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Human Rights - Between Idealism and Realism, Third Edition by Tomuschat, Christian (1st September 2014)

7 Right Holders and Duty Bearers

From: Human Rights: Between Idealism and Realism, Third Edition

Christian Tomuschat

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 February 2020

Rights holders — Corporations — De facto regime — Armed conflict, non-international — Insurgents and insurrection

(p. 112) Right Holders and Duty Bearers

Right Holders

A. Individuals

Nothing seems to be more trivial than to state that human beings are the holders of human rights. In a moral sense, no doubts can arise as to who deserves to be endowed with human rights. It was already pointed out that human rights have been conceived of as instruments permitting human persons to live in freedom and with dignity. Within a legal framework, by contrast, any analytical research must attempt to show that the rights concerned constitute true entitlements that have a specific relevance within that framework.

At international level, most human rights have their origin in treaties concluded in accordance with the rules of international law. The general universal treaties like the CCPR or the CESCR bestow their rights upon everyone, in accordance with Article 2 UDHR, and the same logic is the axiomatic premise of the regional treaties. Obviously, the treaties designed to protect only specific groups of the population confine their scope of application ratione personae to those groups (women, children, disabled persons etc). Since under general international law, as codified in the VCLT, treaties become binding only by acceptance (Article 11), nobody may acquire any rights from a treaty not made applicable to him/her by a state authorized to act on his/her behalf. Thus, in China human rights cannot be derived from the CCPR since China has abstained from ratifying that instrument. As soon as, however, the state of nationality of a person has bound itself by ratification or accession, the question arises whether a true legal entitlement has been conferred on him/her. It is uncontested that every state may establish such entitlements under its domestic law by either making the treaty concerned directly applicable by virtue of its legislative power or by issuing parallel national acts of legislation. What modalities states prefer for that purpose will be discussed in Chapter 10 below. However, the question remains whether, in addition to benefiting from rights within the national space, individuals can also be deemed to acquire a legal position under international law. It can clearly be gleaned from the texts of the relevant international instruments that it was the intention of the framers to provide the protected human being with true individual rights. The wording of Article 1 ECHR is unequivocal in that regard.1 The High Contracting Parties agreed to ‘secure to (p. 113) everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. Similar language can be found in the ACHR (Article 1), from which indeed unassailable rights of the human person are derived,2 while Article 1 AfChHPR is couched in considerably more cautious terms which appear to suggest that the main responsibility is placed on the states parties obligated to implement the commitments assumed:

The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.

But the fine tonalities of written language tend generally to be ignored by a practice that seeks to find a common denominator for all human rights treaties.3 Harmony is sought across national and continental boundaries possibly even in disregard of the relevant criteria of legal positivism. The recent judgment of the AfCtHPR in Tanganyika Law Society et al v Tanzania4 provides the most significant example in point.

Where the treaties concerned establish an international mechanism of review or monitoring under which everyone plausibly arguing that his/her rights have been encroached upon may file an international remedy no doubts may be entertained. The relevant rights are then firmly anchored in international law.5 Any aggrieved individual may vindicate them without needing the support of the home state, or even against the will of the responsible government, in any event as long as the review mechanism remains validly in force—some of the instruments establishing a remedy being susceptible to being denounced.6 In this regard, it does not matter whether the remedy concerned is conducive to a genuinely binding judgment or whether the applicant must content him/herself with a recommendation which the respondent state may reject without committing a breach of international law.7 The essential criterion is the fact that there exists in the international realm a mechanism which the aggrieved individual may set into motion with a view to ensuring that the rights enshrined in the treaty concerned become a living reality. Under those circumstances, one may rightly characterize the individual as a subject of international law.

In the EU, which resembles more a para-state entity than an institution under international law, the elevation of the individual to a level of parity with the states members has reached the highest conceivable degree. Anyone under the jurisdiction of the EU may invoke not only the rights of the EUCharter in his/her favour (p. 114) but additionally any rule of primary or secondary law that contains any benefit for him/her. At the last stage, a judicial pronouncement of the CJEU is guaranteed. It was the seminal judgment of the CJEU in Van Gend & Loos of 19638 which brought about this dramatic transformation of the European legal order.9 Accordingly, the European integration order was democratized. Everyone has become a participant with full legal rights.10 The two-class system of masters (the states) and subjects (the European citizens) was rigidly done away with regarding respect for, and observance of, the law in force. The famous case of the Jurisdiction of the Courts of Danzig, in which the PCIJ rendered an advisory opinion on 15 March 1928,11 was characterized by a somewhat different structure in that an international treaty had established the binding nature of the judgments of the Danzig courts vis-à-vis the authorities of another country (Poland). But it was precisely the availability of legal remedies which led the PCIJ to hold that ‘Danzig officials have a right of action against the Polish Railway Administration’. The sole existence of a substantive right would have been of little or no avail.

Where such remedies have not been brought into being, as for instance in the case of the CESCR, where the Optional Protocol has hitherto attracted only an insignificant number of ratifications (11), it is considerably more difficult to provide a persuasive answer. Individuals are not powerless. They can write to the members of the CESCRCee, requesting them to raise delicate issues that have emerged in the practice of the country concerned when examining the regular report of that country. However, this is an informal political process. Not much more substance is held by the complaints procedure under which individuals may submit their grievances to the HRC.12 This cumbersome procedure often ends with no result at all. In any event, the petitioner has no possibility of influencing the ongoing proceedings.

Human rights have also arisen under international customary law. It is self-evident that no specific procedures exist for the vindication of such rights. Procedures invariably require a legal text as their foundation. However, legal reasoning may draw some arguments from the fact that customary human rights comprise only hard core aspects, in particular those rights that enjoy special protection under international criminal law as now codified in the Rome Statute of the ICC. The crimes listed in that Statute have now an unchallengeable legal basis. At the same time, however, they derive from a second legal foundation in customary law, which prevails over any contradictory national legal enactments as the judgment of the International Military Court at Nuremberg of 1 October 194613 has made clear. The conclusion to be drawn from this configuration seems to be ineluctable. If genocide and torture, to name just the two most prominent offences classified as crimes against humanity, are unconditionally unlawful, the individual threatened by such (p. 115) acts must have a right of self-defence that flows from the human rights to life and personal integrity. That right of self-defence overrides any authoritative measures enacted at national level. It would amount to an unexplainable logical fracture to argue that persons attacked in their physical existence must de jure condone being slaughtered.14 Any person invoking self-defence as a form of self-help against a criminal state apparatus will of course have a difficult stand. It can’t be expected that the relevant authorities will recognize the legal position as just expounded. This is the historical experience of the right of resistance. Whoever opposes a criminal regime is by necessity deprived of the friendly environment of an international procedure but confronts the grim face of an authoritarian machine intent on breaking any resistance by whatever means.

Consequently, the question boils down to a definitional and largely semantic exercise. What are the criteria that must be satisfied if one wishes to know whether a given legal position may be properly called an individual right?15 It was Sir Hersh Lauterpacht who observed, many decades ago, that the acknowledgement of a substantive legal position should not be made dependent on its procedural enforceability.16 This proposition has been reiterated many times.17 Essentially, it makes little sense to discuss the general issue in abstract terms. In each and every instance, one has to examine with the utmost care whether any specifically legal consequences may flow to the benefit of an individual from the characterization of a right as a human right and whether individuals have a proper determinative role to play in the implementation of that right. Diplomatic protection, the classic instrument, acknowledges the individual only as an object of care, not as an actor entitled to appear on the international stage.18 It cannot be denied that a general judicial forum for individual rights that may have the flavour of an international origin is simply lacking. Private parties have access only to the existing judicial machinery of states. No international court for the pursuance of private claims under customary international law exists. It is therefore predominantly a matter of domestic law whether the invocation of international human rights is admitted or not.

In any event, the exercise by the relevant international institutions of a general welfare function—in particular: securing international peace and security or acting in the discharge of responsibility to protect by the Security Council under Chapter VII UNCh, examining the practice of a state within the framework of UPR—does not introduce the missing element into the legal scheme serving as the (p. 116) yardstick for the existence of an individual right. Extending the concept of holdership too far does not even yield an intellectual gain. Any purposeful action of public authorities in the discharge of their public-interest responsibility could then be seen as the confirmation of the legal nature as human rights of the indirect advantages accruing to the persons benefiting from such action. Thereby, one would call into question the great advancement brought about by the concept of human rights, to wit, that the individual is empowered to take, on his/her own initiative, formal steps for the protection of his/her personal sphere of interest, not having to call on public authorities to take remedial action.

The dilemma one is facing here has become clearly visible in the cases on diplomatic protection adjudicated by the ICJ. In LaGrand the Court held, formalizing that holding in the operative part of its judgment, that failure to inform an arrested alien of his right to have his consular authorities put on notice of his arrest in accordance with Article 36(1)(b) of the Vienna Convention on Consular Relations19 constituted not only a breach of the obligations incumbent vis-à-vis the home state of that person but amounted at the same time to a violation of his individual rights.20 Some years later, in Avena and Others, where similar negligent conduct of a host state had to be assessed, the Court confined its finding to the statement that the United States ‘breached the obligations incumbent upon it under that sub-paragraph’.21 Visibly, the Court shied away from reiterating its former characterization of the breach as a human rights violation.22 Indeed, the obligations under Article 36(1)(b) of the Consular Convention lack a remedy which the aggrieved individual could set into motion independently of the classic umbrella of diplomatic protection.23

In light of the foregoing observations, only a rather cautious conclusion may be drawn. The debate about the individual as subject of international law makes little sense. Here and there, one may detect tiny legal fragments which cannot be explained by relating them to a domestic legal order. This may be true, in particular, under the terms of international humanitarian law where the International Committee of the Red Cross discharges a supervisory function with regard to rights established for the victims of warfare.24 In other words, whoever wishes to establish a balance sheet of individual entitlements directly under international law cannot escape the necessity of collecting these variegated elements in order to get an accurate picture of the legal position.

B. Corporate bodies

The original impetus supporting the concept of human rights sprang from the concepts of dignity and equality of human beings. Such underpinnings are lacking in (p. 117) respect of juristic persons. Such persons have no physical bodies, their lives are not in danger, and they cannot be deprived of their freedom. Nonetheless, it may also be useful to grant some basic rights to corporate bodies. Where it is felt that economic activities should be placed under the special protection afforded by human rights, legal persons must by necessity be included since otherwise great inequalities in the marketplace would be caused. If property is guaranteed, that guarantee must extend to all actors in the commercial field. Additionally, it may be indispensable for the full protection of the rights of individuals to extend the protective coat to associations formed by them. Thus, freedom of religion would only have weak foundations if the religious denominations, which enable their members collectively to exercise their faith or belief, lacked any protective shield.25 Lastly, procedural rights cannot be granted selectively in proceedings in which natural and juristic persons are involved. Here, differentiated answers may be called for according to the inherent characteristics of a dispute.26

The relevant international treaties have responded differently to the challenge posed by the presence of corporate bodies. The ECHR was prepared, as from the very first hour, to include juristic persons in its scope ratione personae. Article 34—formerly Article 25—permits applications to be brought by ‘any person, non-governmental organization or group of individuals’, signalling through this procedural provision that in particular ‘non-governmental organizations’ are to be considered as holders of the rights under the ECHR—to the extent that such rights are by their very nature applicable to entities other than natural persons.27 In Protocol No 1, which came into existence more than one year later, it was explicitly clarified with regard to one specific component of the protective regime that every ‘natural or legal person’ is entitled to the peaceful enjoyment of his possessions (Article 1(1)). The CCPR did not follow suit. Article 2(1) describes the obligation of states as securing to ‘all individuals’ the rights listed in the subsequent articles. This limitation was no oversight. Since corporate bodies are frequently viewed by critics as agents of the capitalist system, it was not possible, under the conditions prevailing in the UNGA at the time of the adoption of the CCPR, to protect their interests as well. In its jurisprudence the HRCee has faithfully complied with the intentions of the drafters, rejecting all communications submitted by juristic persons.28 Its General Comment on the obligations of states under the Covenant also specifies that the human rights under the CCPR accrue only to natural persons.29

The ACHR declares in Article 1 that the rights recognized therein are to be enjoyed by ‘all persons’, specifying, however, in para 2 of this provision that ‘person’ (p. 118) means ‘every human being’. Corporate bodies have thereby been excluded from the scope of the ACHR. The AfChHPR provides in Article 2 that only ‘individuals’ shall be the holders of the rights set out therein. However, in its practice the AfHPRCion has departed from that restriction in some of its decisions without, however, giving any justification for its preference of teleology over the written text.30 The most recent instruments also cover only natural persons. The Arab Charter on Human Rights specifically addresses ‘individuals’ (Article 3(1)). On the other hand, the ASEAN Human Rights Declaration speaks generally of ‘persons’ but makes clear, through the proposition in Principle 1 that ‘[a]‌ll persons are born free and equal’, that legal entities do not come under the shield of protection. It is self-evident that under a regime primarily oriented towards economic activities private entities must also partake of the benefits of a human rights regime. However, the EUCharter is not well drafted in this regard. Whereas Article 16 leaves it open as to who enjoys the freedom to conduct a business, Article 17 dealing with the right to property uses the ambiguous language of ‘everyone’ without thereby commencing a retrogressive process since the corresponding rights of legal persons have long since been recognized in the jurisprudence of the CJEU.31

It is obvious that measures taken against a corporate body can infringe the rights of persons behind that undertaking. Normally, shareholders will not be able to allege that their patrimonial rights have been injured. This is the lesson of the Barcelona Traction judgment of the ICJ.32 However, if a natural person happens to be the sole or dominant shareholder of a company, it can well be assumed that his/her rights have been interfered with by the disputed measure.33

C. Peoples

Lastly, some of the relevant international instruments also recognize peoples as holders of human rights. The two International Covenants establish the right of self-determination in their common Article 1. Already through its title the AfChHPR communicates its intention to confer its entitlements not only on individuals, but also on peoples—which raises the question whether different peoples can exist inside a nation state. The same question must be addressed in respect of the rights of the third generation as politically propagated in the fora of the United Nations and, more recently, the Arab Charter on Human Rights (Article 37) and the ASEAN Human Rights Declaration (Principles 35, 38). In all of these instances the student (p. 119) must try to find out whether those rights are conceived of as being directed against the government of the peoples concerned or against any external entities.34

II  Duty Bearers

A. States

Traditionally, state power was seen as the most threatening enemy of the individual human being. Therefore, human rights were primarily conceived of as weapons of defence against abusive exercise of public authority. Undue state interference was to be checked. Accordingly, when individual complaints procedures were introduced, no respondent was envisioned other than the state whose conduct was challenged. Article 34 ECHR set the pace by providing that individual applications may be filed by individuals claiming that any of their rights have been violated by one of the ‘High Contracting Parties’. The same model can be found in all other treaties for the protection of human rights. It needs not be specifically mentioned that ‘the state’ is a broad concept, covering any authority vested with sovereign powers, whether under the control of the central government or discharging delegated powers with some autonomous discretion.35 Dogmatic construction may furthermore lead to the conclusion that even de facto regimes that have established themselves in the territory of a state party to a human rights convention are subject to the obligations flowing therefrom (eg, Turkish Republic of Northern Cyprus, Abkhazia).36 However, such inferences remain invariably at an abstract level since the determinative test will always fail, the de facto entity concerned lacking the status of a legitimate respondent in any available complaint mechanism.

To date, scholarly debates have not come to a clear conclusion as to whether insurgent movements that have not yet been able to consolidate themselves as de facto regimes may also be deemed to have to respect human rights. Whatever dogmatic thinking may consider to be the correct outcome, the fact is that the Security Council, with regard to internal armed conflict, has long since begun a practice of calling upon governmental forces as well as insurgent units opposing them to respect and observe not only international humanitarian law (IHRL), but also human rights law (IHL).37 This pragmatic approach may be at odds with the traditional concept of human rights as a defence against governmental power only. However, precisely in situations of non-international armed conflict an assessment (p. 120) solely of the governmental forces involved by the yardstick of human rights would lead to a distortion of realities in the eye of the observer. Not holding to account the anti-governmental side by the same standards would look like a partisan biased attitude.

When the concept of human rights was broadened to include, over and beyond purely ‘negative’ duties, also ‘positive’ duties, no need arose to change the existing personal configuration. Again, it was the state that had to assume the burden of satisfying the new requirements. Allegations that public authorities have failed adequately to take care of their mandate of protection can be easily handled within the framework of the procedures originally brought into operation for purely defensive purposes.

B. International organizations

1. European Union

In only a few instances will it be necessary to secure protection against acts of governmental power issued by organs of international organizations. Most international organizations constitute no more than centres of cooperation and consultation which lack any decision-making powers vis-à-vis individuals.38 The European Union (EU) does not fit into the traditional pattern. It is a well-known fact today that it has been endowed with far-reaching powers over the whole breadth of the tasks it is mandated to perform. According to Article 288 TFEU, the institutions of the EU can make regulations, issue directives, and take decisions. All of these acts produce binding effects for their addressees. Consequently, the question arises whether those who are subject to the jurisdiction of the EU organs enjoy substantive guarantees shielding them from any excessive interference with the rights which they could rely upon against their own governments. First of all, the EU, as an entity under international law, remains bound by the general rules of international law39 which, pursuant to the case law of the CJEU, are an integral element of the Union’s legal order.40 Inasmuch as the basic human rights have acquired the status of customary international law, respect for such rights translates into obligations for the EU institutions. To date, this specific component of the legal edifice constructed in the course of the European integration process has played only a marginal role in actual practice.41 It pertains to speculative reasoning whether, additionally, the EU is bound by treaties to which its member states are parties. With regard to the ECHR, which is now explicitly mentioned as an instrument to be observed (Article (p. 121) 6(3) TEU), many writers had held that it should be considered applicable pursuant to the rules on state succession, resorted to by way of analogy.42

Secondly, it was necessary to establish an autonomous ‘constitutional’ system of human rights guarantees within the Communities. Obviously, it would have been almost impossible to tie the Community organs to a simplistic addition of the constitutional guarantees of all the member states. Article 6(3) TEU now refers to the ‘constitutional traditions common to the Member States’ as ‘general principles of the Union’s law’. After many years, the need was felt to set out in a written instrument the specific human rights philosophy of the EU. Thus, the EUCharter was adopted on 7 December 2000.43

Furthermore, it was necessary to establish a system of judicial protection which grants EU citizens—and anyone else adversely affected by such determinations—a degree of protection which is by and large equivalent to the kind of protection a person enjoys in his/her national environment. Notwithstanding some criticism, the system ushered in by the TFEU essentially lives up to this assignment. Someone who feels that his/her rights have been breached by an act of Union power can either challenge that act directly by instituting proceedings before the CJEU according to Article 263(4) TFEU, or he/she can contest national acts taken on the basis of European legislation before national tribunals which, should they share the view that inconsistency does in fact exist between the relevant act of secondary legislation and any higher-ranking treaty provision or principle, may then—or according to their place in the judicial hierarchy are even required to—refer the case to the CJEU (Article 267 TFEU). In such instances, human rights can play a decisive role.

In sum, it can be said today that the EU, which began as a common market for the mutual exchange of factors of production under a predominantly economic perspective, has by now arisen to a status of an entity whose human rights guarantees have the same quality as those to be found in national constitutions. It has become a polity, obviously with powers still confined essentially to the economic area, but with an outreach far into other fields of governmental activity.

One of the pivotal issues in respect of human rights within the EU concerns the power of the ECtHR to assess the compatibility of national acts based on Union legislation with the rights guaranteed under the ECHR. Since the EU is not a party to the ECHR, no direct challenge in Strasbourg is possible.44 Applications can be directed only against state conduct. Clearly, states should not be able to evade their commitments under the ECHR by acceding to the (later) integration treaties. As a consequence, states could be confronted with contradictory requirements, having to comply, on the one hand, with binding legislative acts of the Union, and, on the other, with the obligations enshrined in the ECHR. The ECtHR has (p. 122) found a Solomonic solution, which closely resembles the case law of the German Constitutional Court:45 it contents itself with ascertaining whether the general level of protection of the Union is equivalent (not identical) to the level set by the ECHR. Having found that such equivalence exists, it came to the conclusion in the Bosphorus case that it was not incumbent upon it to proceed, regarding a Community regulation, to an autonomous balancing test as to whether the impounding of a Yugoslav aircraft, leased by a Turkish enterprise, was in full accordance with the guarantee of property provided for in Article 1 of the [First] Protocol to the ECHR.46 This jurisprudence could not be maintained if the EU, as directed by Article 6(2) TEU, accedes to the ECHR.

2. United Nations

Under the legal regime established by the Charter of the United Nations (UNCh) and the statutes of the specialized agencies, the need for substantive human rights protection, to be implemented through some judicial mechanism, was far less evident originally.47 Generally, the United Nations lacks the power to take binding decisions, and even less a power of enforcement. Only the Security Council holds authority under Chapter VII of the Charter to take measures with a view to combating threats against international peace and security. Generally, however, the Security Council refrains from directly addressing individuals. Its embargo resolutions, in particular, are invariably directed to states which are enjoined to take the necessary measures of implementation by first enacting the requisite legal rules and subsequently enforcing those rules against those active in international business transactions.48 Thus, the resolutions of the Security Council generally lack direct effect vis-à-vis individuals. Therefore, no need was initially perceived to grant judicial remedies to those whose rights or interests may be affected by measures under Chapter VII.49(p. 123)

Yet, with the emergence of peacekeeping, the screen which originally separated the United Nations from the man and the woman on the street progressively disappeared.50 It is obvious, too, that resolutions which do not directly hit individuals may affect them indirectly to the extent that they produce binding effects which the UN member states are required to comply with.51 As a consequence, debate emerged on the applicability of the international human rights regime to the Security Council. The Security Council is not a party to any of the relevant conventions which are all accessible to states only. But it is bound to exercise its duties in accordance with the purposes and principles of the UNCh (Article 24(2)). It can therefore be argued that it must comply with the essence of the human rights philosophy enshrined in the UNCh to the extent that the discharge of its mandate under Chapter VII is not impaired.52

Accordingly, the Security Council must take into account the repercussions of its measures on the affected population.53 In this connection, it was contended time and again that the comprehensive economic embargo imposed on Iraq after its abortive attempt to annex Kuwait by force drove up infant mortality rates to frightening heights.54 The Oil for Food Programme established by SC Resolution 986 (1995) did not seem to alleviate appreciably the plight of the Iraqi population. Eventually, after the successful US-British invasion of Iraq in March/April 2003, the Security Council lifted the embargo by SC Resolution 1483 (22 May 2003). Although every nation is to some extent responsible for the political regime under which it lives, the international community cannot simply equate a people with its leaders. To be sure, sanctions are designed to strike home, but there must be certain limits, to be derived from human rights law or humanitarian law or both regimes.55(p. 124) No people should be pushed into starvation, a principle which is a traditional element of humanitarian law.56 It is for this reason that in the recent past sanctions have been ‘smartened’ or better targeted. Instruments to which recourse is had are the freezing of assets and travel bans issued against responsible political leaders.57 General sanctions mostly affect the lower classes of the population of a given country in the hardest way.

In other respects, too, the general picture has changed dramatically.58 On the one hand, the Security Council has established two International Criminal Tribunals. Mandated with prosecuting those who have committed grave crimes in the former Yugoslavia and in Rwanda, these Tribunals have to deal directly with all those who take part in the proceedings which take place before them: arrest warrants must be issued against persons under indictment, witnesses may have to be fined because they refuse to testify,59 and lawyers may have to be refused audience because of incorrect behaviour.60 In all of these instances, a direct relationship between the two Tribunals and the addressees of their decisions comes into being. Generally, decisions susceptible of injuring individual rights may be appealed. When such an appeal is deemed admissible by the Tribunal concerned, it will have to evaluate it in light of the applicable rules, including general human rights standards. Recently, the question has been raised whether acts taken by the ICC might conflict with guarantees set forth by the ECHR.61 Indeed, pretrial detention was rather problematic in the early practice of the ICTY and could again become a problem for the ICC,62 and in the Rome Statute the lack of clearly defined penalties could be attacked from the viewpoint of the proposition nulla poena sine lege.63

An even more complex situation has arisen in territories where the United Nations has assumed the tutorial functions of a trustee. The prime example was for many years Kosovo, where in accordance with SC Resolution 1244 (1999)64 an international civil presence (UNMIK) and an international security presence (KFOR) cooperated with a view to pacifying the situation and securing ‘substantial autonomy and meaningful self-administration’ to the inhabitants of the province as an ‘interim political framework’.65 Originally, it was by no means clear whether (p. 125) any remedy could lie against the decisions of the UN administration. The question became more urgent as time went by but was not seriously tackled since it could be anticipated that Kosovo would sooner or later acquire the status of a sovereign state. Indeed, the majority Albanian group of the population proclaimed the independence of Kosovo on 17 February 2008, supported by the major Western countries (France, Germany, United Kingdom, and United States), but against the opposition of Serbia and its main ally Russia.66

It was obvious that the population of a territory that was removed from Yugoslav jurisdiction precisely on the ground that Yugoslavia had grossly violated generally accepted human rights standards could not remain deprived of enjoyment of human rights because it was placed under some kind of trusteeship authority.67 The Venice Commission of the Council of Europe recommended the establishment of a Human Rights Court for Kosovo that would hold jurisdiction to review acts both of UNMIK and of KFOR.68 The issue of judicial protection has not become moot since SC Res 1244 continues to remain in force, providing in particular the basis for the 2008 EULEX Rule of Law Mission of the European Union.69 No review mechanism had originally been planned to enable persons to assert claims against acts by EULEX authorities deemed to violate human rights. To close this gap, in 2009 a Human Rights Review Panel mandated to look into such allegations and to make recommendations, as appropriate, to the EULEX head of mission was established.70 Similar problems arose in the past with regard to the tutorial function exercised by the international community vis-à-vis Bosnia-Herzegovina.71 Inasmuch as the United Nations continues to assume governmental tasks with (p. 126) direct effect vis-à-vis private persons, it will have to elaborate general rules for dealing with such situations. It will have to specify, in particular, whether it will respect and observe the legal instruments which were elaborated under its auspices within its norm-setting bodies.72

Under these circumstances, it was tempting for persons believing that they had suffered injury at the hands of the two ‘presences’ governing Kosovo to make use of the remedies provided for under the ECHR. Since neither the United Nations nor NATO is subject to the jurisdiction of the ECtHR, applicants had no other choice than to try to target the troop-contributing countries party to the ECHR. It was already pointed out that the ECtHR denied the admissibility of such applications against France, Germany and Norway in the two cases of Behrami and Saramati for lack of jurisdiction.73

While the situation in Kosovo has already proved to be transitional in nature, some procedural mechanism should be put into place for the ever-growing number of instances where the Security Council does not confine itself to issuing orders addressed to states, but itself identifies—through a subordinated committee74—the persons which it wishes to target. The most salient examples have emerged in connection with the fight against terrorism. In fact, SC Resolution 1267 (1999) and a number of subsequent similar resolutions75 enjoin states to freeze the assets of ‘individuals, groups, undertakings, and entities’ suspected of being related to Al-Qaeda or the Taliban, or to deny such persons the right to travel freely.76 It is not known from which sources the committees gather the lists of names of alleged supporters of the relevant criminal organizations, which are transmitted to the member states. As it appears, intelligence services have been and are the main providers of information. In any event, the UN member states, for which in Western Europe the European Community/Union had to act because of the transfers of powers that had taken place on the basis of the Community treaties, had no choice but to adopt appropriate internal acts suited to implement the required freeze. Originally, protection of the individuals concerned was essentially committed to their states of nationality, which of course are free to ensure their defence by making appropriate representations to the sanctions committee concerned. Diplomatic protection works also vis-à-vis an international organization. In general, however, the defence of the persons put on the black lists was not sufficiently guaranteed. Due process of law was absent. In particular, even today judicial remedies are not available against determinations by the Security Council.

Given this state of affairs, persons feeling unjustly classified as suspected terrorists have challenged individual decisions and regulations issued in compliance with (p. 127) the relevant resolutions of the Security Council. The CFI had to deal with such suits firstly in two judgments of 21 September 2005.77 Recognizing that reviewing the lawfulness of the Community regulations in issue, which reproduced textually the lists established by a sanctions committee of the Security Council, amounted to reviewing the lawfulness of the action of the Security Council itself, it held that it was prevented from discharging its judicial powers in the normal way. According to the philosophy of the UN Charter, Security Council resolutions were not subject to any such review, and Article 103 of that instrument established its precedence over any international treaty commitment to the contrary. However, the CFI made an important reservation: even the Security Council was not above the law. It was not entitled to derogate from any rules of jus cogens.78 According to its judgment, none of the principles involved in the instant case, in particular the protection of private property or the right to be heard, pertained to the class of jus cogens. On appeal, the CJEU ruled that any legislative act issued by Union authorities had to respect the full panoply of fundamental rights enshrined in the Union’s legal order, even when the European measure was nothing other than a transposition of the relevant resolution of the Security Council. In connection with and as a response to the Kadi proceedings, the Security Council greatly improved the mechanism of blacklisting.79 States submitting a proposal for blacklisting must provide specific factual details. In particular, individuals feeling unjustly identified as terrorists or sponsors of terrorism may on their own submit a request for de-listing by addressing an Ombudsperson entrusted with examining that request and making appropriate recommendations to the relevant sanctions committee.80 The fact remains however that in case of lack of consensus among the 15 members of a sanctions committee the case may be referred to the Security Council itself where a veto cast by a permanent member cannot be overcome. Judicial review has not been introduced and will certainly not be approved in the near future by the permanent members of the Security Council, who feel that any judicial monitoring of their conduct might jeopardize their eminent voting powers. The general question is whether human (p. 128) rights law requires under any circumstances the availability of recourse to a judicial body where individual rights may have been infringed.81

In the case of Nada, the Swiss Federal Court felt that it could not entertain charges brought against the Swiss Government for alleged violations of his right to respect for private and family life under Article 8 ECHR through curtailment of any opportunities to travel freely through Swiss territory since Switzerland was bound by an anti-terrorism resolution of the Security Council.82 The ECtHR did not share that view. It advised the Swiss judges that less intrusive means could have been found to honour Switzerland’s obligations under the UNCharter.83

3. World Trade Organization

Under the regime of the treaties covered by the WTO, the legal problem is of a different nature. The WTO has not been entrusted with enforcing its own law. States parties which feel adversely affected by practices of another state party that are contrary to its obligations may turn to the WTO to request a ruling on their grievances. In such proceedings, the question arises whether non-compliant states may invoke their human rights commitments to justify their conduct. The text of GATT 1994 gives only limited space to human rights concerns. The main provision in point is Article XX(b), pursuant to which states may take measures ‘necessary to protect human, animal or plant life or health’. Generally, the doctrine applies that each state has to take care of the compatibility of the obligations into which it has entered. Inconsistencies do not normally lead to unlawfulness of one of the conflicting obligations. Only norms of jus cogens prevail in all circumstances. But it is highly improbable that jus cogens might impede implementation of duties arising from one of the treaties placed under the authority of the WTO.84 Nonetheless, in a world where human rights progressively gain importance, belonging to the comprehensive framework of general international law, their relevance in trade disputes will necessarily increase. In particular, the doctrine of systemic interpretation, as it has crystallized in Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), directs authorities entrusted with interpreting an international treaty to take into account ‘any relevant rules of international law applicable in the relations between the parties’.85 Within the scope ratione materiae of the WTO, the rights (p. 129) under the CESCR are of great relevance. Concerning the right to work, for instance, assessments may vary as to whether a planned measure will create employment or on the contrary increase unemployment, in the long run at least.86 But when the right to health is in issue, states must enjoy a wide margin of discretion. This was explicitly recognized by the report of the Appellate Board in the EC-Asbestos case, where it stated quite forcefully that the aim pursued, namely the preservation of human life and health through the elimination, or reduction, of the well-known, and life-threatening, health risks posed by asbestos fibres, was a value of paramount importance.87 Patents, in particular, may interfere with the right to health. Finally, the right to food also requires careful attention when new agreements are drafted within the framework of WTO.88

C. Individuals

1. General89

Some of the human rights instruments declare that individuals do not only enjoy rights but are at the same time required to shoulder duties. The UDHR took the lead by stating:

Everyone has duties to the community in which alone the free and full development of his personality is possible.90

Neither the two Covenants of 1966 nor the ECHR contain a similar provision. The Covenants confine themselves to a statement in the preamble noting that individuals have ‘duties to other individuals and to the community to which he [sic] belongs’, while the ECHR totally abstains to speak of duties. The ACHR has opted for a more cautious approach by recalling that every person ‘has responsibilities to his family, his community, and mankind’ (Article 32(1)).91 By contrast, the AfChHPR devotes an entire chapter to individual duties (Articles 27 to 29) where an extensive list of (p. 130) such duties is set out. The ASEAN Human Rights Declarations shares the view that duties should be a corollary of the guaranteed rights (Principle 6):

The enjoyment of human rights and fundamental freedoms must be balanced with the performance of corresponding duties as every person has responsibilities to all other individuals, the community and the society where one lives.

All these propositions must be characterized as political statements reminding everyone that any human community rests on the voluntary cooperation of its members. In legal terms, the broad formulations just cited are unusable as bases of genuine legal obligations. The rule of law requires that the duties imposed by a state on persons under its jurisdiction be accurately defined. Vague general clauses would not be in keeping with the legitimate expectation that the power of the state be constrained so that its actions become foreseeable for the citizen. Legal certainty would be jeopardized by overbroad provisions permitting interference only determined by its goals. Additionally, the principle of subsidiarity must be heeded. The international community should not burden itself with tasks that are best discharged by states at the domestic level.92

From this perspective, some initiatives of human rights bodies deserve being criticized. The ESCRCee expressed the following view in its General Comment No 21 on the right of everyone to take part in cultural life:

While compliance with the Covenant is mainly the responsibility of States parties, all members of civil society—individuals, groups, communities, minorities, indigenous peoples, religious bodies, private organizations, business and civil society in general—also have responsibilities in relation to the effective implementation of the right of everyone to take part in cultural life.93

The main objection is overcome if one comes to the conclusion that ‘responsibility’ lacks any specific legal connotation. But serious substantive reservations remain. Apparently, the CESCRCee views cultural life as the outcome of a process to be steered from above by an almighty state, without acknowledging that cultural life arises from the spontaneous activities in a free society. Legal commands are not an inspirational source for cultural life. The presumed ‘responsibility’ would strangle any kind of creativity.

The legal architecture of the EU can hardly be compared to the configuration under specific human rights treaties since the EU has taken on features of a para-state entity, as already noted. Direct applicability of its legal acts with their rights and obligations pertains to the normalcy of its legal order. Nonetheless, it should be observed, en passant, that the EU has endeavoured to submit private actors to a regime of non-discrimination that comes close to the cobweb constraining the exercise of state power. On the basis of Article 13(1) TEC, now Article 19(1) TFEU,94 the legislative organs of the EU have enacted directives which prohibit (p. 131) discrimination on account of gender and racial or ethnic origin;95 a proposal for a much broader directive is currently under consideration. These directives have a special nature in that they exceed the usual law and order function of the state, burdening private parties with the same obligations as they are otherwise incumbent only upon public authorities in order to establish a legal space freed from any kind of discrimination in private relationships.

2. International criminal law

Stock-taking regarding the position of the individual as passive subject of international law is not complete without drawing attention to the field of criminal law. According to the classic model of division of functions between states and the international community, norm-setting is the task incumbent upon states inasmuch as any criminal punishment requires a legal basis. It was the Nuremberg proceedings against the major leaders of the Nazi regime in Germany which opened up a new stage in the development of criminal law. Their paradigmatic point of departure was the assumption that certain offences, on account of their egregious nature, were punishable under international customary law. The Statute of the Tribunal96 provided for three classes of such offences: crimes against peace, war crimes, and crimes against humanity. Understandably, the Tribunal upheld this conventional pre-determination of its powers, convicting and sentencing most of the accused on that basis.97 Thus, a direct relationship between international norms and the perpetrators was established. German law was not taken into account.

This construction of the legal position was not uncontroversial. Eventually, however, it found general recognition. Thus, the punishing power of the ICTY and the ICTR was also founded on the presumed rules of customary international criminal law. The example shows that the international community may directly target individuals if pressing social needs motivate it to embark on such a strategy.

D. Private corporations

Today, another key issue is whether third parties, private actors, should also be bound to respect human rights guarantees in their conduct vis-à-vis other private parties. Generally, the answer should be negative. Human rights are needed because state authorities dispose of paramount powers of command. For their requests they are not dependent on the consent of the addressees. They may decide unilaterally. Their authority should be predicated on democratic legitimacy but ad hoc they (p. 132) are dispensed with having to seek agreement, ex ante or ex post, with the citizens affected by the sovereign measures in issue.

In private relationships, there is no structural superiority of any actor by virtue of law. Private persons are supposed to take care of their interests according to their own wishes and preferences. Ideally, contracts are based on the free consent of all participating parties. And yet, it is well known that the imagery of perfect equality of all actors in the economic field constitutes a fallacy. In many societies, oppression has its source in factual might that derives from economic inequality. From the viewpoint of the individual, it may often not matter whether a state agency or a powerful social actor encroaches upon his/her rights.

The task of generating in national societies general conditions of peace and welfare without any discrimination requires Herculean efforts. It is the daily challenge for politicians in charge of governing their countries, going much beyond ensuring respect for human rights. Traditionally, societies have sought to establish a framework of freedom through their civil law, in particular freedom of contract, by establishing criminal prohibitions and, in the economic field, by rules of competition law. To date, international law has tackled the problem of societal inequality only partially, in particular by combating racial discrimination and by attempting to elevate women to a level of true equality with men, not only vis-à-vis the state, but also in societal dealings. The question is whether a quantum leap is necessary in order to bring about fundamental improvements. To opt for extending the scope ratione personae of human rights to powerful societal actors (Drittwirkung or horizontal effect) is seen by a growing trend in the legal literature as a promising strategy.98 Yet many risks are inherent in such a comprehensive approach to human rights. To overthrow the fine texture of domestic legal regimes by replacing them with the somewhat rough and almost primitive rules of international human rights law would often not mean progress, but instead would mean abandoning precious civilizational achievements.99

Domestic legislation has consistently attempted, in many countries for more than a century, to support the weaker elements of the population. Perhaps the most important field of such caretaker assistance is labour law, where trade unions took the first steps but still needed the active involvement of state authorities in the pursuance of their goal to achieve, vis-à-vis the employer side, adequate conditions of work for the labour force. When the ILO was founded in 1919, it was hoped that by elaborating international conventions and recommendations the whole world would, in the long run, be placed under a tight network of legal norms that would satisfy all legitimate needs. This hope has not materialized. First of all, there remains the fact that states are free to accept, or keep away from, international treaties. As already pointed out, the status of ratification of the treaties concluded under the auspices of the ILO is hardly satisfactory.100 Secondly, in many countries public authorities find themselves (p. 133) in a fairly weak position vis-à-vis business interests. They simply lack the factual means to enforce the labour legislation in force. Lastly, members of the workforce themselves do not necessarily have the support of the judiciary when they attempt to enforce their entitlements by legal actions brought to the courts. They may even become threatened if they resort to legal remedies.

It therefore seems tempting to change the legal configuration by switching from domestic law to international regimes which bring into operation, under international supervision, comprehensive sets of rules for correct and legitimate entrepreneurial conduct, including direct claims of workers against their employers. Many valid grounds seem to support that approach. First of all, it emerges from simply reading statistics that the economic power of a number of multinational corporations by far exceeds the economic capacities of many developing nations. As a result, the corporations are able to act largely without any governmental control by their host states. It would therefore seem appropriate to involve the home states concerned, imposing on them the duty to monitor the conduct of their corporations even when these are operating abroad.101 Alternatively, an international system of surveillance could be developed. In any event, a sober analysis of the relevant facts is necessary. It is sometimes too readily assumed that all transnational corporations (TNCs) are involved in criminal activities.102

Accordingly, many initiatives have been launched with a view to establishing a universal legal framework for multinational corporations, proceeding from the axiomatic premise that human rights are paradigmatic foundations of the entire legal order, not confined to the relationship between states and their citizens.103 Human rights indeed embody a general call for justice and equity. In this regard, the German Constitutional Court has led the way by holding that human rights epitomize ‘objective values’ that should permeate societal life in its entirety.104

On the level of positive law, however, to date little if anything has materialized. The OECD, which elaborated Guidelines for Multinational Enterprises, last (p. 134) revised in May 2011,105 has consistently emphasized that compliance with these Guidelines, which constitute no more than recommendations, is voluntary.106 Similar good practices have been proclaimed by the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy.107 In 2000, at world level the Global Compact108 was launched as an initiative of former UN Secretary-General Kofi Annan who, in an address to the World Economic Forum in January 1999, had invited business leaders to promote and respect in the areas under their influence a number of key principles, in particular human rights, relevant to economic activities. Ten principles were proclaimed as ‘landmarks of orientation’.109 Thousands of enterprises world-wide have responded to the call by Kofi Annan, but the initiative has remained entirely voluntary and does not purport to establish a binding legal regime.

By contrast, an initiative taken by the UN Sub-Commission on the Promotion and Protection of Human Rights was intended to frame precisely such a truly obligatory legal framework for commercial undertakings. On 13 August 2003 it adopted ‘Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights’.110 The first paragraph of these ‘Norms’ provided:

States have the primary responsibility to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including ensuring that transnational corporations and other business enterprises respect human rights. Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups.

While maintaining that indeed it is incumbent, in the first place, on states to see to it that human rights be complied with in the business community, the resolution postulates at the same time a directly binding effect for private actors. To advocate such a third-party effect of human rights amounted to an almost revolutionary step. The HRCion did not support such progressive thinking. By decision 2004/116, 20 April 2004, it communicated to the Sub-Commission that the (p. 135) draft had not been commissioned by it and that it had ‘no legal standing’. Yet, under the authority of its Resolution 2005/69, 20 April 2005, a Special Rapporteur on the issue of human rights and transnational corporations and other business enterprises was appointed. This Special Rapporteur, John Ruggie, a US citizen and special advisor to former Secretary-General Kofi Annan in establishing the Global Compact, was openly critical of the ‘Norms’ in his first report.111 He pursued the line that business entities should act on the basis of a set of principles and rules of a recommendatory nature only. His final report on the issue of human rights and transnational corporations and other business enterprises was published in 2011.112 It contains as an annex ‘Guiding Principles on Business and Human Rights’. While these principles postulate that business enterprises should respect human rights (Principles 11, 23), it remains entirely open whether such transfiguration ratione personae entails any adjustments or adaptations concerning the substantive content of the relevant rights. The main responsibility for ensuring observance of human rights lies, according to the Guiding Principles, with states, which have to ensure observance of human rights by business enterprises within their territory or under their jurisdiction—a determination which has to be specified. The HRC endorsed the conclusions of the report.113 An appropriate format for their implementation will now have to be found. A working group for that purpose was established by the same resolution.114 In particular, it will have to be established to what extent the home state of an undertaking bears responsibility for activities carried out outside the national territory.115


1  Confirmed by ECtHR, Ireland v UK, Series A No 25, 18 January 1978, 91 § 239.

2  IACtHR, Advisory opinion OC-6/86, A 6, 9 May 1986, para 21.

3  The AfHPRCion, too, has unreservedly embraced the doctrine of individual rights, see, eg, Sudan Human Rights Organisation & Another (communication 279/03-296/05, 27 May 2009) paras 146–68.

4  Of 14 June 2013, (2013) 33 HRLJ 18, at 24 para 98.

5  See, eg, C Tomuschat, ‘Individuals’ in J Crawford et al (eds), The Law of International Responsibility (Oxford: OUP, 2010) 985, at 986.

6  See, eg, Article 12 OP-CCPR.

7  All complaints mechanisms at universal level end with ‘views’ or ‘recommendations’. None of the competent expert bodies has been vested with true decisional powers.

8  CJEU, case 26/62, Van Gend & Loos, [1963] ECR 1.

9  See Court of Justice of the European Union, 50th Anniversary of the Judgment in Van Gend & Loos 1963-2013 (Luxembourg, Office des publications de l’Union européenne, 2013).

10  See also the contributions to the Joint Symposium of the EJIL with the International Journal of Constitutional Law, (2014) 25 EJIL 83.

11  Series B No 15.

12  See below ch 11, 13.

14  See C Tomuschat, ‘The Right of Resistance and Human Rights’ in UNESCO (ed), Violations of Human Rights. Possible Rights of Recourse and Forms of Resistance (Paris: UNESCO, 1984) 13.

15  See G Gaja, ‘The Position of Individuals in International Law: An ILC Perspective’ (2010) 21 EJIL 11.

16  H Lauterpacht, International Law and Human Rights (New York: Praeger, 1950) 54.

17  NJ Udombana, ‘The Right to a Peaceful World Order’ in MA Baderin and M Ssenyonjo (eds), International Human Rights Law. Six Decades after the UDHR and Beyond (Farnham, UK, and Burlington, US: Ashgate, 2010) 137, at 138; S Gorski, ‘Individuals in International Law’ in (2012) V MPEPIL 147, at 149.

18  It is true, though, that the commentary on Article 16 of the ILC’s Draft Articles on Diplomatic Protection, YbILC 2006 Vol II Part Two, 51, para 4, explains that a state exercising diplomatic protection endeavours to protect rights belonging to individuals.

19  596 UNTS 261.

20  (2001) ICJ Reports 466, at 494, para 77; 497, para 89; 515(3). The same assessment was made regarding Article 36(2) of the Consular Convention, (2001) ICJ Reports 466, at 515(4).

21  (2004) ICJ Reports 12, at 71(5).

22  See separate opinion Sepúlveda, (2004) ICJ Reports 99, at 104.

23  See Cornejo v County of San Diego (9th Cir Sept 24, 2007) (2008) 102 AJIL 159.

24  See, in particular, Article 78(4) Geneva Convention IV (‘unrestricted’ right of application to representatives of Protective Powers).

25  However, it should not be overlooked that the CCPR, Article 27, grants minority rights only to (individual) members of such minorities.

26  CJEU, case C-279/09, DEB v Germany, 22 October 2010, paras 52–62.

27  Exemplary was the Sunday Times case, Series A No 30, 26 April 1979, concerning freedom of expression, where the main applicant was the publisher, Times Newspapers Limited.

28  HRCee, Hartikainen v Finland, case 40/1978, 9 April 1981, para 3 (NGO); J. R. T. & the W. G. Party v Canada, case 104/1981, 6 April 1983, para 8(a) (political party); A newspaper publishing company v Trinidad and Tobago, case 360/1989, 14 July 1989, para 3.2 (company).

29  HRCee, General Comment No 31 [80], the nature of the general legal obligation imposed on States Parties (UN doc CCPR/C/21/Rev 1/Add 13, 26 May 2004) para 9.

30  Civil Liberties Organisation v Nigeria, communication 101/93, 22 March 1995, para 17; Article 19 v Eritrea, communication 275/03, 30 May 2007, para 107.

31  Application of Article 17 of the EU by the CJEU, Sky Österreich, case C-283/11, 22 January 2013, paras 31–8.

32  ICJ, Barcelona Traction, Light and Power Company (1970) ICJ Reports 3. See also the case concerning Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo), (2007) ICJ Reports 592, at 606–7, paras 66–7; (2010) ICJ Reports 639, at 674 et seq.

33  See IACtHR, Cantos v Argentina, judgment C 85, 7 September 2001, paras 27–31. For a comprehensive study of such instances see PHPHMC van Kempen, ‘Human Rights and Criminal Justice Applied to Legal Persons’ (December 2010) 14.3 Electronic Journal of Comparative Law 1.

34  See ch 8 V.

35  Guidance is provided by the ILC Articles on Responsibility of States for internationally wrongful acts, taken note of by UNGA Res 56/83, 12 December 2001, Article 4.

36  Stimulating discussion by A Cullen and S Wheatley, ‘The Human Rights of Individuals in De Facto Regimes under the European Convention on Human Rights’ (2013) 13 HRLR 691.

37  UNSC resolutions 2127 (2013), Central African Republic, preamb para 4, op para 17; 2132 (2013), South Sudan, preamb para 5; 2136 (2014), Democratic Republic of the Congo, preamb para 11, op para 6. For an overview of the earlier practice see C Tomuschat, ‘The Applicability of Human Rights Law to Insurgent Movements’ in H Fischer et al (eds), Crisis Management and Humanitarian Protection. Festschrift für Dieter Fleck (Berlin: Berliner Wissenschafts-Verlag, 2004) 573.

38  However, international organizations exercise governmental power vis-à-vis their staff. For that reason, special administrative tribunals for staff disputes have been widely established.

39  ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion (1980) ICJ Reports 73, at 89, para 37.

40  CJEU, case C-286/90, Poulsen and Diva Navigation [1992] ECR I-6019, paras 9 and 10; case C-162/96, Racke [1998] ECR I-3655, paras 45-6; case C-366/10, Air Transport Association of America and Others, 21 December 2011, para 101.

41  The CFI rightly held in Kadi, case T-315/01, [2005] ECR II-3659, para 231, that international rules of jus cogens are binding not only on states, but also on international organizations.

42  See T Ahmed and I de Jesús Butler, ‘The European Union and Human Rights: An International Law Perspective’ (2006) 17 EJIL 771, at 788–92; C Tomuschat, ‘Die Europäische Union und ihre völkerrechtliche Bindung’ (2007) 34 EuGRZ 1.

43  See above ch 3 IX.

44  For a comprehensive review of the interrelationship between the two parallel European legal orders, see L Scheeck, ‘The Relationship between the European Courts and Integration through Human Rights’ (2005) 65 HJIL 837.

45  Solange II, 22 October 1986, 73 Entscheidungen des Bundesverfassungsgerichts 339, at 387; English translation: Decisions of the Federal Constitutional Court (Vol 1/II, Baden-Baden: Nomos, 1992) 613. Assessment by N Lavranos, ‘Regulating Competing Jurisdictions Among International Courts and Tribunals’ (2008) 68 HJIL 575, at 606.

46  Bosphorus Hava Yollari v Ireland, app 45036/98, 30 June 2005 [GC], (2006) 45 ILM 136, paras 152–65. Criticism has been voiced by A Ciampi, ‘L’Union européenne et le respect des droits de l’homme dans la mise en oeuvre des sanctions devant la Cour européenne des droits de l’homme’ (2006) 110 RGDIP 85. For the further development of the jurisprudence of the ECHR see C Janik, ‘Die EMRK und internationale Organisationen’ (2010) 70 HJIL 127; C Tomuschat, ‘The ECtHR and the UN’ in A Follesdal et al (eds), Constituting Europe. The ECtHR in a National, European and Global Context (Cambridge: CUP, 2013) 334.

47  M Darrow and L Arbour, ‘The Pillar of Glass: Human Rights in the Development Operations of the UN’ (2009) 103 AJIL 446, at 471–2.

48  See, for instance, the famous SC Res 661 (1990), 6 August 1990, imposing an embargo on all states regarding commercial activities with Iraq.

49  For the obligations of the Security Council under human rights law see M. Bothe, ‘Human Rights Law and International Humanitarian Law as Limits for Security Council Action’ in R Kolb and G Gaggioli (eds), Research Handbook on Human Rights and Humanitarian Law (Cheltenham et al: Edward Elgar, 2013) 371; I Couzigou, ‘La lutte du Conseil de sécurité contre le terrorisme international et les droits de l’homme’ (2008) 112 RGDIP 49; B Fassbender (ed), Securing Human Rights: Achievements and Challenges of the UN Security Council (Oxford: OUP, 2011).

50  For a general overview, see A Reinisch, ‘Governance Without Accountability?’ (2001) 44 GYIL 270, at 279–86.

51  Even the UN Secretary-General acknowledged the negative effects of sanctions on vulnerable groups in the targeted countries: see Supplement to an Agenda for Peace (UN doc A/50/60-S/1995/1, 1995) para 70.

52  I de Jesús Butler, ‘Securing Human Rights in the Face of International Integration’ (2011) 60 ICLQ 125, at 143–6.

53  Strong criticism of the Security Council’s practices by HC Graf Sponeck, ‘Sanctions and Humanitarian Exemptions: A Practitioner’s Commentary’ (2002) 13 EJIL 81. For ample references to critical voices, see K Bennoune, ‘“Sovereignty vs. Suffering”? Re-examining Sovereignty and Human Rights through the Lens of Iraq’ (2002) 13 EJIL 243, at 252–4. The CESCRCee has devoted one of its general comments to this issue: General Comment No 8 (1997), ‘The Relationship Between Economic Sanctions and Respect for Economic, Social and Cultural Rights’ (UN doc E/C12/1997/8, 12 December 1997). Resolutions of the GA (Res 66/156, 19 December 2011) and the HRC (Res 15/24, 1 October 2010) under the title ‘Human rights and unilateral coercive measures’ are ambiguous in not mentioning openly the Security Council. A workshop on the issue was held in Geneva in April 2013 on the basis of HRC Res 19/32, 19 April 2012.

54  As it appears, the charge was brought for the first time by the New York-based Center for Economic and Social Rights, Unsanctioned Suffering: A Human Rights Assessment of UN Sanctions on Iraq (May 1996), <http://www.cesr.org> accessed December 2002. Later, the Center published a second report (6 August 2002), Iraq Sanctions: Humanitarian Implications and Options for the Future, and a third report immediately before the outbreak of the new war in 2003, The Human Costs of War in Iraq.

55  For a well-pondered view, see A Reinisch, ‘Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions’ (2001) 95 AJIL 851.

56  Article 54(1) AP I, Article 14 AP II. For an extensive discussion see P Conlon, ‘The Humanitarian Mitigation of UN Sanctions’ (1996) 39 GYIL 249; M Craven, ‘Humanitarianism and the Quest for Smarter Sanctions’ (2002) 13 EJIL 43; HP Gasser, ‘Collective Economic Sanctions and International Humanitarian Law’ (1996) 56 HJIL 870; ME O’Connell, ‘Debating the Law of Sanctions’ (2002) 13 EJIL 69–79 (advocating the application, by analogy, of the law on counter-measures). The prohibition on starvation is also stressed by Reinisch (above n 55) 861.

57  See, for instance, SC Resolutions 1970 (2011) and 1973 (2011) targeting the Libyan leadership, in particular the Qadhafi family.

58  F Mégret and F Hoffmann, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations’ Changing Human Rights Responsibilities’ (2003) 25 HRQ 314.

59  ICTY, Rules of Procedure and Evidence, Rule 77(A).

60  ICTY, Rules of Procedure and Evidence, Rule 46(A).

61  L Caflisch, ‘The Rome Statute and the ECHR’ (2002) 23 HRLJ 1.

62  Caflisch (above n 61) 3.

63  Caflisch (above n 61) 8.

64  Of 10 June 1999.

65  Resolution 1244 (1999) was not meant to define the definitive political status of Kosovo. It could not purport to hinder the Kosovars from proclaiming independence. Whether an ethnic group within a state has a right of secession is an issue of general international law. In its advisory opinion of 22 July 2010, (2010) ICJ Reports 403, the ICJ specified furthermore that the proclamation of independence did not violate SC Res 1244 (1999).

66  As of 12 February 2014, 107 states, significantly more than half of the UN membership, had recognized Kosovo’s independence.

67  For details, see: JA Frowein, ‘Die Notstandsverwaltung von Gebieten durch die Vereinten Nationen’ in Völkerrecht und deutsches Recht: Festschrift für Walter Rudolf (Munich: Beck, 2001) 43; TH Irmscher, ‘The Legal Framework for the Activities of the United Nations Interim Administration Mission in Kosovo: The Charter, Human Rights, and the Law of Occupation’ (2001) 44 GYIL 353; C Stahn, The Law and Practice of International Territorial Administration. Versailles to Iraq and Beyond (Cambridge: CUP, 2008); R Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford: OUP, 2008); book review by A Orford (2010) 59 ICLQ 227–49.

68  Opinion 280/2004, 11 October 2004, para 154. See generally G Nolte, ‘Human Rights Protection against International Institutions in Kosovo’ in Common Values in International Law—Essays in Honour of Christian Tomuschat (Kehl: NP Engel, 2006) 245.

69  In EU law, its basis is Joint Action 2008/124/CFSP, 4 February 2008, EU OJ L 42/92. No provision has been made for remedies against the EULEX mission itself. Comment by E de Wet, ‘The Governance of Kosovo: Security Council Resolution 1244 and the Establishment and Functioning of EULEX’ (2009) 103 AJIL 83.

70  See <http://www.hrrp.eu/briefing.php>. For further details see R Muharremi, ‘The European Union Rule of Law Mission in Kosovo (EULEX) from the Perspective of Kosovo Constitutional Law’ (2010) 70 HJIL 357; M Spernbauer, ‘EULEX Kosovo: The Difficult Deployment and Challenging Implementation of the Most Comprehensive Civilian EU Operation to Date’ (2010) 11 German Law Journal 769.

71  ECtHR, Berić and Others v Bosnia and Herzegovina, app 36537/04 and others, 16 October 2007.

72  MJ Matheson, ‘United Nations Governance of Postconflict Societies’ (2001) 95 AJIL 76, at 85, goes much too far in defining the powers of the United Nations as a ‘new’ trustee.

73  See ch 6 fn 22.

74  Several sub-committees with different specializations were established over the years.

75  Consolidation of the resolutions targeting Al-Qaeda and the Taliban in SC Res 2083 (2012).

76  Contrary to I Couzigou, ‘La lutte du Conseil de sécurité contre le terrorisme international et les droits de l’homme’ (2008) 112 RGDIP 49, at 62, such sanctions do not qualify as penalties under Article 14(1) CCPR.

77  Cases T-306/01 and T-315/01, Yusuf and Kadi, 21 September 2005 [2005] ECR II-3649. Comments by J Almquist, ‘A Human Rights Critique of European Judicial Review: Counter-Terrorism Sanctions’ (2008) 57 ICLQ 303; V Bore Eveno, ‘Le contrôle juridictionnel des résolutions du Conseil de sécurité: vers un constitutionnalisme international?’ (2006) 110 RGDIP 827 (sceptical); A Hinarejos, ‘Recent Human Rights Developments in the EU Courts’ (2007) 7 HRLR 793, at 802 et seq; A Reinisch, (2006) 45 ILM 77; C Tomuschat, ‘The Kadi Case: What Relationship is there between the Universal Legal Order under the Auspices of the United Nations and the EU Legal Order?’ (2009) 28 Yearbook of European Law 654.

78  This view is also defended by A Orakhelashvili, ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions’ (2005) 16 EJIL 59 (with quite a number of exaggerated conclusions, however).

79  See AJ Kirschner, ‘Security Council Resolution 1904 (2009): A Significant Step in the Evolution of the Al-Qaida and Taliban Sanctions Regime?’ (2010) 70 HJIL 585; J Kokott and C Sobotta, ‘The Kadi Case—Constitutional Core Values and International Law—Finding the Balance?’ (2012) 23 EJIL 1015, at 1020.

80  Established by SC Res 1904 (2009); its procedures are regulated in Annex II to SC Res 2083 (2012).

81  The second judgment of the CJEU in Kadi, cases C-584/10 P and others, 18 July 2013, has refrained from providing definitive answers although specifying in detail the requirements of a fair proceeding.

82  Judgment of 14 November 2007, referred to in the judgment of the ECtHR on the case (below n 83) §§ 41–52.

83  ECtHR, Nada, app 10593/08, 12 September 2012, §§ 181–99.

84  For a comprehensive discussion see G Marceau, ‘WTO Dispute Settlement and Human Rights’ (2002) 13 EJIL 753.

85  Advocating extensive recourse to the framework of general international law J Pauwelyn, ‘Human Rights in WTO Dispute Settlement’, in T Cottier et al (eds), Human Rights and International Trade (Oxford: OUP, 2005) 205; for a more cautious approach P Hilpold, ‘WTO Law and Human Rights: Bringing Together Two Autopoietic Orders’ (2011) 10 Chinese JIL 323. For a pragmatic balance sheet see SA Aaronson, ‘Seeping in Slowly: How Human Rights Concerns are Penetrating the WTO’ (2007) 6 World Trade Review 413.

86  See R Howse and RG Teitel, The Covenant on Economic, Social and Cultural Rights and the World Trade Organization, Dialogue on Globalization, Occasional Paper No 30 (Geneva: Friedrich Ebert Stiftung, April 2007) 14–19.

87  Case DS 135, Report of Appellate Board, 12 March 2001, (2001) 40 ILM 1193, para 172 with comment by A Negi, ‘The WTO Asbestos Case’ (2003) 43 IJIL 93. See more generally M Hussain, ‘WTO and the Right to Health: An Overview’ (2003) 43 IJIL 279, and FM Abbott, ‘The WTO Medicines Decision: World Pharmaceutical Trade and the Protection of Public Health’ (2005) 99 AJIL 317, at 357.

88  See K Mechlem, ‘Harmonizing Trade in Agriculture and Human Rights: Options for the Integration of the Right to Food into the Agreement on Agriculture’ (2006) 10 Max Planck UNYB 127; B Konstantinov, ‘Invoking the Right to Food in the WTO Dispute Settlement Process: The Relevance of the Right to Food to the Law of the WTO’ in O de Schutter and KY Cordes (eds), Accounting for Hunger. The Right to Food in the Era of Globalisation (Oxford and Portland, US: Hart, 2011) 211.

89  See C Tomuschat, ‘The Responsibility of Other Entities: Private Individuals’ in The Law of International Responsibility (above n 5) 317.

90  Analysis of the drafting history by JH Knox, ‘Horizontal Human Rights Law’ (2008) 102 AJIL 1, at 4–10.

91  In contradistinction to the earlier American Declaration of the Rights and Duties of Man, 2 May 1948, <http://www.cidh.oas.org/Basicos/English/Basic2.american%20Declaration.htm>.

92  Against A Clapham, ‘The Role of the Individual in International Law’ (2010) 21 EJIL 25, at 30.

93  ESCRCee, General Comment No 21 (UN doc E/C.12/GC/21, 21 December 2009) para 73.

94  ‘. . . the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.’

95  See, in particular, Directive 2000/43/EC, 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180/22.

96  Reprinted in I von Münch (ed), Dokumente des geteilten Deutschland (Stuttgart: Kröner, 1968) 45.

97  Judgment of 1 October 1946, <http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-I.pdf>, 171, at 218–23.

98  The leading protagonist is SR Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 Yale LJ 443, at 496–524.

99  Knox (above n 90) 1 opines that ‘serious damage to human rights law’ would have to be expected by such transposition of human rights norms to private relationships.

100  See above ch 3 V.

101  This may obviously raise some delicate questions of interference in the sovereign matters of the host state.

102  See, eg, I Halpern, ‘Tracing the Contours of Transnational Corporations’ Human Rights Obligations in the 21st Century’ (2008) 14 Buffalo Human Rights Law Review 129, at 147 et seq.

103  See R McCorquodale, ‘International Human Rights Law and Transnational Corporations: Responsibilities and Cooperation’, in HP Hestermeyer et al (eds), I Coexistence, Cooperation and Solidarity. Liber Amicorum Rüdiger Wolfrum (Leiden and Boston: Martinus Nijhoff, 2012) 453; MT Kamminga and S Zia-Zarifi, Liability of Multinational Corporations under International Law (The Hague: Kluwer, 2000); JJ Paust, ‘Human Rights Responsibilities of Private Corporations’ (2002) 35 Vanderbilt Journal of Transnational Law 801; S Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 Yale Law Journal 443; O de Schutter (ed), Transnational Corporations and Human Rights (Oxford: Hart, 2006); RG Steinhardt, ‘Corporate Responsibility and the International Law of Human Rights: The New Lex Mercatoria’ in P Alston (ed), Non-State Actors and Human Rights (Oxford: OUP, 2005) 177; B Stephens, ‘Expanding Remedies for Human Rights Abuses: Civil Litigation in Domestic Courts’ (1997) 40 GYIL 117; B Stephens, ‘Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations’ (2002) 27 Yale Journal of International Law 1; M Weschka, ‘Human Rights and Multinational Enterprises: How Can Multinational Enterprises Be Held Responsible for Human Rights Violations Committed Abroad?’ (2006) 66 HJIL 625.

104  See the judgment in Lüth, 15 January 1958, 7 Entscheidungen des Bundesverfassungsgerichts 198, at 205; English translation in 2/I Decisions of the Federal Constitutional Court (Baden-Baden: Nomos, 1998) 1, at 7.

106  Only 46 states have accepted the guidelines (February 2014).

108  For official information, see <http://www.unglobalcompact.org/AboutTheGC/index.html>.

109  Principle 1: Businesses should support and respect the protection of internationally proclaimed human rights. Principle 2: They should make sure that they are not complicit in human rights abuses. Principle 3: Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining. Principle 4: Elimination of all forms of forced and compulsory labour. Principle 5: Effective abolition of child labour. Principle 6: Elimination of discrimination in respect of employment and occupation.

110  Res 2003/16 (UN doc E/CN.4/Sub2/2003/12/Rev 2). Comment by the intellectual authors, D Weissbrodt and M Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (2003) 97 AJIL 901.

111  UN doc A/HRC/4/74, 5 February 2007.

112  UN doc A/HRC/17/31, 21 March 2011. See also his scholarly exposition: JG Ruggie, Just Business: Multinational Corporations and Human Rights (New York and London: WW Norton & Co, 2013).

113  HRC, Res 17/4, 16 June 2011.

114  Critical comparison between the Sub-Commission’s ‘norms’ and Ruggie’s proposals by J Harrison, ‘Human Rights and Transnational Corporations: Establishing Meaningful International Obligations’ in J Faundez and C Tan (eds), Globalization and Developing Countries (Cheltenham, UK, and Northampton, MA, US: Edward Elgar, 2010) 205. A balance sheet is drawn up by MK Addo, ‘The Reality of the UN Guiding Principles on Business and Human Rights’ (2014) 14 HRLR 133.

115  Negative assessment by J von Bernstorff, ‘Extraterritoriale menschenrechtliche Staatenpflichten und Corporate Social Responsibility’ (2011) 49 AVR 34, at 56.