Title: The responsibility of the United Nation in joint operations- Human rights, international humanitarian law and the ILC Draft 2011
Abstract: In the thesis, the author deals with the prerequisites required for the United Nations to be held responsible for the conduct of contributed national forces in an international military operation authorized by the Security Council. In 2011, the International Law Commission adopted 67 draft articles on the responsibility of international organizations, and one of the intentions of the author is to highlight the ongoing discussion concerning the interpretation of the draft articles, with focus upon the two terms breach of an international obligation and attributable to that organization. Further, the author seeks to compare the different arguments to general principles of international law, and conclude upon whether they correspond or not, and whether they can be considered correct.
The discussion increased significantly after the controversial judgement by the European Court of Human Rights in the Behrami-Saramati Case, where the Court argued that the United Nations are to be considered internationally responsible for the conduct of the contributed forces if the Security Council authorizes the military operation. The judgment is in contrast to the well-established principle of State responsibility applied by the International Court of Justice in the Nicaragua Case, where the Court required control over each individual act in order for a State to be considered internationally responsible for the conduct of a non-organ of the State.
In relation to the term breach of an international obligation, the author seeks to clarify the international obligations applicable upon the United Nations, and considers treaty law as well as customary international law, the Charter of the United Nations and the norms with the character of jus cogens. Due to the fact that the United Nations has not ratified any multilateral treaty concerning human rights or international humanitarian law, the author concludes that those treaties are not applicable upon the organization. The author further notes that there is an ongoing discussion whether customary international law, including the norms of jus cogens, and the UN Charter is applicable upon the United Nations or not, and if so, to what extent.
In relation to the term attributable to that organization, the author identifies the crucial question to be whether the UN or the contributing State possessed effective control over the contributed forces at the time of the conduct, and therefore should be considered responsible. The author presents three different interpretations of the term effective control, and highlights the advantages and disadvantages with each one of them before concluding that caution should be considered before the traditional interpretation applied in the Nicaragua Case is abandoned.
Publication Year: 2012
Publication Date: 2012-01-01
Language: en
Type: article
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