This analysis starts from the assumption, accepted by most scholars, that International Organisations (IOs) are bearers of at least some human rights (HRs) obligations, namely those stemming from jus cogens and, to some extent, international customary law.[1] It addresses the question of whether IOs also owe HRs obligations to their civilian personnel regardless of where such personnel operate. I dealt with this question in a 2018 book chapter that formed part of a collective research project aimed at clarifying the legal contours of IOs’ ‘duty of care’ towards their personnel sent on missions where their life, safety and property are exposed to risks. I tackled the question by reference to the existing jurisprudence on states’ extraterritorial HRs obligations (ETOs), coming to conclusions that might bear relevance also to the business and HRs debate.

The existing jurisprudence on both the ‘spatial’ and the ‘personal’ models of jurisdiction (as per the terminology used by Milanovic) indicates that what triggers a state’s HRs jurisdiction is the existence of a relationship of de facto power between the state and the individual (see Augenstein and Kinley), a relationship that might take the shape of effective territorial control or of other forms of control or authority exercised over the individual. In the case of IOs, while there are rare instances in which the personnel finds itself in a portion of territory over which the IO exercises effective control, the most likely scenario is that of civilian personnel sent to operate, on a variety of short-, medium- and long-term assignments, in a state territory that the IO does not control. In those cases, what brings the civilian personnel within the employer IO’s HRs jurisdiction, assuming that the former is not, under normal circumstances, in the ‘custody’ of the latter?

In the case of Jaloud – an Iraqi national shot dead in Iraq while passing through a checkpoint operated under the command of a Dutch army officer – the Court found that the authority exercised by the state, within the boundaries of its lawful competence, over the individual passing through the checkpoint was sufficient to establish Dutch jurisdiction. In Pad et al, the EctHR found that establishing the exact location of the victims (either in Iran or Turkey) was not necessary, as the individuals had been brought within Turkish jurisdiction by the mere fact, admitted by Turkey, that Turkish security forces had fired from helicopters and caused their killing. In Kovaĉić et al, the ECtHR recognised that Slovenian responsibility under the Convention could be engaged by Slovenian banking legislation affecting the rights of the applicants in Croatia. These cases (see also Isaak) show that HRs jurisdiction can be detached from the exercise of effective control or authority.

King (2009) explains that the factual power relationship triggering jurisdiction can arise either as a result of a state’s legal competence, under public international law (PIL), to act extraterritorially (as in Al Skeini et al or Jaloud), or from an unlawful extraterritorial act perpetrated by its agents and affecting HRs abroad (as in Isaak and Pad). When an IO enters into an employment relationship with an individual (through a variety of contractual forms), it arguably acquires a legal competence to regulate, influence and sanction, to some extent, that personnel and their conduct, wherever the personnel carry out their tasks. Such competence can be exercised, for instance, by defining the personnel’s Terms of Reference and assigned location, by imposing on them a contractually binding code of conduct to be observed in the field (e.g., curfew, working hours, security rules, etc.), by organizing that personnel’s repatriation from a dangerous area, and even by exercising functional protection on their behalf. This lawful competence has a transnational scope that finds its upper limit in PIL, and creates a factual power relationship bringing the civilian personnel within the HRs jurisdiction of the IO for the relevant aspects. A parallel can be drawn with the nationality status of a state’s citizen, who falls within the state’s HRs jurisdiction, in certain respects,[2] also when residing abroad and outside of its physical control, insofar as the state has ‘the lawful and factual ability to affect’ that citizen (King 2009, 537). The sovereign nature of a state’s acts (e.g. the issuing of passports) as opposed to the private law nature of a contract concluded between an individual and the employer is not determinant for the purpose of HRs jurisdiction. Indeed, what matters is not the formal nature of the act creating the bond, but the de facto power relationship it engenders. This approach to HRs jurisdiction increasingly finds validation in the work of the UN treaty bodies concerning corporate activities causing harm in foreign countries. CESCR has affirmed in General Comment 24 that ‘[e]xtraterritorial obligations arise when a State party may influence situations located outside its territory, consistent with the limits imposed by international law, by controlling the activities of corporations domiciled in its territory and/or under its jurisdiction’ (para 28). Other treaty bodies (CCPR, CRC and others) have taken a similar stance. Again, determinant is the state’s lawful and factual ability to affect individuals abroad – in this case, by influencing the conduct of corporations.

If we accept that the civilian personnel is brought within the employer IO’s HRs jurisdiction by the legal competence acquired by the latter through the creation of the contractual relationship, two corollaries follow:

(i) the existence of IOs’ HRs obligations towards their personnel does not depend on the form of contract — consequently, IOs cannot escape their HRs obligations by increasingly relying on non-staff members (such as consultants), although the form of contract could to some extent influence the content of the obligations (see next point);

(ii) the extent of the IO’s legal competence directly affects the breadth and content of its positive HRs obligations towards its civilian personnel, also determining the upper limit of such obligations. According to this ‘gradual approach to jurisdiction’ (Lawson 2004, 120; Al Skeini, para 137), the IO’s due diligence obligations vary according to factors such as the SOMA and other agreements concluded with the host state, as well as to the factual circumstances of the case. To give an example concerning the rights to health and to life, when it is factually impossible for the personnel (e.g., due to an ongoing armed conflict, public health crisis, or failed state situation) to access the local healthcare system or safe water sources in the host country, the sending IO has a duty to directly provide those services to the personnel it has deployed. In most situations, arranging pre-deployment trainings, equipment and insurance for its own personnel will be part of the IO’s ‘duty of care’ under human rights law (IHRL). Interestingly, the exercise of functional protection, which is claimed as a right under PIL by IOs, might arguably constitute a duty under IHRL, at least in those circumstances in which, lacking its exercise, the personnel would be deprived of access to an effective remedy. In fact, the IO’s legal competence under PIL and factual capacity to exercise functional protection towards its civilian personnel create a de facto power relationship triggering the IO’s HRs jurisdiction in the relevant respect.

 

[1] Cedric Ryngaert et al, Judicial Decisions on the Law of International Organizations (Oxford: OUP,  2016) 233-234.

[2] EComHR, X. v Federal Republic of Germany, 25 September 1965, 17 HRCD 42, para 47.

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