International Legal Responsibility of International Organizations in the ILC Draft Articles and Beyond

Front matter

International Legal Responsibility of International Organizations in the ILC Draft Articles and Beyond

Sarah Bayani

International Legal Responsibility of International Organizations in the ILC Draft Articles and Beyond

Table of Contents

Last: Of ADDLEVIatlONS eet castecvevavsveccvanteavevendases adanada a a i a ii XII IntrodücH oM norna EAEE EEE E R EEE 1 AEE aot OTE OE EAE E NEA 15 II. Globalization and International Organizations ...ss..ssss.sssssssssessseesssressreressreess 16 1. Unprecedented Change in the Nature of the Activities of IOs... 16

2. The Impacts of the Changes on the Prominence of the Issue of Responsibility of TOS & vs -sevcrsestsexesseevinessvonvdesebens cudubanesotessdesenenegeceneteteendenedeteees 17 M Methodology iitsc.issesssctassieseseeasived vetioniesstarsincesavedasesavetvedessieaagragighaaessinasienadaaneaes 19

I. The nature of State as primary subject of international law for the

Chapter Two: The General Principle of International Responsibility in

International Law and international legal discourse 0.0.0.0... eee 43 I. The Legal Basis of the general principle of International Responsibility in the International Legal Ordet wo... esses sssestssessssessssessssesssseensseensaes 44 IV. The Place of Responsibility in the General Framework of AcCOuMtability OF:1OS te. issesssedecctecessendtseiedscevstessdeesssseievstiuatessshessisvessesavbvesibessssens 53 1. Historical and initial Optimism towards IOs or normative ideas OF LO Ssdisiasionedisss:ssc..sisccsstssssessescseesscuseseestosscecvegvoeesessesswseasiarinersenaseaneans 55 2. The categorization presented in the ILA Berlin final Report... 57 3: CONGIUSION Aaa ise B Ru Gets ane ae eae neue aaa ees 104 V. The intrinsic features of international legal responsibility... 105 1. Legal personality as a precondition of accountability generally and responsibility specifically... sesseesseseessesesesesesesesesseetseseseseenesees 105 2. International Criminal Responsibility for LOS? oo... eesseeseeeeeeeeee 115 3. Attribution of Conduct to an LO ..ss..ssssssssesssseessrressreesriessreessrressreensrressreesse 120 4, Fragmentation of the law of International responsibility... 124

5. The Theory of Abuse of Rights and its relevance to responsibility

Chapter Three: ILC Articles on Responsibility of International

Organizations m eneon apuna a aa aa aa a er ea g e ET dhe 127 I Private Codification: e TOS anien nnn AEA AR N 129 II. Drafting the ARIO following the model of the ASR ww. eee 129 1. Direct Applicability of the provisions of ASR on IOS... 134

2. ARIO or the end product of a legal transplantation in the law of international Responsibility... esesesseseeesesessesessessssesssseensseetsseensseeees 135

Table of Contents XI

Ae Seant Gase LaWo eiric reee EEEE EEE 147 5. Limited Available Pertinent and Relevant Practice... 148 TCs Working Methods vexscevyinoxerozccinsversvorscnevtatednecnsveresgenslereanedevencadeetes 154 III. The Nature of international Responsibility in ARIO: an objective or a subjective responsibility CONCEPtlON? 0... esses tees tesesteseetesesteseeneees 162 3. The role of damage and injury... cesses csesseesssesnssssnssesnsseeesseeeees 168 IV. Attribution of Conduct: a closer look at the complicated case OP PPP Skean a tani e EEE SE E E A A 175 V. Principle of Speciality and its relevance and implications for the tesponsibility óf TOszssini ene a a ke e i te ka t 180 VI. The Appropriateness of the “One-Size-Fits-All” Approach usec 183 1. Agency Relationship between States and IOS... ssesseesseseseetsseetene 188 2. Transfer of Powers tO 1OS...c.ccsscesssecssssessvesouosvasasossensaseszesononsasosssnonseseenonses 192 VII. The Role of Damage and the definition of Injured State or IO in PRs da eiren ion rira na TEL R EERE E aman 194 IX. The Dual Character of an International Organization... 198 1. Functional Duality in the framework of ITAS wesc eseeeeseeteee 200 2 The test of “effective control” in the ARIO Nw. eeeseeeseeneeeeeeenees 200 3. Prevalence of the Obligations arising out of the UN Charter over the ARIO Articles .:s.cssscssssisssssesssosasonssesnjesusovasesogossseasinsaseosassveazsnedsbguacneduavees 201

Chapter Four: The (In)appropriateness of the definition of

Responsibility in ARIO fot IOs 0.0... ccccccessesseeseesseseeseeseesseesseessecsseseesseesseesnes 203 I. The sources, content and scope of the Obligations of International

Orpa ZAMON Serrar aE EE KE EE E i a a E sa iae 208

II. Necessity of accountability to fill the responsibility gap wees 291

XII Table of Contents

Chapter Five: Drawbacks of unclarities surrounding the obligations

Of IOs fot ARIO ineeie i A AN 295 I. Limited scope of applicability of ARIO in practice... eee 296 II. The risk of the Abuse of Legal Personality of IOs by their member StAbeS 1.50. d, MER a a NOR I ee eS Bt 297 1. At the time of establishment or subsequent transfer of powers and COMPETENCES araara EAEE OEE REE A cutee EEE 300 3 At the Time of the Implementation of the Decisions 0... 311 IH. Solutions to prevent and/or remedy the abuse of the separate legal personality of TO Spirra Racists stein acters tate cat EA tts 312 2. The general duty tocó-operate nsii e rear raii aE 321 3. ILC ARIO solutions for the problem of the abuse of legal personality Of lOS iaaea aaea EE AEAEE 324 4. Further Considerations icc.cscissescsececnsosssecnssvesstensssastevansasaenssctsavanvsnsnvaseeastenseas 332 Ds COME] US IOI EAEE he ibe sre A es Hieteten AE AS Se S 334 Conchidinig Remar kSnnen iaia EAER 339 ANNEXE Seana a a EA E A E E A E RE 345

List of Abbreviations

AJIL AFDI AfDB AJPIL ALR ARIEL ADB ASR BYBIL DARIO

EBRD

ECHR

American Journal of International Law

Annuaire Francais de Droit International

African Development Bank

Austrian Journal of Public and International Law Administrative Law Review

Austrian Review of International and European Law Asian Development Bank

Articles on State Responsibility

British Year Book of International Law

Draft Articles on Responsibility of International Organizations

European Bank for Reconstruction and Development

European Court of Human Rights

XIV List of Abbreviations ECJ European Court of Justice EU European Union ed. Editor eds. Editors EJIL European Journal of International Law EJIR European Journal of International Relations FYIL Finnish Yearbook of International Law fn. Footnote GA General Assembly Georgetown JIL Georgetown Journal of International Law GoJIL Goettingen Journal of International Law HRQ Human Rights Quarterly Harvard Intl LJ Harvard International Law Journal IAMs Independent Accountability Mechanisms ICJ International Court of Justice ICLQ International and Comparative Law Quarterly IDI Institut de Droit International IFC International Finance Corporation IFIs International Financial Institutions ILA International Law Association ILC International Law Commission ILC Yearbook Yearbook of the International Law Commission ILO International Labour Organization ILOAT International Labour Organization Administrative Tribunal IMF International Monetory Fund IO International Organization IOLR International Organizations Law Review

J. Int. Disp. Settlement

Journal of International Dispute Settlement

List of Abbreviations

XV

LJIL MDBs

Mich.JIL MPEPIL

NGO NJIL Nordic JIL OP&Ps OECD

OSCE OUP Para.

PCI) RCADI

REIOs RGDIP SAYIL

SC

UN

ULR Virginia JIL WB YBILC ZAORV

Leiden Journal of International Law Multilateral Development Banks Michigan Journal of International Law

Max Planck Encyclopedia of Public International Law

Non-Governmental Organization Netherlands Yearbook of International Law Nordic Journal of International Law Operational Policies and Procedures

Organization for Economic Cooperation and Development

Organization for Security and Cooperation in Europe Oxford University Press

Paragraph

Permanent Court of International Justice

Recueil des Cours de Académie de Droit International

Regional Economic Integration Organizations Revue Générale de Droit International Public South African Yearbook of International Law Security Council

United Nations

Utah Law Review

Virginia Journal of International Law

World Bank

Yearbook of International Law Commission

Zeitschrift fur auslandisches öffentliches Recht und Volkerrecht

Introduction

The present dissertation will be dealing with a topic that is, according to Pau? Reuter, at the heart of international law and constitutes an essential part of what may be considered the constitution of the international community.! The purpose of this thesis is to examine and review some specific aspects relevant to the question of international legal responsibility of international organizations (hereinafter IOs), mainly with a view to assessing the International Law Commission’s work on the codification of the international legal rules in this area. These efforts of the ILC have ultimately been resulted in the submission to and adoption by the General Assembly of the United Nations, of a set of draft articles on the responsibility of international organizations, already known and hereinafter referred to as ARIO. It should also be reminded at the outset that, as is the case in ARIO, the study will only focus on intergovernmental IOs and will not consider the legal situation of, for example, non-governmental organizations (NGOs) in international law.

1 Reuter, Paul, “Trois observations sur la codification de la responsabilité internationale des Etats pour fait illicite”, in Le droit international au service de la paix, de la justice et du développement-Mélanges Michel Virally, Pedone, Paris, 1991, p. 390; reproduced in Paul Reuter, Le développement de l'ordre juridique international-E.crits de droit international, Economica, Patis, 1995, p. 574.

The post World War I era is often referred to as the advent of international organizations.” Another turning point was the end of the cold war, which has led to the activation of the world organization, which is undoubtedly a welcome development, but at the same time it has brought with it the rise of possibility and the potential of the breach of the legal obligations and violations of the rights of other entities and individuals by the same organization and its counterparts in general. Globalization is another reality of the current post-Cold War world. The end of the Cold War, as Koh observes, “... initiated the era of global law in which we now live”.4 One of the most remarkable characteristics of this global law era is the expansion of supra-national governance mechanisms.> Mechanisms of global governance created by the post-cold war international law are dramatically changing our views of public law, including constitutional and administrative law.° Supranational entities can and do impose regulatory solutions, which in many instances supersede those that had been adopted domestically in accordance with the preferences and values of the people.’

As much more activities have entered the international domain, the IOs have become more and more involved in the international affairs, and consequently, this has contributed to the enlargement of the international personality of IOs.8

2 Paulus, Andreas L., “The International Legal System as a Constitution”, in J.L. Dunoff and J. P. Trachtman, Ruling the World? Constitutionalism, International Law and Global Governance, OUP, 2009, pp. 69-109, at p. 72.

3 Walde, Thomas W., “Investment Arbitration as a Discipline for Good-Governance”, in Todd Wiler (ed), NAFTA Investment Law and Arbitration: Past Issues, Current Practice, Future Prospect, Ardsley Transnational Publishers, 2003, p. 475.

4 Koh, Harold H., “Review Essay: Why Do Nations Obey International Law?”, Yale Law Journal, Vol. 106, 1997, pp. 599-630, at p. 617.

5 Helfer, Laurence R. and Dinwoodie, Graeme B., “Designing Non-National Systems: The case of the Uniform Domain Name Dispute Resolution Policy”, Wiliam and Mary Law Review, Vol. 43, 2001, p. 141, at pp. 144-45; Esty, Daniel C., “Good Governance at the Supranational Scale: Globalizing Administrative Law”, Yale Law Journal, 2006, Vol. 115, at p. 1495; David Held, “The Transformation of Political Community: Rethinking Democracy in the Context of Globalization”, in Ian Shapiro and Casiano Hacker-Cordon (eds), Democracy’s Edges, New York, CUP, 1999, p. 84.

6 Montt, Santiago, State Liability in Investment Treaty Arbitration, Hart Publishing, 2009, p. 131.

7 Helfer, Laurence R., “Constitutional Analogies in the International Legal System”, Loyola Los Angeles Law Review, Vol. 37, 2003, p. 197. According to this author, where treaty obligations are dynamic and evolve through institutional processes outside of any one state’s control, compliance with those obligations may clash with domestic preferences and raise trenchant legitimacy concerns.

8 Klabbers, Jan, “The Life and Times of the Law of International Organizations”, Nordic JIL, Vol. 70, No. 3, 2001, pp. 287-317; Brdlmann, Catherine, “A Flat Earth? International Organizations in the System of International Law”, Nordic JIL, Vol. 70, No. 3, 2001, pp. 319-340; Osterdahl, Inger, “The EU and Its Member States, Other States, and International Organizations — The Common European Security and Defence Policy After Nice”, Nordic JIL, Vol. 70, No. 3, 2001, pp. 341-372; Klabbers, Jan, “Institutional Ambivalence by Design: Soft Organizations in International Law”, Nordic JIL, Vol. 70, No. 3, 2001, pp. 403—421; March, James G., and Olsen, Johan P., “The Institutional Dynamics of International Political Orders”, JO, Vol. 52, 1998, pp. 943-69; Finnemore, Martha and Sikkink, Kathryn, “International Norm Dynamics and Political Change”, JO, Vol. 52, 1998, pp. 887-917; Kennedy, David, “Putting the Politics Back in International Politics”, Finnish Yearbook

International organizations are now able to influence the internal processes of states or change the direction of administrative decisions. As an example, WTO dispute settlement decisions are in most cases factually decisive for domestic administrative action. The costs of non-compliance would simply be too high to allow domestic administrative processes real freedom to deviate from a WTO decision. International institutions are not only directly involved in international relations, but they also indirectly play a role at the international and national level through affecting the behavior of both States and individuals.!° The dispute settlement bodies could undertake the task of concretizing the general principles that states have agreed on.!! It is also to be noted that as one of the reasons, the lack of density in treaties results in the delegation of power to international bodies.!2

The participation of IOs in the international life is at the same time one of the consequences of the changing structures of the international legal system, and also one of its manifestations. IOs have not only grown in number,!> but are now among the major players in many areas of international relations, and it is possible that in the years and decades to come this participation will grow even more rapidly given the number of applications for adhesion to different IOs. Although some authors may be found who have warned about the proliferation of international institutions to secure global justice, and in spite of pessimism expressed by these scholars in international relations, the general trend has been to the contrary. The number of international organizations has increased in an unprecedented pace during the past century.'4

Such increase in the role of IOs in international affairs could possibly one day — although there are still no signs of a total replacement on the horizon — attain the point that they could be considered even completely as equals and counterparts of States, the major and principal subjects of international law, in terms of the scope of competences, powers, functions and the roles playing in international relations. Therefore, it is of utmost necessity that the international legal system prepares for and adapts itself with these emerging new situations. Otherwise, there of International Law, Vol. 9, 1998, pp. 17-27; Evans, M. D., “State Responsibility and the ECHR”, in M. Fitzmaurice and Sarooshi, D., Issues of State Responsibility before International Judicial Institutions, Hart Publishing, Oregon, 2004, pp. 139-140; Alvarez, José E., “International Organizations: Then and Now”, AJIL, Vol. 100, No. 2, 2006, pp. 324-347.

° Krisch, N. and Kingsbury, Benedict, “Global Governance and Global Administrative Law in the International Legal Order”, EJIL, Vol. 17, 2006, pp. 1-13, at p. 4.

10 Bodansky, Daniel, “The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?”, AJIL, Vol. 93, 1999, pp. 596—624, at p. 601.

11 Kumm, Mattias, “The Legitimacy of International Law: A Constitutionalist Framework of Analysis”, EJIL, Vol. 15, No. 5, 2004, pp. 907-931, p. 914.

12 Montt, Santiago, Sate Liability in Investment Treaty Arbitration, op. cit., p. 135.

13 Loibl, Gerhard, “Theme III: Global Governance: Institutions — Co-operation and Transparency between International Legal Institutions”, LJIL, Vol. 16, No. 4, 2003, pp. 900-901, at p. 900.

14 Langlois, Anthony J., “Is Global Justice a Mirage?”, European Journal of International Relations, Vol. 17 (1), 2011, pp. 145-157, at p. 147.

would be a large gap in the system that would even grow deeper every day, and the international legal system would gradually distance itself from reality.

In the international legal order, international responsibility has often been described as the corollary of international law, the best proof of its existence and the most credible measure of its effectiveness.'> Significant attention in numerous volumes has been dedicated to the question of international legal responsibility. At the same time, the concepts of accountability and responsibility of international organizations have been the subject of increasing attention over the last halfcentury. No one would evermore doubt that the question of the responsibility of IOs is not anymore a theoretical one, but definitely implies various relevant practical aspects. The issue of the liability for the conducts of the peace-keeping personnel of the United Nations is one of the prime examples that have surpassed almost all the territorial borders on the globe.'®

By their nature and especially the amplitude of the scope of their activities, the international organizations have now attained a high potential to damage individuals and legal persons. They are nowadays more than ever before involved in almost all our everyday life matters, be it international, domestic, public or even private affairs. They assume wide ranging tasks, from delivering cooperation development assistance and aid in almost all the corners of the world where such assistance or aid is needed, to the implementation of duties relating to the realization of the rule of law in the context of transitional justice. Even when an IO issues a report, there is always the risk and potential that the IO injures some entity in one way or the other. The decisions of the WTO Dispute Settlement Body, for instance, may have grave economical effects for States parties to the dispute, and even indirectly for third parties.

No limit is set to the realms of activities of IOs or their scope. To borrow the expression used by Amerasinghe for referring to IOs as “ubiquitous phenomenon”!’, thus, it maybe is only a matter of time before the IOs enter into all the activities undertaken at the international level, even those activities reserved to certain enities for the moment. By this statement, the main reference can be made to the governmental tasks, such as tax collection and wealth distribution. Maybe we are not that far from the moment where the IOs actually undertake governmental tasks, not only temporarily, such as in the case of International Administrations in transition periods, but on a permanent basis. The UN, as well as its predecessor the League of Nations, had previously been involved in the administration

15 Pellet, Alain, “The Definition of Responsibility in International Law”, in James Crawford; Alain Pellet; and Simon Olleson (eds.), The Law of International Responsibility, Oxford University Press, 2010, pp. 3-16, at p. 3.

16 Bothe, Michael, “Streitkräfte internationaler Organisationen”, Köln, München, 1968, pp. 53-149, cited in Mosler, Hermann, The International Society as a Legal Community, Sijthoff & Noordhoff, 1980, p. 170.

17 Amerasinghe, C. F., “The Law of International Organizations: A Subject which needs exploration and Analysis”, IOLR, Vol. 1, Issue 1, 2004, pp. 9-21, at p. 10.

of territory. Whereas many of these former international administrations were envisaged either as a solution for territorial questions, or to facilitate transition towards independence in the decolonization era, the current use of international administration needs to be seen as a method of post-conflict peace-building.!®

The above mentioned hypothesis should not necessarily be realized with the scenario in which IOs replace the State, but it could also end up in a scenario where they can simply act in parallel with the State. In this connection, reference can be made to tax unions for instance as one of the possible developments of the future enlargement of the realm of the activities of IOs. Sometimes IOs temporarily take over the internal tasks of a government in a State unable to perform these tasks. As an example, reference can be made to the involvement of ICAO in the airspace and airport control activities in Somalia as a result of the lack of a central national authority in this State since 1991.!° At the same time, the enlargement of domains, where the cooperation of many parties at the international level is vital, does not seem to stop increasing. A prominent recent example is the challenge of encountering the threat of terrorism, a horrible phenomenon that leaves unfortunately no corner of the planet untouched. While terrorist attacks are far from being a new phenomenon, its intensification and frequency in our millennium raises serious concerns. We hear or witness every month, even every week the news or images of a new horrible terrorist act coming from different places in the world. In the era of collective action, the importance of IOs grows even more, since the IOs are the most appropriate and competent already existing candidates in the framework of which such collective action may best be effectuated.

In this connection, the question of accountability finds even greater relevance. States are increasingly giving way to non-State actors in international relations” in order to cope with different global problems to some of them we made briefly reference above. With the emergence of this phenomenon, it is necessary that the required shift and adaptation in the accountability also takes place. Some authors believe that by establishing international institutions the focus should be more on how to control and curb their power, rather than how to realize global justice.?!

The major purpose of the secondary rules is to provide a remedy for the breach of obligations and possibly the injury or damage sustained by the benefi-

'8 De Brabandere, Eric, “Human Rights Accountability of International Administrations: Theory and Practice in East Timor”, in Wouters, Jan; Brems, Eva; Smis, Stefaan and Pierre Schmitt (eds.), Accountability for Human Rights Violations by International Organizations, intersentia, Antwerp-Oxford- Portland, 2010, p. 331.

19 Giorgetti, Chiara, “Fulfilling International Obligations by International Organizations in the Absence of State Control”. Available on: www.esil-sedi.eu/sites/default/files/Giorgetti_0.PDF (last visited on 15.01.2015).

2 Reinisch, August, “Governance without Accountability?”, German Yearbook of International Law, Vol. 44, 2001, pp. 270-306, at p. 270-271.

21 Langlois, Anthony J., “Is Global Justice a Mirage?”, European Journal of International Relations, Vol. 17 (1), 2011, pp. 145-157, at p. 148.

ciaries and owners of the rights, damage that is one of the results of the violation of those rights. As it has been stated by Oppenheim a hundred years ago, “International law is not an end in itself; it is merely a means to certain ends outside itself’.?? The international legal system was lacking secondary norms for a long time, and precisely for this reason, in the eyes of Hart, the international legal system has been comparable with a primitive legal system.”

Throughout the history, the development of international law has been influenced by the requirements of international life. The progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States.” The interdependence between States has increased tremendously in the last century. In the era of governance, meaning that IOs such as EU or international law taking the place of government within a wider range of law-like regulatory activities, and the use of non-governmental actors to steer behavior, sitting alongside the ‘command and control’ of government through law,” the international organizations are at the heart of many global issues today.” Plurality of actors at the international level has been compared with middle ages, and some scholars have even coined the expression “new middle ages’’.?7 It has been stated that international law has gained a whole new dimension following the increasing emergence of IOs in international relations.”®

Hence, the disappearance of the monopoly surrounding the international responsibility at the international level was a direct result of the diversification of the subjects of international law.2? Consequently, the same general principles that apply to the international responsibility of States shall also largely govern the international responsibility of IOs and these legal regimes share the same general characteristics.*” In other words, the principle of State responsibility is widely accepted to be applicable to international organizations. According to this principle, a conduct of a subject of international law in breach of an international obli-

22 Oppenheim, L., “The Science of International Law — Its Task and Method”, AJIL, Vol. 2, 1908, pp. 313-356, at p. 314.

23 Hart, H.L.A, The Concept of Law, Clarendon law series, second edition, p. 214, at p. 233 ff.

24 International Court of Justice (ICJ), Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion, 1949, p. 8.

25 Cryer, R./Hervey, T./Sokhi-Bulley, B./Bohm, A., Research Methodologies in EU and International Law, Hart Publishing, Oxford and Portland, Oregon, 2011, p. 43.

26 Hurd, Jan, International Organizations, Politics, Law, Practice, Cambridge University Press, Cambridge, 2011.

27 Minc, Alain, Le Nouveau Moyen Age, Gallimard, 1994.

28 Klabbers, Jan, “Book Review of “The Responsibility of International Organizations toward Third Parties: Some Basic Principles’ by Moshe Hirsch”, EJIL, Vol. 8 (2), 1997, pp. 385-386, at p. 385.

2 Pellet, Alain, “The Definition of Responsibility in International Law”, in James Crawford; Alain Pellet; and Simon Olleson (eds.), The Law of International Responsibility, Oxford University Press, 2010, pp. 3-16, at p. 6.

gation which is attributable to that subject of international law (a state or an IO) entails the international legal responsibility of that entity under international law, which in case of causing damages or injuries comprises also its liability in full reparation and compensation if necessary.*!

Back in 1971 the ILC referred to the importance of the topic of the responsibility of other subjects of international law, ¿nzr alia, international organizations.” It has been stated that codification can further the development of new case law.33 Although the issue of responsibility of international organizations had been touched upon even in the middle of the last century, we are still facing the lack of clarity concerning various important aspects of the issue of the responsibility of international institutions within the international legal order.34 ARIO has admittedly crystallized some of the unclear and abstract angles of this matter. In the present dissertation one of the intentions is also to find and put forward, through the lens of our chosen hypothesis and its subsequent analysis that will be undertaken in order to examine it, the untouched points on which the ILC could have further shed light at the occasion of drafting ARIO.

Even at the time of the League of Nations, it was evident that when law is more emphasized in the international relations, there could be the hope that peace can be achieved and maintained.*5 Largely ignored until recently, particular focus is now directed at international organizations as human rights violators.3° The international missions have gone more and more under scrutiny and scepticism. The lack of accountability for violations of human rights during UN territorial administrations is widely reported, together with the poor level of remedies adopted.*’ The institutionalising of this transitional authority is one of the factors why

31 UN Secretary-General Report, “Administrative and budgetary aspects of the financing of the United Nations peace-keeping operations”, UN Doc. A/51/389, at para. 6.

32 Ago, R., “Third Report on State Responsibility”, ILC Yearbook 1971, Vol. II (1), pp. 199-274, at p. 200.

33 Daillier, Patrick, “The Development of the Law of Responsibility through the Case Law”, in James Crawford; Alain Pellet and Simon Olleson, The Law of International Responsibility, Oxford University Press, first edition, 2010, pp. 37—44, at p. 37.

34 Tondini, Matteo, “The ‘Italian Job’: How to Make International Organizations Compliant with Human Rights and Accountable for their Violation by Targeting Member States”, in Wouters, Jan; Brems, Eva; Smis, Stefaan and Pierre Schmitt (eds.), Accountability for Human Rights Violations by International Organizations, intersentia, Antwerp-Oxford-Portland, 2010, p. 211.

35 Schiicking, W. (ed.), Die Satzung des Volkerbundes, Third edition, Berlin, Verlag von Franz Vahlen, 1931, at p. 51.

36 Bergtora Sandvik, Kristin, “On the Social Life of International Organizations: Framing Accountability in Refugee Resettlement”, in Wouters, Jan; Brems, Eva; Smis, Stefaan and Pierre Schmitt (eds.), Accountability for Human Rights Violations by International Organizations, intersentia, Antwerp- Oxford-Portland, 2010, p. 287.

37 Abraham, A., “The Sins of the Savior: Holding the United Nations Accountable to International Human Rights Standards for Executive Order Detentions in its Mission in Kosovo”, American University Law Review, Vol. 52(5), 2003, p. 1291.

the human rights accountability of peace missions attracts increasing interest.** The significance rises as generally recognized human rights norms are among the primary rules that bind international organizations.’ The measures taken by peace missions in accordance with their international mandates are capable of having adverse effects on nearly all human rights guaranteed in contemporary international law. The peace-keeping missions may be engaged in operations involving persons indicted for war crimes. These operations may take place in cooperation with relevant criminal institutions. In the course of these actions different human rights may be negatively affected.*!

The expanded tasks which international organizations are entrusted with nowadays, lead them to play the role of government bodies in some parts of the world, which in turn introduces new possibilities for more destructive forms of harm over greater distances. As noted above, international territorial administration is one of the international institutions and activities that the IOs are involved in mainly. A lot of interests may be implicated, affected or could be at stake in these situations, under certain conditions and constellations, inter alia, the lives of the people and the future of the territory under the international administration.* In this respect, reference has to be made also to the environment that may be inevitably affected in the course of these kinds of international interventions and under international administration.“ As customary international law applies to all subjects of international law, it is clear that such customary human rights norms

38 Häußler, Ulf, “Human Rights Accountability of International Organizations in the Lead of International Peace Missions”, in Wouters, Jan; Brems, Eva; Smis, Stefaan and Pierre Schmitt (eds.), Accountability for Human Rights Violations by International Organizations, intersentia, Antwerp-Oxford- Portland, 2010, p. 215.

39 Wellens, K., Remedies against International Organizations, CUP, 2007; Kolb, R., et al, (eds.), L application du droit international humanitaire et des droits de l'homme aux organizations internationales, 2005, pp. 464-69; Reinisch, A., “The Changing International Legal Framework for Dealing with Non-State Actors”, in P. Alston, (ed.), Non-state Actors and Human Rights, 2005, at p. 37; A. Clapham, Human Rights Obligations of Non-state Actors, 2006; T. Ahmed and I. de Jesus Butler, “The European Union and Human Rights: An International Law Perspective”, 2006, EJIL, Vol. 17, 2006, p. 771.

40 Häußler, Ulf, “Human Rights Accountability of International Organizations in the Lead of International Peace Missions’, op. cit, p. 229.

42 On the International Territorial Administration in general and its basis see: Pajuste, Tina, “Legality of International Territorial Administration by the United Nations”, Finnish Yearbook of International Lam, Vol. XVIII, 2007, Martinus Nijhoff Publishers, Leiden/Boston, pp. 195-215, especially at p. 196.

44 For the discussion of the repercussions of the international administrations on, inéer alia, environment see: Keinanen, Katja, “International Law and the Interests of Liberal Market Economy: the Non-Issue of Environmental Protection in the Kosovo International Administration”, Finnish Yearbook of International Law, Vol. XVUI, 2007, Martinus Nijhoff Publishers, Leiden/Boston, pp. 9-31, specially at pp. 9-13.