Author: Steven van de Put
Dossier: 75 jaar Mensenrechten-verklaring en VN-Vredeshandhaving: Een verkenning van de toekomst
Editor: VN Forum/Vereniging voor de Verenigde Naties
Human Rights and the UN are inherently linked. As is visible throughout the entire charter, human rights formed an important motivation for the organisation’s founding. This importance is also visible in the Universal Declaration of Human Rights being one of the first documents released by the organisation. Yet, when we look at perhaps the most visible tool of UN policy, namely peacekeeping, we can see that there seems to be little legal certainty as to how the UN is bound to protect these fundamental rights of individuals.
This contribution will aim to problematise this practice. In doing so, it will aim to raise three related points regarding human rights obligations. Firstly, it will state that there seems to be a general agreement that the UN would be bound to respect human rights whenever it conducts peace operations. Secondly, it will argue that whereas there seems to be agreement that the UN is bound by human rights, it is unclear what that currently entails when examining the actual obligations under this body of law. Lastly, it is proposed that this is problematic from the perspective of individuals, as it makes it difficult for them to guarantee the legal protections they are entitled to.
Agreement that the UN is bound to respect human rights
Even though the extent to which these human rights obligations affect peace operations is unclear, there does seem to be widespread agreement that the UN would be bound to respect human rights law. As a starting point, the UN has widely been recognised as having an international legal personality.[i] This entails it would have the general ability to have international legal obligations. It does not, however, also automatically place obligations on the organisation – further sources of international law would be needed to place these obligations on the organisation.
Arguments have been made that the UN would be required to respect human rights as these represent an element of customary law. As the customary status of this obligation would entail that they bind all entities in international law, this would include the international organisations which have an international legal personality.[ii] It provides a relatively straightforward reasoning whenever we consider that the UN would be required to respect these obligations.
Alternatively, consideration could be given to the UN charter as a source of human rights obligations. Commentators have argued that many of the obligations here, with their emphasis on respect for human rights should also be logically interpreted as placing the UN under an obligation to not violate these rights. Relying on the broader rules regarding treaty interpretation, such an argument can be defended.[iii]
Yet, while both of these arguments have in general been received positively, it is currently still a relative mystery regarding the actual content of these obligations. This is mainly the result of two characteristics, which the next paragraph will further explore.
The extent of the UN’s human rights obligations
As noted, although there seems to be a widespread agreement that the UN is bound by human rights obligations, it remains unclear how this exactly translates to actual peace operations.[iv] This is mainly the result of two controversies. In broad terms, this seems to be a result of disagreement about which human rights have obtained customary status, and how concepts such as jurisdiction interact with the framework of UN peace operations.
The first issue is that there seems to not be a widespread agreement on what human rights are considered to form customary law. This entails that while there might be agreement that the UN would be bound to respect those human rights obligations which have obtained this customary status, the debate about which rights this concerns is still ongoing. In very practical terms, this means that whereas there seems to be agreement that this is a source of legal obligations of the UN, the actual content of this legal source remains unclear.[v]
The second issue is a bit more technical. Even if we do not rely on the UN being bound by customary law, it is still unclear to what extent the UN would be bound to respect human rights law. This is a result of a characteristic of the human rights system, namely that parties are only responsible for respecting human rights that fall within their jurisdiction. For states, this traditionally meant that they were only responsible for the human rights of those residing in their territory. Whereas it has by now been recognised that territory is no longer a crucial characteristic, and states (and assumingly then, by extension also other entities with human rights obligations, such as the UN) can also hold jurisdiction outside of their territory, there is still an ongoing debate what some of the characteristics of this extraterritorial jurisdiction are.
Some human rights bodies have taken broad views regarding this extraterritorial applicability of human rights. Examples of this include the reasoning that if a state can influence these human rights, it likewise has human rights jurisdiction. Others, most notably the European Court of Human Rights, have taken a more conservative view and argued that only in exceptional cases of effective control parties would be responsible for the human rights of those individuals. [vi]
The effects
Crucially, the lack of clarity has widespread effects on potential human rights violations. For one to speak of a violation of international law, this must violate an obligation the other party holds. Unclarity regarding the extent to which the UN is bound can pose many fundamental questions during peace operations. Would the organisation, for example, be responsible for violations of the right of privacy of individuals? Leaving such questions unanswered entails that, ultimately, the legal protections available to these individuals are quite often inadequately implemented. This is a simple result of the fact that international law only recognises victims if their harm is a result of the violation of an international legal obligation.
As peace operations still form an important contribution to the maintenance of international peace and security, it would be worthwhile to make efforts to address this. Inspiration can be drawn by the approach the organisation has taken towards its obligations under International Humanitarian Law. In 1999, the Secretary-General’s Bulletin ‘Observance by United Nations forces of international humanitarian law’ was drafted, clarifying the UN’s peacekeepers’ obligations under this body of law. A similar document focused on the human rights obligations of the UN could contribute to a clarification as to how the UN would be bound to respect human rights whenever it conducts peace operations. Such a development could lead to a better protection of many of these fundamental rights in peace operations.
Steven van de Put
Captain Steven van de Put is a legal advisor in the Royal Netherlands Air Force. He is currently a lecturer at the Netherlands Defence Academy, where he is responsible for teaching the military law course for the air force cadets.
Before joining the Defence Academy he has worked at several levels of command, having worked as a platoon commander and at the battalion level. He recently completed his PhD research at Maastricht University which looks at the legal accountability of UN peacekeepers for human rights violations.
His main legal research interests are reparations, accountability, and international law in armed conflicts. He holds a L.L.M from Queen’s University Belfast.
The opinions expressed in this article are the author’s own and do not reflect the view of The Netherlands Ministry of Defence.
Sources
Simma, B., & Alston., P., (1988) “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles”. Australian Yearbook of International Law vol. 12.
Klabbers, J. (2009) “An introduction to international institutional law”. Cambridge University Press.
Milanovic, M., (2011) “Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy”. Oxford University Press.
Blokker, N., & Schermers., H., (2011) “International Institutional Law: Unity within Diversity, Fifth Revised Edition. Brill.
Daugirdas, K. (2016) “How and Why International Law binds International Organizations” Harvard International Law Journal vol. 57
Gill, T.D., and others (2017) “Leuven Manual on the International Law Applicable to Peace Operations”. Cambridge University Press.
Van den Driest, S. (2018). “Tracing the Human Rights Obligations of Un Peacekeeping Operations”. In: Summers J. & Gough A. (eds.), Non-state actors and International Obligations. Brill. P. 179-205.
Maus, S. (2020). “United Nations Peace Operations and Human Rights”. Brill.
[i] Klabbers p. 49-50.
[ii]Blokker and Schermers par. 1339. For a motivation of this reasoning, see Daugirdas p. 358-359.
[iii] Gill and others p. 31, Maus p. 95-97.
[iv] Van den Driest p. 179-181.
[v] See, for an example of this unclarity; Simma and Alston p. 106.
[vi] For a leading text on this topic, see the treatment by Milanovic.