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to the Netherlands.8 However, criticisms levelled against the composition and the proceedings of the Administrative Tribunal of the International Labour Organisation (ILOAT), endowed with competence to adjudicate labour disputes within a number of the UN specialised agencies led, at least in one case, to a proceeding before the Italian courts. The Food and Agriculture Organization of the UN (FAO), located in Rome, is one of the organisations that have entrusted the ILOAT with jurisdiction in respect of staff disputes. In FAO v. Colagrossi, the Corte di cassazione rejected those objections, ruling that the immunity granted to the FAO under the Convention on the Privileges and Immunities of the Specialized Agencies9 could not be overturned or circumvented by way of allegations that major deficiencies marred the mechanism of judicial protection provided by the ILOAT.10 Some applications concerning other international organisations reached the ECtHR but were all dismissed, since the system of legal protection met, according to the Strasbourg judges, all the requirements of a fair trial as required by article 6 ECHR.11

2.2 Disputes arising from peacekeeping activities

It should not have come as a surprise to observers that outside New York and Geneva, too, the UN could incur international responsibility by infringing basic rules of conduct. Peacekeeping activities, apart from their beneficial effects for the assisted groups of people, have also quite understandably caused injuries in situations where chaotic circumstances in the areas of operation obtained. Thus, the UN was confronted with numerous reparation claims arising from the operation in the Congo

8ECtHR, Galić and Blagojević v. The Netherlands (Appl. Nos. 22617 and 49032/07), Decision (Third Section), 9 June 2009, not reported, para. 46.

9Convention on the Privileges and Immunities of the Specialized Agencies, 33 UNTS 261, 21 November 1947, entered into force 2 December 1948.

10FAO v. Colagrossi, Judgment, 18 May 1992, Rivista di diritto internazionale 75 (1992) 407, at 411. See also ECtHR, Boivin v. 34 State Members of the Council of Europe (Appl. No. 73250/01), Decision (Fifth Section), 9 September 2008, Reports 2008.

11See with regard to the European Space Agency, located in Darmstadt (Germany), ECtHR, White and Kennedy v. Germany (Appl. No. 26083/94), Judgment (Grand Chamber), 18 February 1999, Reports 1999-I, 393, paras. 40, 69; ECtHR, Beer and Regan v. Germany (Appl. No. 28934/95), Judgment (Grand Chamber), 18 February 1999, not reported, paras. 30, 59. Another decision, relating to NATO, which dismissed an application as inadmissible; ECtHR, AL v. Italy (Appl. No. 41387/98), Decision (Second Section), 11 May 2000, not reported.

(ONUC) from July 1960 to June 1964. With the growth of peacekeeping activities, the characteristics of such claims have increased both in quantity as well as in complexity.

2.3 Disputes arising from targeted sanctions

Another field of grievances has been opened up by the practice of targeted sanctions initiated by the Security Council in its quest for effective measures that hit responsible political leaders but not the entire population of a country that has come within the scope of application of Chapter VII of the Charter.12 These sanctions are of two types. On the one hand, travel bans may be imposed on members of the political elite of a country that has committed grave breaches of the principle of non-use of force or has engaged in massive violations of human rights. On the other hand, the Security Council has developed a strategy of freezing of assets, in particular of persons known or supposed to be involved in terrorism or sponsoring terrorism. Generally, a special committee of the Security Council (‘Sanctions Committee’) produces ‘blacklists’ containing the names of the persons subject to the relevant measures of constraint. In implementing these types of sanctions, the UN is compelled to rely on the cooperation of its member states.

3. UN action susceptible of causing harm

In the following, it will be attempted to focus in greater detail on the possible points of intersection between the ECHR and the UN. Some hints were already given in the preceding sections as to circumstances where an individual might seek the protection of the ECtHR against actions undertaken or initiated by the UN.

3.1Human rights protection against the UN: general considerations

Since judicial protection is one of the key elements of the rule of law, a concept embraced by the UN in many of its principled statements,13 one

12See I. Cameron, ‘Protecting Legal Rights. On the (in)Security of Targeted Sanctions’, in P. Wallensteen and C. Staibano (eds.), International Sanctions. Between Words and Wars in the Global System (London and New York: Routledge, 2005) 181–206 (hereinafter Cameron, ‘Protecting Legal Rights’).

13See, in particular, UN GA Resolution 60/1, World Summit Outcome, 16 September 2005, para. 134. See also the UN’s special website: www.un.org/en/ruleoflaw/index.shtml.

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might assume that in response to the expanding field of activity of the UN institutions, in particular the Security Council, the world organisation would have correspondingly developed appropriate mechanisms for the protection of potential victims of such activities. However, this has not happened. The observer must note a complete standstill. Thus, the question arises as to recourse to any subsidiary mechanisms capable of providing legal remedies. Among all the institutions entrusted with granting such remedies for the protection of human rights, the ECtHR is certainly the most effective one. However, the fact remains that the ECtHR is only a regional judicial body with a limited mandate both ratione materiae and ratione personae.

The ECHR cannot directly control the activities of the UN.14 It is a regional instrument that does not aim to govern the world at large. Its parties are exclusively state members of the Council of Europe; and the opening which Protocol No. 14 to the ECHR15 has introduced for the European Union, hitherto not implemented,16 remains confined to the European Union and does not cover any other international organisations. Furthermore, it would be preposterous to seek to generally subject the world organisation to the requirements of the ECHR. Accordingly, the ECHR will never become an instrument that may be directly invoked against the UN in matters of universal scope. Seen from a structural viewpoint, it is clear from the very outset that the ECHR and its executive arm, the ECtHR, can only come into play when a state party to the ECHR acts for the implementation of some UN measure, which will then open up the possibility of implicitly reviewing the lawfulness of that measure in light of the human rights guarantees of the ECHR. Obviously, such remedies, which operate ‘through the back door’, will generally lack the requisite effectiveness that would be inherent in remedies permitting directly to challenge acts of the Security Council or the General Assembly.

Additionally, it should be specified that communications submitted to the Human Rights Committee, the body entrusted with supervising

14See ECtHR, Stephens v. Cyprus, Turkey and the UN (Appl. No. 45267/06), Decision (First Section), 11 December 2008, not reported; ECtHR, Blagojević v. The Netherlands (Appl. No. 49032/07), Decision (Third Section), 9 June 2009, not reported, para. 36.

15CETS 194, 13 May 2004, entered into force 1 June 2010, art. 17, included in the ECHR as art. 59(2).

16It may indeed appear doubtful whether the introduction of a complaint procedure against judgments of the ECJ would be a wise decision, given the workload of the ECtHR. Proceedings might be extended ad infinitum.

compliance with the International Covenant on Civil and Political Rights (ICCPR), are confined to allegations of breaches of the ICCPR by states. The blueprint of the ICCPR and of the (First) Optional Protocol supplementing it is the same as that of the ECHR. Only states may become parties, and communications can only be directed against states parties. While, in Europe, the vacuum left by the ECHR regarding governmental acts of supranational institutions has always been filled by the specific remedies made available within the framework of the European integration treaties, this has not happened at UN level. As already pointed out, the new window of activity of the Security Council consisting of targeting individuals, is of recent date, and this aspect of its activity does not belong to its ordinary functions, but still has features of exceptionality. Therefore, to establish a specific judicial body to review such targeting measures may originally have appeared as a marginal concern which does not satisfy any appreciable public interest. Another reason for this obvious lack of enthusiasm is the reluctance of the Security Council (in particular, its permanent members), to be subjected to a judicial control mechanism. Understandably, the members of the Security Council are predominantly of the view that their acts and decisions are generally based on the exercise of broad discretionary powers that should not be submitted to control of a judicial type.17 Obviously, different philosophies clash at this point. On the one hand, the general political context at world level can never be rejected as irrelevant, and it may justify measures which reach beyond common usages. On the other hand, the fundamental rights and freedoms of individuals should never be lightly sacrificed on the altar of the common interest. In the absence of comprehensive institutional answers, compromise solutions at a balanced midpoint must be found.18

One of the paths to be embarked upon in order to facilitate judicial control could be to enquire whether the contributory acts of national

17See B. Fassbender, ‘Targeted Sanctions Imposed by the UN Security Council and Due Process Rights. A Study Commissioned by the UN Office of Legal Affairs and Follow-up Action by the United Nations’, International Organizations Law Review 3 (2006) 437–85, at 438; Cameron, ‘Protecting Legal Rights’, at 199.

18See G. Nolte, ‘Human Rights Protection against International Institutions in Kosovo: The Proposals of the Venice Commission of the Council of Europe and their Implementation’, in P.M. Dupuy et al. (eds.), Common Values in International Law. Essays in Honour of Christian Tomuschat (Kehl: N.P. Engel, 2006) 245–58; C. Stahn, The Law and Practice of International Territorial Administration (Cambridge University Press, 2008) 602–16.

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delegates in the organs of the UN are bound by the requirements established by their national constitutions as well as by the human rights instruments applicable in their home states. Since the General Assembly is generally prevented from adopting acts producing a binding effect, it is mainly the Security Council which might be scrutinised along that line. If, for example, a proposed embargo decision risks injuring the weakest part of the targeted country – women, children and people suffering from severe diseases – then can at least any one of the permanent members be held to account, given the fact that they could have blocked the controversial resolution by simply saying: no? A similar question came up before the German Constitutional Court a few years ago with regard to the approval of a Directive of the European Community on coordination of the television activities of the member states of the Community.19 The Land of Bavaria argued that the Federal Government should have taken into account the interests of the German Länder in giving its approval to the Community instrument, since, according to the internal distribution of powers, the Länder hold authority over the broadcasting and television sector. For the Constitutional Court, there was no doubt that acting in Brussels was also subject to the provisions of the Basic Law and could thus be challenged if a Land opined that the Federation had infringed the dividing line separating federal from Länder powers, or had failed to behave according to the standards of ‘federal loyalty’ (Bundestreue).20

It is not easy to say whether the same logic should apply to the Security Council of the UN. The Security Council is an organ of the international community, or, in other words, of mankind at large. If one assumed that every delegate in the General Assembly and in the Security Council, when acting in that capacity, was subject to its national constitution, and additionally to any international treaty binding on his or her country, the decision-making process at the UN would find itself greatly hampered. One may argue that to accept such an extensive arsenal of checks contradicts not only article 27 of the Vienna Convention on the Law of Treaties (VCLT), according to

19Council Directive 89/552/EEC, 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities, Official Journal L298/23, 17 October 1989.

20Judgment, 22 March 1995, Entscheidungen des Bundesverfassungsgerichts (BVerfGE) 92, 203, at 228. See also the decision of the Court of 7 September 2011, 2 BvR 987/10, www. bundesverfassungsgericht.de/entscheidungen/rs20110907_2bvr098710.html, para. 114, where it rejected constitutional complaints against the participation of Germany in the establishment of the European Financial Stability Facility (EFSF).

which no state may invoke the provisions of its domestic law as justification for its failure to perform a treaty, but also article 103 of the Charter, the provision claiming precedence of the Charter over any other treaty commitments. In fact, in Behrami and Saramati, the ECtHR held (para. 149):

Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN’s key mission in this field including, as argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. This reasoning equally applies to voluntary acts of the respondent States such as the vote of a permanent member of the UNSC in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts may not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the UN of its imperative peace and security aim.21

In other words, the ECtHR shows great respect for the Security Council.22 Without explicitly mentioning article 103 of the Charter, the quoted passage is visibly influenced by that provision.23 It is not easy to reject the reasoning of the Strasbourg judges.24 The UN Charter stands above the great mass of other multilateral treaties. Without characterising it as a

21ECtHR, Behrami and Behrami v. France and Saramati v. France, Germany and Norway

(Appl. Nos. 71412 and 78166/01), Judgment (Grand Chamber), 2 May 2007, not reported (Behrami and Saramati).

22T. Tridimas and J.A. Gutierrez-Fons, ‘EU Law, International Law, and Economic Sanctions against Terrorism: The Judiciary in Distress?’, Fordham International Law Journal 32 (2008–9) 660–730, at 686 (hereinafter Tridimas and Gutierrez-Fons, ‘EU Law, International Law, and Economic Sanctions against Terrorism’), call it a ‘deferential judgment’.

23In a series of subsequent decisions, the ECtHR has maintained its line of reasoning: Kasumaj v. Greece (Appl. No. 6974/05), Decision (First Section), 5 July 2007, not

reported; Gajic v. Germany (Appl. No. 31446/02), Decision (Fifth Section), 28 August 2007, not reported; Berić and Others v. Bosnia and Herzegovina (Appl. No. 36357/04), Decision (Fourth Section), 16 October 2007, not reported, paras. 27–8.

24For a different view, see Cameron, ‘Protecting Legal Rights’, at 187.

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‘world constitution’,25 one must acknowledge that the Charter contains the great structural principles of today’s world order, concretised by General Assembly Resolution 2625 (XXV),26 in particular, as rightly emphasised by the ECtHR, the ‘imperative peace and security aim’.27 This core element of the contemporary international legal order should not be lightly ignored.

3.2 Peacekeeping operations and the ECHR

The main areas of intersection between the UN and the ECtHR are constituted by military activities of the world organisation to the extent that troops provided by states that are bound by the ECHR are involved. Under such circumstances, a person having sustained injury through a UN operation may envisage complaining about an infringement of his/her rights and eventually bringing the ensuing dispute to the ECtHR. To date, only a few cases have found their way to Strasbourg, but it must be expected that in the future the number of such cases will grow not only in quantity, but also in complexity.

3.2.1 UN peacekeeping – general principles

It is well known that the original concept of UN military power, reflected in article 43 of the Charter, has remained abortive. Member states were to put at the disposal of the UN troop contingents designed to assist the UN in its task of ensuring international peace and security. This concept failed, in particular, because of the mistrust of the great powers vis-à-vis one another. It was feared that a UN force might be employed abusively in the power struggle between the ‘West’, on the one hand, and the socialist states, on the other.

At the present juncture, reality is dominated by the structural elements that have arisen as some kind of Ersatz for combat forces under article 43. On the one hand, at the height of the Cold War, the concept of ‘peacekeeping’ was invented, a device originally having a truly innocuous

25The most prominent protagonist of this approach is B. Fassbender, UN Security Council Reform and the Right of Veto (The Hague: Kluwer Law International, 1998), at 89.

26UN GA, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Resolution 2625, 24 October 1970.

27ECtHR, Behrami and Saramati.

character.28 Peacekeeping troops were sent, when somewhere after armed hostilities a truce had been reached, to pacify the situation in border areas that were still impacted by the preceding conflict. UNEF I, ONUC, UNIFIL and UNDOF29 were among the first examples of such military forces under the command of the UN that initially were always deployed with the consent of the relevant territorial state(s). Peacekeepers had no combat or enforcement mandate. Just by their presence, they were expected to separate the warring parties and to consolidate an unstable armistice until a definitive solution could be found in political and legal terms – and not only on the basis of the facts as they had arisen as a result of armed conflict.

In later decades, in particular due to the wars on the soil of the former Yugoslavia, peacekeeping operations attained a higher degree of variety. Experience taught many bitter lessons. Peacekeepers who stood idly by when human beings were murdered, tortured, and driven from their homes, because they had no mandate to intervene, as happened many times in Bosnia-Herzegovina within the framework of UNPROFOR, were likely to discredit the instrument of peacekeeping as a whole. Accordingly, the concept of ‘robust’ peacekeeping emerged, peacekeeping that was not strictly confined to observing and trying to settle disputes by peaceful methods, but comprising also resort to the use of military methods according to the needs of a victimised population. Today, the concept of peacekeeping has attained an enormous variety of configurations.30 Generally, however, the basic rule remains that peacekeepers have no mandate to proceed against an aggressor.

3.2.2 Peacekeepers as UN organs

Peacekeeping operations are UN operations. States put certain contingents of their military force at the disposal of the UN, and those troops operate exclusively under the command of the UN. Supreme political authority to authorise a peacekeeping operation is vested in the Security

28For a comprehensive account, see M. Bothe, ‘Peace-Keeping’, in B. Simma (ed.), The Charter of the United Nations: A Commentary, 2nd edn, vol. I (Oxford University Press, 2002) 648–700; M. Bothe, ‘Peacekeeping Forces’, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (Oxford University Press, 2008).

29For summary accounts, see Bothe, ‘Peace-Keeping’, at 665–7.

30For an overview of the earlier practice until 1995, see also S.R. Ratner, The New UN Peacekeeping (New York: St. Martin’s Press, 1995); R.C.R. Siekmann, National Contingents in United Nations Peace-Keeping Forces (Dordrecht: Martinus Nijhoff, 1991).

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Council.31 The Security Council delegates responsibility for the conduct of an operation to the Secretary-General who, on his part, as a rule entrusts an Under-Secretary-General with organising and managing the operation in logistical detail.32 Additionally, for each mission, a Special Representative of the Secretary-General is appointed who, as Head of Mission, holds political authority over the operation, sometimes having to take decisions under difficult circumstances when the superior authorities in New York are unable to provide good advice due to their distance from the daily occurrences.33 Eventually, on the ground, a military commander exercises operational command in military terms. Where the territory to be covered is extensive, several regional sub-commanders may be needed. As for the different national contingents, they remain subject to their national commanders to some limited extent. In effect, the command of the UN is not of a sweeping nature. As far as issues of discipline are concerned, in particular, the national commanders retain full authority.34 For that reason, peacekeepers serve in a double capacity, both as UN organs and, to a limited extent, as elements of their national armed forces.

3.2.3 Responsibility for injuries caused by peacekeeping activities

The consequences of this configuration in respect of responsibility leave no doubts. All the actions of peacekeeping troops are attributable to the UN, provided they act within the scope of the assignment imparted to them by the Security Council.35 Apart from a judgment of the British House of Lords

31Theoretically, on the basis of the Uniting for Peace Resolution of the General Assembly (Resolution 377 (V) A, 3 November 1950), also the General Assembly might establish an operation. However, the original enthusiasm of the Western group of states for the resolution has faded away long since. After UNEF I, no other operation was brought to life by the General Assembly, see C. Tomuschat, ‘Uniting for Peace’, http://untreaty.un. org/cod/avl/ha/ufp/ufp.html; D. Zaum, ‘The Security Council, the General Assembly, and War: The Uniting for Peace Resolution’, in V. Lowe et al., The United Nations Security Council and War (Oxford University Press, 2008) 154–74.

32As of April 2012, Frenchman Hervé Ladsous is the head of the Department of Peacekeeping Operations.

33Unfortunately, the lack of resolve of the Japanese Special Representative, Yasushi Akashi, contributed to some extent to the genocide committed in Srebrenica.

34See Model Agreement Between the United Nations and Member States Contributing Personnel and Equipment to United Nations Peace-Keeping Operations, UN doc. A/46/ 185, 23 May 1991, paras. 8, 25.

35Letter of the UN Legal Counsel of 3 February 2004, UN Juridical Yearbook 2004, 352–6, at 354, paras. 6, 7; M. Hirsch, The Responsibility of International Organizations Toward

in the opposite sense, where the alternative between assigning liability to the UN or to the UK that had placed British troops at the disposal of a peacekeeping operation, was not sufficiently probed into,36 this has always been recognised in practice. However, there seems to exist a slight divergence between the position of the UN, represented by the Secretary-General, which qualifies peacekeeping forces as a ‘subsidiary organ’ of the UN37 – in other words, a full UN organ – and the International Law Commission (ILC), also a UN body, but made up of independent experts, which subsumes peacekeeping contingents provided by member states to the UN under article 7 of its articles on the ‘Responsibility of international organizations’ (DARIO) approved by the ILC on first reading on 11 June 201138 on the basis of the work done by Giorgio Gaja, its special rapporteur for the topic.39 Pursuant to article 7 DARIO, organs or agents placed at the disposal of an international organisation ‘shall be considered’ under international law as an act of the organisation, provided the organisation exercises ‘effective control’ over the relevant conduct. However, as far as the actual conclusions to be drawn, the two constructions do not evince or imply any significant differences. The practice of the UN, which consists of unrestrictedly assuming liability vis-à-vis an injured third party,40 at the same time corresponds fully to draft article 8 DARIO, according to which the international organisation concerned is prevented from rejecting attribution, even if the organ or agent concerned has exceeded its authority or has contravened its instructions. On the other hand, nothing stands in the way of internally recovering the amounts paid to injured third parties if the peacekeepers concerned have acted with gross negligence or in wilful disregard of the law to be complied with by them.41

Third Parties: Some Basic Principles (Dordrecht: Martinus Nijhoff, 1995) 66–71 (hereinafter Hirsch, The Responsibility of International Organizations); ECtHR, Stephens v.

Cyprus, Turkey and the UN (Appl. No. 45267/06), Decision (First Section), 11 December 2008, not reported.

36Attorney-General v. Nissan [1969] 1 All ER 639. The House of Lords instead examined primarily the question of whether the UK or the country of deployment, Cyprus, had to bear the financial responsibility for the damage caused.

37See Letter of UN Legal Counsel of 3 February 2004.

38ILC 2011 Report, UN Doc. A/66/10, 52. For the response of the GA, see Resolution 66/98, Report of the International Law Commission on the work of its sixty-third session, 9 December 2011, para. 4.

39Commentary on Art. 7, ibid., at 85, para. 1.

40Letter of UN Legal Counsel of 3 February 2004, at 354, para. 7.

41Ibid., para. 9, referring to the Model Memorandum of Understanding between the UN and contributing states, Annex to the note of the Secretary-General on Reform of the