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2018 | Book

International Organizations and Alleged Duty of Care Breaches: A Growing Ethical, Reputational and Financial Challenge Read chapter Read first chapter

The Duty of Care of International Organizations Towards Their Civilian Personnel

Legal Obligations and Implementation Challenges

Editors: Prof. Dr. Andrea de Guttry, Prof. Micaela Frulli, Prof. Edoardo Greppi, Ph.D. Chiara Macchi

Publisher: T.M.C. Asser Press

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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About this book

This book constitutes the first comprehensive publication on the duty of care of internationalorganizations towards their civilian personnel sent on missions and assignments outsideof their normal place of activity. While the work of the civilian personnel of internationalorganizations often carries an inherent risk, the regulations, policies and practices of theemployer can help to address and mitigate that risk.
In this book, the specific content and scope of the duty of care under international law is clarifiedby conducting an unprecedented investigation into relevant jurisprudence and legal sources.Included is a critical assessment of the policies of selected international organizations while aset of guiding principles on the duty of care of international organizations is also presented.
This publication fills a gap in the existing academic literature on the topic and is aimedparticularly at academics and practitioners interested in the legal implications of the deploymentof civilian personnel abroad by international organizations. This includes scholarsand university-level students specializing in international law, international human rightslaw, the law of international organizations, labour law, EU law, international administrativelaw and the UN system, and practitioners, such as lawyers and consultants, representing oradvising international organizations or their personnel on the legal aspects of deployment.
The book is also aimed at the senior management of international organizations and at theirofficers in charge of recruitment, human resources, training and security, in that it clarifiestheir legal obligations and provides concrete examples of the policies various internationalorganizations have in place for the protection of civilian personnel. Current and prospectivecivilian personnel of international organizations should also find the book useful forclarifying their rights and duties.
Andrea de Guttry is Full Professor at the Dirpolis Institute of the Sant’Anna School ofAdvanced Studies in Pisa, Micaela Frulli is Associate Professor at the Dipartimento di ScienzeGiuridiche (DSG), University of Florence, Edoardo Greppi is Full Professor at the Dipartimentodi Giurisprudenza, University of Turin, and Chiara Macchi is Research Fellow at theDirpolis Institute of the Sant’Anna School of Advanced Studies in Pisa.

Table of Contents

Frontmatter

The Duty of Care of International Organizations: Setting the Scene

Frontmatter
Chapter 1. International Organizations and Alleged Duty of Care Breaches: A Growing Ethical, Reputational and Financial Challenge
Abstract
The interest of the international community in the duty of care of international organizations towards their employees has continually increased over the course of the last decade. As field operations become more complex, the security environment more volatile and the dangers and risks more diversified, greater attention has been paid to duty of care principles. The overall objective of this chapter is to present evidence of the growing ethical, financial and reputational challenges that international organizations face as a consequence of alleged breaches of their duty of care towards their civilian personnel. The chapter gives a quantitative and qualitative account of the rising trend of the international jurisprudence in addressing issues related to breaches of the duty of care obligation, provides a general overview of the literature devoted to the topic and a quantitative analysis of persons injured and/or fatalities. Furthermore, it addresses the reputational impact on the organization in the aftermath of an alleged breach and the financial consequences. It also explores the issues of safety, health, well-being, stress and work/life balance handled by the Office of the UN Ombudsman and Mediation Services. Specific datasets regarding the type of insurance provided by international organizations to their employees working in dangerous areas are, for the most part, not publicly available. Their circulation is therefore a calling to a higher responsibility that would allow international organizations to adopt common standards and better understand the main trends regarding the implementation of duty of care practices and guidelines.
Gaia Aurora Armenes, Abraham Jesus Arvizu III, Sami Aswad, MariaSole Fanuzzi, Fabio Frettoli, Alessia Moratto, Valentina Strippoli
Chapter 2. Comparative Analysis of International Jurisprudence and Relevant International Practice Related to the Duty of Care Obligations Incumbent on International Organizations Towards Their Mobile Workforce
Abstract
In recent years almost all international organizations (both global and regional) have increased their field activities and have requested their staff to perform various activities ranging from the mere attendance of short meetings in capital cities, to visiting remote areas for project monitoring and assessment activities, from training and capacity building activities to humanitarian relief, from delivery of cooperation projects to technical assistance. The evolving complexity of the tasks to be performed, the volatile environments in which these persons must perform their assignment and the changed international security situation which has transformed civilians very often into a privileged target for terrorist and/or criminal activities, have all contributed to a rising number of incidents involving these persons. Many cases of physical or brain injuries have been reported and the victims have often accused the sending organization of not having respected the duty of care principle. During the last few years, due to the growing number of disputes relating to assumed violations of this principle, the national and international jurisprudence has contributed to the definition of its precise contours. Facing this situation, international organizations, both at global and at regional level, are requested to rapidly implement a fully-fledged duty of care policy in order to take responsible action and to properly protect their mobile working force. This chapter examines the relevant international practice and jurisprudence with the aim of identifying the more precise contours of the duty of care incumbent on international organizations towards the mobile working force.
Andrea de Guttry
Chapter 3. The Duty of Care of International Organizations: Issues of Conduct and Responsibility Attribution
Abstract
This chapter addresses the question of how the responsibility to discharge the duty of care is allocated between an international organization, its member States and the civilian personnel deployed abroad by the international organization. First of all, it discusses the applicability of the rules on international responsibility, in particular the Draft Articles on the Responsibility of International Organizations and the Articles on the Responsibility of States for Internationally Wrongful Acts. In this regard, attention will be paid to the interplay between special regimes imposed by the international organizations and general rules. Secondly, and provided that the general rules on international responsibility have a role in apportioning the responsibility between States and international organizations, the chapter analyses the rules of attribution of conduct and of responsibility in light of the most recent international practice and jurisprudence.
Andrea Spagnolo
Chapter 4. Overlapping Responsibility: The Legal Relationship Between the International Organization and the Host State
Abstract
This chapter focuses on the duty of care from the perspective of the legal relationship that the sending international organization establishes with the hosting State. This is a privileged perspective to investigate the plurality of legal regimes in which the duty of care is implemented. Indeed, the protection of international civilian personnel is at the intersection of international law, national law of the hosting/sending State and internal law of the organization. The aim is to enlighten a fundamental component of the broader obligation that international organizations have to protect the safety of their personnel deployed in international missions. In particular, this chapter focuses on the relationship that the sending organization has to establish with the hosting State in order to fulfil its duty of care. Moving between regimes and points of view, it builds on the fundamental principle under which hosting States bear the primary responsibility to protect civil servants deployed in their territories.
Lorenzo Gasbarri
Chapter 5. The Duty of States to Ensure Respect of the Duty of Care through Their Membership in International Organizations
Abstract
This chapter stems from the consideration that States, when becoming members of international organizations, remain bearers of obligations under international human rights law. This entails that, on the one hand, both in implementing binding acts of the international organizations to which they are members (ECtHR, Bosphorus v. Ireland (GC), App. no. 45036/98, 2005, §153) and in case of failure by those international organizations to ensure respect for human rights, States are not relieved from their own obligations under international human rights law (ECtHR, Al-Dulimi and Montana Management Inc. v. Switzerland (GC), App. no. 5809/08, 2016). This applies also to the contribution of States in the elaboration of the rules of the organization (ECtHR, Gasparini c. Italie et Belgique). As this chapter argues, it means that States must use their leverage (expressed through their right to vote or their diplomatic influence) to ensure that violations do not result from the programmes, policies and rules of the organization of which they are members (Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, §19). This chapter also finds, more specifically, that they are required to act within those international organizations in a manner that fosters respect for human rights in general and, more specifically, for duty of care obligations towards civilian personnel sent on mission.
Martina Buscemi
Chapter 6. International Organizations as Employers: Examining the Duty of Care in the Light of the Different Forms of Employment Relationships
Abstract
This chapter examines the duty of care from the perspective of employment law. The aim is to identify whether and how the content of international organizations’ duty of care obligations may vary according to the different types of employment contracts. In the absence of a clear and uniform system of regulatory sources, this remains a controversial issue, for reasons that are examined at the start of this chapter. The various forms of employment relationship that international organizations enter into with mission personnel are then examined, analysing whether the duty of care varies according to the type of labour contract. From a legal point of view, the worker’s rights depend on their legal status and traditionally the protection of labour law is granted only to employees and is based on the employment contract. The analysis in this chapter shows that the classification of labour relations used by international organizations has developed separately from the provisions of national systems, introducing a categorisation based on the distinction between staff-members and non-staff members.
Vania Brino

The Implementation of the Duty of Care by Selected International Organizations: Specific Legal and Practical Challenges

Frontmatter
Chapter 7. Implementation of the Duty of Care by the United Nations
Abstract
The duty of care of the United Nations corresponds to a ‘non-waivable duty on the part of the organization to mitigate or otherwise address foreseeable risks that may harm or injure its personnel and their eligible family members’. It is crystallised in an implicit and explicit way in the obligations the organization has towards its staff that are contained in both hard and soft law instruments, policies, regulations and rules, administrative instructions, other internal acts of the organization. Its components have been further delineated through the jurisprudence of the organization’s administrative tribunals. Recent reviews conducted by the Joint Inspection Unit and the High-Level Working Group on ‘reconciling duty of care for UN personnel with the need ‘to stay and deliver’ in high-risk environments’ have upheld that, apart from selected critical areas that need further development and attention, the main issue at stake for ensuring the duty of care of the UN vis-à-vis its staff is the enforcement of compliance with, and further operationalization of, existing rules and policies in a coherent and systematic manner throughout the UN System. This chapter undertakes a survey of relevant legal sources to frame the contours and content of the duty of care of the UN as an employer. It identifies the personal and geographical scope of such obligation and focuses on its key components rationae materiae for then reflecting on challenges that need to be addressed to ensure that the health, well-being, security and lives of staff will not be subject to unnecessary risks.
Annalisa Creta
Chapter 8. Implementation of the Duty of Care by the European Union
Abstract
This chapter deals with the implementation of the duty of care within the European Union (EU). It examines the sources (both at the international and at the internal level) from which the duty of care is derived and its scope of application. Given the complex nature of the EU, a specific section is devoted to the distribution of tasks between the EU and its Member States, on the one hand, and the EU and third countries, on the other. This chapter also attempts to identify the various obligations flowing from the duty of care and gives some indications on how EU institutions act in the planning and the risk assessment phase. Moreover, it also describes the ways in which the administrative and judicial organs of the EU can intervene when a violation of the duty of care by the organization occurs. The final section presents a number of conclusions and recommendations aimed at improving the effectiveness of duty of care-related measures in the EU legal order.
Stefano Saluzzo
Chapter 9. Implementation of the Duty of Care by NATO
Abstract
The very nature of the North Atlantic Treaty Organization (NATO), namely a military alliance of a defensive character, points to the relevance that the duty of care may have for the organization, as it implies the prospect for deployment abroad and in a dangerous environment for personnel either directly hired by the organization or having some other working link with it. Civilians having a working relationship with NATO are not only those recruited to run the Headquarters or to support Council approved operations or missions but also consultants, temporary staff, staff seconded from a member State and members of the civilian component of a NATO force deployed in the field. This chapter will analyse the extent to which NATO implements its duty of care when these categories of civilians perform functions outside the Headquarters. In addition, the paper attempts to address the degree of applicability of NATO duty of care obligations to non-staff members, namely contractors and locally employed personnel.
Luisa Vierucci, Polina Korotkikh
Chapter 10. Implementation of the Duty of Care by the OSCE
Abstract
This chapter offers a comprehensive overview on the implementation of the duty of care within the OSCE. Stepping into the debate concerning the international legal personality of international organizations, the author discusses recent practice and argues that, especially in the 2014 and 2017 cases of injuries involving officials, the OSCE reacted in the international arena as an independent subject. Starting with this premise, this chapter analyses how the OSCE, as an international subject, complies with the duty of care. To this end, the internal rules defining the status of staff and the correlating mechanisms of enforcement are illustrated. Special attention is paid to Staff Regulation 2.07—which entitles OSCE officials to functional protection in the external relations of the organization—and to its implementation in the recent practice of the organization. The chapter concludes that, in addition to the development of the international standing of the OSCE, the proper realisation of the duty of care requires that the OSCE and its participating States take a further step toward recognising the legal personality of the organization and its officials within their domestic legal order.
Deborah Russo
Chapter 11. Implementation of the Duty of Care by the Council of Europe
Abstract
The aim of this chapter is to evaluate how and to what extent the Council of Europe (CoE) protects its personnel sent on mission, that is to say—as accepted in this publication—personnel who, under different kinds of contractual arrangements, act on behalf of the CoE outside the organization’s headquarters or of its usual place of activity. This implies that the protection this study will be investigating is that afforded while personnel are on duty, including during an official journey. This chapter, therefore, deals with the activity the CoE carries out in order to protect its personnel performing tasks on its behalf, with the aim to clarify whether either the CoE legal order or the practice of the organization itself may contribute to the creation of a customary rule requiring all international organizations to take care of their personnel sent on mission. The chapter also examines the different degree of protection the organization grants to different kinds of CoE workers.
Laura Magi
Chapter 12. Implementation of the Duty of Care by the Organization of American States
Abstract
The Organization of American States (OAS) does not have specific rules pertaining to a duty of care in its normative framework. The organization’s charter does not clearly define its responsibility towards staff, but certain Staff Rules and internal bulletins create systems to deal with harassment, gender discrimination, disaster risk management, social security, absence from work in special cases, and logistics. Although it has redress mechanisms, ‘reconsideration by the Secretary-General’ and the ‘Administrative Tribunal’, these mechanisms are yet to deal with a clear-cut case of a staff member sent on mission. There are contractual differences between career and continuous service personnel stationed at Headquarters (HQ) and country representation offices on official travel, and ‘Mission Staff’ hired under Special Observer and Performance Contracts. It seems that a substantial part of the OAS exposure to mission situations is its Human Rights and Electoral missions, which use overwhelmingly the latter forms of contract for its staff.
Leonardo Soares Nader, Samila Inácio Dutra
Chapter 13. Implementation of the Duty of Care by the African Union
Abstract
Most of the recruitment and deployment policies of the African Union Commission (AUC) guarantee a reasonable duty of care for the organization’s civilian employees. Notwithstanding, an analysis of the implementation of the provisions reveals gaps between the rhetoric of a reasonable standard of care and the practice. In addition, the analysis reveals an uneven application of the organization’s duty of care responsibilities to the different categories of its employees. Overall, non-AUC civilian staff deployed in various missions is guaranteed limited reasonable duty of care. While it is implausible to expect the same standard of care for all categories of civilians deployed in AUC missions, it is reasonable to expect that non-AUC civilian staff would at least have the requisite information to make informed decisions on the missions into which they are deployed. Given the increasing raft of challenges confronting deployments of various kinds and the fact that the AUC’s deployment is often into extremely challenging situations, strengthening its duty of care framework and enhancing its implementation in practice is an urgent imperative.
Linda Akua Opongmaa Darkwa
Chapter 14. Implementation of the Duty of Care by the World Bank
Abstract
The objective of this chapter is to assess how the organizations of the World Bank Group implement the duty of care owed to personnel who are performing official tasks, or on assignment, outside the Washington DC headquarters. The first section of this chapter analyzes the WB Group’s internal law on rights and obligations of the Bank and its staff, as fashioned by the jurisprudence of the World Bank Administrative Tribunal, and its scope of application. The second section examines in more detail how the various aspects of the duty of care obligation are addressed within the WB Group, focusing in particular on: non-discrimination, health and safety of the personnel, information on potential dangers and adequate training, specific challenges and threats, effective medical services after an incident has occurred, and the exercise of functional protection. The final section gives a brief overview of the WB Group’s internal administrative procedures established to address personnel’s requests and complaints.
Annamaria Viterbo
Chapter 15. Practical Measures in the Implementation of the Duty of Care by International Organizations
Abstract
This chapter provides practical advice aimed at guiding international organizations in the implementation of the duty of care principles emerging from this book. It underscores the importance of international organizations having competent individuals capable of carrying out on-going risk assessments that will need to be taken into consideration in building and modifying policies and setting up control measures to eliminate or mitigate risks. With a view towards prevention and protecting the traveller or assignee, the chapter explores health and medical risks, safety and security risks, road traffic safety as well as hotel safety. The section on pre-travel arrangements addresses activities which need to be carried out prior to departure and underscores the importance of the traveller’s briefing. The section on incident management focuses on the importance of an emergency plan, and the identification of headquarters and site-level emergency management teams within the organization. The need for an organization’s comprehensive ability to deal with medical emergencies is explored and the final section addresses the training and equipment necessary to support the provision of an adequate level of duty of care.
David Gold

The Duty of Care as a Corollary of States’ Duty to Protect Human Rights and Its Implications for International Organizations

Frontmatter
Chapter 16. The Duty of Care as a Corollary of International Organizations’ Human Rights Obligations
Abstract
The duty of care can be considered a corollary of positive obligations, requiring international organizations not only to refrain from the intentional and unlawful taking of life (or from the violation of physical and moral integrity) of their civilian personnel, but also to take appropriate steps to safeguard their lives, as well as their health and safety. This chapter explores the different sources of human rights obligations for international organizations, with reference to both treaty law and customary law. It is argued then that human rights obligations bearing upon international organizations include a positive dimension as well. Positive obligations are in fact addressed as inherent in the nature of substantial human rights rules, rather than as the outcome of the interpretation of human rights treaties by regional courts or UN Committees. Finally, after a tentative definition of the main features and content of duty of care, the chapter clarifies to what extent the principle of specialty might affect international organizations’ human rights positive obligations.
Ludovica Poli
Chapter 17. The Transnational Dimension of International Organizations’ Duty of Care Towards Their Civilian Personnel: Lessons from the Case Law on States’ Extraterritorial Human Rights Obligations
Abstract
The purpose of this chapter is to establish under which conditions the civilian personnel sent on mission fall within the human rights jurisdiction of the sending international organization, and the extent of the positive human rights obligations that the latter, consequently, owes to the former. Section 17.2 reviews the existing jurisprudence on the extraterritorial human rights obligations (ETOs) of States with a view to assessing whether the so-called ‘spatial’ model and ‘personal’ model of jurisdiction can provide adequate conceptual bases for the grounding of international organizations’ human rights obligations towards their civilian personnel sent on mission. Section 17.3, building upon the tripartite definition of jurisdiction elaborated by King and taking stock of the available ETO jurisprudence, distills the principles that ground the human rights jurisdiction of an international organization and delimit the extent of its positive human rights obligations towards its personnel. The conclusions of this analysis support the existence of a duty of care anchored in international human rights law that places on the sending international organization positive obligations towards its civilian personnel wherever the latter carries out its tasks, the existence of which does not depend on the formal nature of the employment relationship between the international organization and the individual.
Chiara Macchi
Chapter 18. Victims’ Right to Reparation and the Residual Application of Diplomatic and/or Functional Protection
Abstract
It is traditionally considered that under the existing international legal framework the obligation to provide reparations is incumbent on any actor/subject of international law that is accountable for the damage, material and moral, resulting from the breach of an international obligation. This is a key corollary of the attribution of international responsibility for wrongful acts, and as such it pertains to both States and international organizations. After providing a short overview of how the right to reparation developed beyond the traditional inter-State paradigm, this chapter will address the issue of redress for victims, focusing on civilian personnel sent on missions or assignments outside their normal place of activity, as well as on international organizations’ breaches of their duty of care. Furthermore, this chapter will discuss the residual application of States’ diplomatic protection and international organizations’ functional protection, in cases where the injury suffered by the staff member engages the interests of the State of nationality, the international organization, or both.
Francesca Capone
Chapter 19. Concluding Remarks
Abstract
In the preface to this book, Micaela Frulli highlighted the importance of a research project on the duty of care of international organizations. Indeed, it appears to be a rather underestimated issue, which nonetheless has a dramatic impact on the administration of international organizations, as the first chapter of this book proved.
Edoardo Greppi
Backmatter
Metadata
Title
The Duty of Care of International Organizations Towards Their Civilian Personnel
Editors
Prof. Dr. Andrea de Guttry
Prof. Micaela Frulli
Prof. Edoardo Greppi
Ph.D. Chiara Macchi
Copyright Year
2018
Publisher
T.M.C. Asser Press
Electronic ISBN
978-94-6265-258-3
Print ISBN
978-94-6265-257-6
DOI
https://doi.org/10.1007/978-94-6265-258-3