekeeping soldiers protect and promote humanrights, especially in the area of human trafficking and sexual slavery, is to redefine the culture of
the WHO list of essential medicines (this includes ARVs). As discussed above the cost of purchasing and providing access to ARVs is beyond the financial reach of many countries and thus to provide such treatment they must engage in international assistance and cooper- ation. Our research attempted to ascertain how ongoing interaction with the Global Fund impacted on the differ- ent actors’ views on the legal nature of global health obligations. It is worth recalling from our discussion in section one that legal scholars are divided as to whether such an obligation exists: some arguing yes; others yes but is not practicable; and others that it simply does not exist. We did not expect to hear high income state representatives affirm the existence of such an obliga- tion. We found that a large majority (18) of the intervie- wees rejected the idea that international assistance and cooperation was based on charity. The majority did not take a firm position on the legal obligation question often blurring the line between moral obligation, legal obligation and the concept of solidarity.
The alternative is to ground the procreative model on the interests of parents. Many possible interests of parents could be invoked here, but advocates of this model often appeal to the distinctive goods parents can enjoy thanks to their relationships with their children. For instance, Harry Brighouse and Adam Swift7 (2006) propose that the parent-child relationship is unique among human relationships in being a relationship between unequals, in which one party is noticeably more vulnerable and needy; such that children cannot exit the relationship; characterized by spontaneous and unconditional love on the part of children; and fiduciary in that parents are entrusted with the immediate and future well-being of their children. Together these features lend the parent-child relationship a form of intimacy that makes these relationships incommensurable with other adult relationships and contributes uniquely to parents’ flourishing and to the development of their capacities. In a similar vein, Christine Overall states that a
Business acquisition of community, public and individually owned property rights can negatively impact the enjoyment of children’s rights. Environmental degradation from land use can decrease the availability of food and access to clean water and sanitation, while forced evictions may cause interruptions in education, reduce access to health care, result in scarcities in adequate housing, raise problems related to social exclusion, and increase risks of trafficking and exploitation. In this context, the Kenya National HumanRights Commission launched a public inquiry into community displacements resulting from the coastal salt manufacturing industry. The Commission uncovered numerous humanrights violations and abuses, including issues related to harassment, inadequate compensation, corruption, poor labour conditions and pollution; identified the roles and responsibilities of all public and private sector actors involved; and issued targeted recommendations to both government and business. In addition, the Commission proactively organized consultations with local communities to inform them of their rights and discuss the potential impacts of future business projects. 102
Although every litigator endeavors to win on threshold jurisdictional defenses, relinquishing this particular argument is unlikely to significantly disadvantage the United States since it will retain a number of more com- pelling defenses down the rhetorical cascade. In particular, in the most crit- ical NIAC scenarios, the United States can focus its energies on bolstering its lex specialis argument by educating humanrights institutions on its views as to the reach and content of IHL. Moreover, it has well-developed argu- ments on the merits as to why its conduct either does not run afoul of its humanrightsobligations or is otherwise justified. The receptivity of these bodies to more substantive arguments will be enhanced with the distraction of an antagonistic extraterritoriality argument out of the way. Indeed, it could be argued that because the policies so often at issue here are so mo- mentous, the United States should be willing set aside hyper-legalized strat- agems altogether and defend its actions on the merits.
In Steel and Morris, the Court had to consider fair trial rights under Article 6 in defamation proceedings brought by a multi-national corporation against NGO campaigners in the UK. The proceedings were complex and protracted, yet the campaigners had not qualified for legal aid, had represented themselves throughout most of the case, and had encountered difficulties in paying various administrative costs. In its judgment, the ECtHR recalled that ‘the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial. It is central to the concept of fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court and that he or she is able to enjoy equality of arms with the opposing side’. 108 Furthermore, the Court ruled that whether the provision of legal aid was necessary for a fair hearing depended, inter alia, ‘upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure, and the applicant’s capacity to represent him or herself effectively’. 109 Applying these principles to the case at hand, the Court held that
As mentioned, the nature of contemporary conflicts has changed and therefore, the nature UN peacekeeping has had to change accordingly. It has evolved and expanded from a great number of small “ad hoc commitments” solving specific issues and challenges, to a much broader, much visible and more institutionalized organization that has deployed hundreds of thousands of personnel from over 120 UN member states. (Koops et al., 2015, 2.) Inter-state conflicts have changed to complex intra-state conflicts or civil wars, and as a result, peacekeeping is not only about monitoring ceasefire agreements and demilitarized zones, like during the Cold War (see Taylor and Curtis, 2005, 412; Puechguirbal, 2015, 253; Koops et al., 2015, 3; Ramsbotham, 2016, 175), but instead, contemporary peacekeeping operations include new roles and tasks such as facilitating peace processes, protecting civilians, help in the process of disarmament, demobilization and reintegration of former combatants, organizing elections, cleaning of mines, protecting and monitoring humanrights as well as assisting in reestablishing the rule of law and good governance. (UN Peacekeeping, n.d.a.; Puechguirbal, 2015, 253; Whitworth, 2004, 12; Mazurana et al, 2005, 20; Karim & Beardsley, 2017, 12; Beilstein, 1998, 140.) In 1992, the former UN Secretary General Boutros Boutros-Ghali made an initiative called “Agenda for Peace” in order to assess the new nature of conflicts and responses to them as well as to broaden the mandates of missions. He noted that mandates should have a greater focus on the role of stabilizing and peacebuilding activities. (Väyrynen, 2004, 125; Karim & Beardsley, 2017, 12.)
As early as 1957, the General Assembly expressed the view that a balanced and integrated economic and social development programme would contrib- ute towards the promotion and maintenance of peace and security, social progress, better standards of living and the observance of and respect for humanrights and fundamental freedoms. This approach was given increased prominence by the Teheran World Conference on HumanRights and later recognized as a paramount concern by the second World Conference on HumanRights held in Vienna in June 1993 – that genuine and sustainable development requires the protection and promotion of humanrights. Development is not restricted to meeting basic human needs; it is, indeed, a right. With a rights-based approach, effective action for development moves from the optional realm of charity, into the mandatory realm of law, with identifiable rights, obligations, claim-holders, and duty-holders. When devel- opment is conceived as a right, the implication is that someone holds a claim, or legal entitlement and a corresponding duty or legal obligation. The obliga- tion which devolves upon Governments (individually by States vis-à-vis their own people, and collectively by the international community of States) is, in some cases, a positive obligation (to do, or provide something) and, in others, a negative obligation (to refrain from taking action). What is more, embracing the rights framework opens the door to the use of a growing pool of infor- mation, analysis and jurisprudence developed in recent years by treaty bodies and other humanrights specialists on the requirements of adequate housing, health, food, childhood development, the rule of law, and virtually all other elements of sustainable human development.
one state cannot dictate how other states use their resources or conduct their international affairs, whether domestic in origin or international. Thus, selling arms to another state that is likely to use such weapons to oppress internal opposition, or shipping anti-personnel mines to a state where their use is much more likely to harm civilian rather than military populations, or investing in industry that is likely to cause health problems or to deprive people of their land and leave them destitute, these issues are rarely (if ever) addressed in terms of humanrights. The receiving state takes the view that the consequences of these arms or mines, or indeed the internal effect of the industry, is simply part of the sovereign decisions of the national govern- ment, which also means that there is no accountability on part of the state that provides the weaponry or the financial investment. Yet, it seems to be acceptable from a sovereignty perspective to grant development assistance for agricultural production, for example, with the specified condition that the necessary technical equipment is purchased in the assisting state. However, apparently it is contrary to the principle of sovereignty to put in a condition that the agricultural workers should have a right of association, even if the granting state and the recipient state both have ratified humanrights conventions guaranteeing the right of association. The reciprocity of international obligations, which is a fundamental principle in international law, does not seem to apply in these cases.