File #2417: "2018_Book_TheDutyOfCareOfInternationalOr.pdf"
Text
1|Foreword|5
1|Preface and Acknowledgements|7
1|Contents|11
1|Editors and Contributors|14
1|Abbreviations|17
1|The Duty of Care of International Organizations: Setting the Scene|20
1|1 International Organizations and Alleged Duty of Care Breaches: A Growing Ethical, Reputational and Financial Challenge|21
2|Abstract|22
2|1.1 Quantitative Figures: Jurisprudence|23
2|1.2 Overview of the Available Literature|28
2|1.3 Number of People Injured/Fatalities|30
2|1.4 Reputational Issues|31
3|1.4.1 Media Coverage|34
2|1.5 Ombudsman|37
2|1.6 Insurance|40
2|1.7 Conclusions|41
2|List of References|43
1|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|47
2|Abstract|48
2|2.1 Introduction|49
2|2.2 The Notion of ‘Duty of Care’ in Domestic Law and in International Law: A Few General Remarks|52
2|2.3 The Legal Foundations of the Duty of Care in the International Legal Framework: An Autonomous Rule or a Part of an Existing Human Rights Rule?|54
2|2.4 Scope and Content of the ‘Duty of Care’ According to Recent International and National Jurisprudence: The Specific Obligations Incumbent on International Organizations|62
3|2.4.1 Provide a Working Environment Conducive to the Health and Safety of Personnel|64
3|2.4.2 Actively Protect the Officers Facing Specific Challenges and Threats and, When Using Independent Contractors, Use Reasonable Care in Selecting Them and Maintain a Sufficiently Close Supervision over Them to Make Sure That They Use Reasonable Care|67
3|2.4.3 Protect Personnel’s Private Property|73
3|2.4.4 Offer Labour Contracts Which Are Fair and Which Take into Due Consideration the Particular Nature of the Risks Associated with the Specific Working Place/Tasks|74
3|2.4.5 Make Adequate Information Available to Personnel About the Potential Dangers They Might Face and About the Specific Situation in the Country of Destination|75
3|2.4.6 Treat the Working Force in Good Faith, with Due Consideration, with no Discrimination, to Preserve Their Dignity and to Avoid Causing Them Unnecessary Injury|77
3|2.4.7 Have Sound Internal Administrative Procedures, Act in Good Faith and Have Properly Functioning Internal Investigation Mechanisms to Address Requests and Complaints by Personnel Within a Reasonable Time|79
3|2.4.8 Provide Effective Medical Services to Personnel Should an Emergency Occur and Afterwards, Even Through an Efficient Insurance Policy, and Adopt the Necessary Measures to Guarantee the Well-Being of Staff|83
3|2.4.9 Exercise ‘Functional’ (or ‘Diplomatic’) Protection|85
3|2.4.10 Provide Personnel with Adequate Training and the Necessary Equipment to Carry out Safely the Task to Be Performed|86
2|2.5 The Obligations Incumbent on the Personnel of the Sending Organization|88
2|2.6 The Consequences of the Violation of the Duty of Care Obligations by International Organizations Sending Their Personnel Abroad|90
2|2.7 Concluding Remarks|92
2|List of References|93
2|List of Cases|95
1|3 The Duty of Care of International Organizations: Issues of Conduct and Responsibility Attribution|100
2|Abstract|100
2|3.1 Introduction|101
2|3.2 The Rules on International Responsibility and Their Relevance in Allocating the Responsibility to Discharge the Duty of Care|103
2|3.3 Can the Answer Be Found in the Principles Governing Attribution of Conduct?|106
3|3.3.1 Relying on the Organic Link|108
3|3.3.2 The Exercise of Control|111
2|3.4 Attribution of Responsibility|114
2|3.5 An Appraisal|116
2|List of References|117
2|List of Cases|118
1|4 Overlapping Responsibility: The Legal Relationship Between the International Organization and the Host State|119
2|Abstract|119
2|4.1 Introduction|120
2|4.2 First Example: Security of Personal Residences|121
2|4.3 Comparison Between the Hosting State Under the Law of International Organizations and the Territorial State Under Human Rights Law|124
2|4.4 Second Example: Evacuation|126
2|4.5 Primary (and ‘Secondary’) Responsibility|128
2|4.6 Third Example: The Exchange of Information Between International Organizations and the Hosting State|131
2|4.7 Coordination with the Hosting State|132
2|4.8 Conclusion|137
2|List of References|138
2|List of Cases|141
1|5 The Duty of States to Ensure Respect of the Duty of Care through Their Membership in International Organizations|142
2|Abstract|142
2|5.1 Introduction and Purpose of the Chapter|143
2|5.2 Piercing the ‘Institutional Veil’: The Duty of States to Ensure Human Rights in the Framework of International Organizations of Which They Are Members|145
3|5.2.1 Preliminary Remarks on the Responsibility of Member States in Connection with the Conduct of an International Organization|145
3|5.2.2 The Contribution Made by ECtHR Jurisprudence|147
4|5.2.2.1 The Equivalent Protection Doctrine and the Domestic Implementation of Binding Acts Emanating from International Organizations|148
4|5.2.2.2 The Equivalent Protection Doctrine and the Responsibility of States as Members|150
2|5.3 Ensuring the Duty of Care Towards Civilian Personnel Sent on Missions Through the Membership of International Organizations|153
3|5.3.1 Applying the Inferred Principles in the Context of the Duty of Care|153
3|5.3.2 The Duty to Act and Vote in Institutional Settings in a Manner That Ensures the Respect of the Duty of Care|154
3|5.3.3 The Duty to Ensure an Adequate Level of Judicial Protection in Labour Disputes|156
2|5.4 From Theory to Practice: The Case Study of the UN Medical Support Manual for United Nations Field Missions and the Role of Member States|158
2|5.5 Final Remarks|160
2|List of References|161
2|List of Cases|163
1|6 International Organizations as Employers: Examining the Duty of Care in the Light of the Different Forms of Employment Relationships|165
2|Abstract|165
2|6.1 The Context and the Critical Issues: Some Preliminary Remarks|166
2|6.2 The Variety of Employment Relationships Between International Organizations and Their Personnel|169
3|6.2.1 Non-staff Members as a ‘Shadowy and Silent Workforce’?|171
3|6.2.2 Locally Recruited Staff Versus Internationally Recruited Staff|174
2|6.3 Concluding Remarks|176
2|List of References|177
1|The Implementation of the Duty of Care by Selected International Organizations: Specific Legal and Practical Challenges|179
1|7 Implementation of the Duty of Care by the United Nations|180
2|Abstract|181
2|7.1 Introduction|181
2|7.2 Review of the Relevant Internal Legal Sources|183
3|7.2.1 An Examination of Relevant Hard and Soft Law|184
3|7.2.2 Review of Internal Regulations and Rules, ST/SGBs and Administrative Instructions|186
3|7.2.3 Other Relevant Policies and Prospective New Developments|188
2|7.3 The Scope of Application of the Duty of Care for UN Personnel|189
3|7.3.1 The Personal Scope of the Duty of Care: Duty Bearers|189
3|7.3.2 The Addressees of the Duty of Care: Right Holders|191
3|7.3.3 The Duty of Care and Its Application Ratione Loci|194
2|7.4 The Content of the Duty of Care: Analysis of Policies and Practices|195
3|7.4.1 Preventive and Mitigating Measures for the Health, Well-Being and Safety of UN Personnel and Their Dependants and Their Property|195
3|7.4.2 Adequate and Effective Medical Services in Cases of Emergency and in Their Aftermath|200
3|7.4.3 Towards a Culture of Security: Information, Awareness and Training|201
3|7.4.4 Staff Care and Support|203
3|7.4.5 The Duty of Care and Contractual Issues—Special Provisions and Established Allowances|205
3|7.4.6 Reasonable Care in Selecting Private Contractors and in Maintaining a Sufficiently Close Supervision over Their Work|207
3|7.4.7 Mechanisms for Redress|209
3|7.4.8 Functional Protection|210
3|7.4.9 Extent of Protection in Cases of Expulsion from a Host Member State|212
2|7.5 Consequences of Violations|213
2|7.6 Conclusions and Recommendations|215
2|List of References|217
2|List of Cases|219
1|8 Implementation of the Duty of Care by the European Union|221
2|Abstract|222
2|8.1 Introduction|222
2|8.2 Legal Sources|223
3|8.2.1 Internal Sources|223
3|8.2.2 International Sources|225
2|8.3 Scope of Application|226
3|8.3.1 The Application Ratione Materiae|226
3|8.3.2 The Application Ratione Loci|227
3|8.3.3 The Application Ratione Personae|229
2|8.4 The Responsibility to Afford Protection|230
3|8.4.1 The EU and Third Countries|230
4|8.4.1.1 Status of Mission Agreements|231
4|8.4.1.2 The Participation of Third Countries in EU-Led Missions|232
4|8.4.1.3 EU Delegations in Third Countries|234
3|8.4.2 The EU and the Member States|235
2|8.5 The Content of the Duty of Care Within the EU|238
3|8.5.1 Provide a Working Environment Conducive to the Health and Safety of Its Personnel|240
3|8.5.2 Actively Protect Officers Facing Specific Challenges and Threats|240
3|8.5.3 Offer Labour Contracts Which Are Fair and Which Take into Due Consideration the Peculiar Nature of the Risks Associated with the Specific Working Place/Tasks|243
3|8.5.4 Make Adequate Information Available to Personnel About the Potential Dangers They Might Face|244
3|8.5.5 Treat the Working Force in Good Faith, with Due Consideration, with no Discrimination, to Preserve Their Dignity and to Avoid Causing Them Unnecessary Suffering|244
3|8.5.6 Provide Effective Medical Services Should an Emergency Occur|245
3|8.5.7 The Exercise of Diplomatic and Functional Protection|245
3|8.5.8 Provide the Personnel with Adequate Training|247
2|8.6 Remedies and the Consequences of Violations of the Duty of Care|248
2|8.7 Conclusions and Recommendations|249
2|List of References|251
2|List of Cases|253
1|9 Implementation of the Duty of Care by NATO|254
2|Abstract|254
2|9.1 Introduction|255
2|9.2 Legal Sources|256
2|9.3 Scope Ratione Personae and Loci of the Duty of Care|259
2|9.4 Content of the Duty of Care|262
3|9.4.1 Health and Safety|262
3|9.4.2 Protection of Private Property|265
3|9.4.3 Labour Contracts|265
3|9.4.4 Training and Equipment|266
3|9.4.5 Prohibition of Discrimination and Protection of Dignity|267
3|9.4.6 Administrative Procedures|269
3|9.4.7 Exercise of Functional Protection|270
2|9.5 The Obligations Incumbent upon NATO Civilian Personnel|271
2|9.6 Concluding Remarks|272
2|List of References|274
2|Further Reading|274
2|List of Cases|275
1|10 Implementation of the Duty of Care by the OSCE|276
2|Abstract|276
2|10.1 Introduction|277
2|10.2 Review of the Relevant Internal Legal Sources|281
2|10.3 Sources of the Duty of Care|286
2|10.4 Scope of Application of Duty of Care Policies|288
2|10.5 Content of the Duty of Care: Analysis of Policies and Practices|289
3|10.5.1 Provide a Working Environment Conducive to the Health and Safety of the Personnel and Effective Medical Services to the Personnel Should an Emergency Occur|289
3|10.5.2 Actively Protect the Officials Facing Specific Challenges and Threats|291
3|10.5.3 Protect Personnel’s Private Property and Offer Labour Contracts Which Are Fair and Which Take into Due Consideration the Peculiar Nature of the Risks Associated with the Specific Work Place/Tasks|292
3|10.5.4 Make Adequate Information Available to the Personnel About the Potential Dangers They Might Face|293
3|10.5.5 Treat the Work Force in Good Faith, with Due Consideration, with no Discrimination, to Preserve Their Dignity and to Avoid Causing Them Unnecessary Injury|294
3|10.5.6 Have Sound Internal Administrative Procedures, Act in Good Faith and Have Proper Functioning Internal Investigation Mechanism to Address Requests and Complaints by Their Personnel Within a Reasonable Time|294
3|10.5.7 Exercise ‘Functional (or Diplomatic) Protection’|296
3|10.5.8 Duty to Provide Adequate Training|298
2|10.6 Consequences of Violations|299
2|10.7 Conclusions: Containing Recommendations for the OSCE|300
2|List of References|301
1|11 Implementation of the Duty of Care by the Council of Europe|304
2|Abstract|304
2|11.1 Introduction|305
2|11.2 Legal Sources|305
2|11.3 The Duty of Care—Scope of Application|306
2|11.4 Duty Holder|307
2|11.5 Content of the Duty of Care|307
3|11.5.1 Staff Members|307
4|11.5.1.1 Working Environment Conducive to Health and Safety|308
4|11.5.1.2 Protection Against Specific Threats: Risk Assessment and Other Measures|310
4|11.5.1.3 Independent Contractors|311
4|11.5.1.4 Protection of Private Property|311
4|11.5.1.5 Fair Labour Contracts|312
4|11.5.1.6 Information About Potential Dangers|312
4|11.5.1.7 No Discriminating and Abusive Treatment|312
4|11.5.1.8 Internal Investigation Mechanisms|313
4|11.5.1.9 Functional Protection|314
4|11.5.1.10 Training|315
3|11.5.2 Consultants and Seconded Personnel|316
3|11.5.3 Electoral Observers|317
2|11.6 Consequences of Duty of Care Violations|318
2|11.7 Conclusions and Recommendations|319
2|List of References|319
2|List of Cases|320
1|12 Implementation of the Duty of Care by the Organization of American States|321
2|Abstract|322
2|12.1 Introduction|322
2|12.2 Legal Sources|324
3|12.2.1 Finding the Duty of Care in Inter-American Documents: What to Look For?|324
3|12.2.2 OAS Norms Dealing with the Duty of Care|326
2|12.3 Scope of Application of the DoC Policies|329
3|12.3.1 Applicable Duty-Bearers|329
3|12.3.2 Ratione Personae Scope of the Relevant Policies|330
3|12.3.3 Ratione Loci Scope of the Relevant Policies|332
2|12.4 Content of the DoC: Analysis of Policies and Practices|334
3|12.4.1 The Duty to Provide a Working Environment Conducive to the Health and Safety of Personnel|334
3|12.4.2 Actively Protect the Officers Facing Specific Challenges and Threats and, When Using Independent Contractors, Use Reasonable Care in Selecting Them and Maintain Sufficiently Close Supervision over Them to Make Sure That They too Fulfil All Contractual Obligations in a Timely Manner with Reasonable Care|335
3|12.4.3 Protect Personnel’s Private Property|336
3|12.4.4 Offer Labour Contracts Which Are Fair and Which Take into Due Consideration the Peculiar Nature of the Risks Associated with the Specific Working Place/Tasks|336
3|12.4.5 Make Adequate Information Available to Personnel About the Potential Dangers They Might Face|337
3|12.4.6 Treat the Workforce in Good Faith, with Due Consideration, with no Discrimination, to Preserve Their Dignity and to Avoid Causing Them Unnecessary Injury|338
3|12.4.7 Have Sound Internal Administrative Procedures, Act in Good Faith and Have Proper Functioning Internal Investigation Mechanisms to Address Requests and Complaints by Personnel Within a Reasonable Time|339
3|12.4.8 Provide Effective Medical Services to Personnel Should an Emergency Occur|340
3|12.4.9 Exercise ‘Functional (or ‘Diplomatic’) Protection’|340
3|12.4.10 Provide Personnel with Adequate Training and the Necessary Equipment to Carry out Safely the Task to Be Performed|342
2|12.5 Consequences of Violations|342
2|12.6 Conclusions and Recommendations|343
2|List of References|344
2|List of Cases|344
1|13 Implementation of the Duty of Care by the African Union|346
2|Abstract|347
2|13.1 Introduction|347
2|13.2 The Relevant Internal Legal Sources of the AU’s Duty of Care|348
2|13.3 The Scope of Application of the AU’s Duty of Care Provisions|350
2|13.4 The Content of the AU’s Duty of Care Provisions|351
3|13.4.1 The Provision of a Safe and Healthy Working Environment|351
3|13.4.2 The Active Protection of Officers Facing Specific Challenges and Threats|353
3|13.4.3 The Provision of Adequate Information Concerning the Specific Risks in the Mission and Commensurate Contracts|353
3|13.4.4 Protect Personnel’s Private Property|354
3|13.4.5 Treat the Workforce in Good Faith, with Due Consideration, with no Discrimination, to Preserve Their Dignity and to Avoid Causing Them Unnecessary Injury|355
3|13.4.6 Procedures and Internal Investigation Mechanisms|355
3|13.4.7 The Provision of Effective Medical Services|357
3|13.4.8 The Provision of Functional/Diplomatic Protection|358
3|13.4.9 Adequate Training|359
2|13.5 Implementing the AU’s Duty of Care: The State of Play|359
3|13.5.1 The State of Play in Field Missions|360
3|13.5.2 The State of Play in Other Missions|362
2|13.6 Conclusions|363
3|13.6.1 Recommendations|364
2|List of References|365
1|14 Implementation of the Duty of Care by the World Bank|366
2|Abstract|366
2|14.1 Introductory Remarks|367
2|14.2 Legal Sources|369
3|14.2.1 Internal Sources|369
3|14.2.2 External Sources|371
2|14.3 Scope of Application|372
3|14.3.1 Ratione Loci|372
3|14.3.2 Ratione Personae|372
2|14.4 Content of the WB Group’s Duty of Care Obligations|374
3|14.4.1 Non-discrimination|374
3|14.4.2 Health and Safety of Personnel|375
3|14.4.3 Information on Potential Dangers and Adequate Training|376
3|14.4.4 Specific Challenges and Threats|377
3|14.4.5 Effective Medical Services After an Incident Has Occurred|379
3|14.4.6 Exercise of Functional Protection|381
2|14.5 Administrative Procedures|382
2|14.6 Conclusions and Recommendations|385
2|List of References|386
2|List of Cases|388
1|15 Practical Measures in the Implementation of the Duty of Care by International Organizations|389
2|Abstract|389
2|15.1 Introduction|390
2|15.2 Practical Measures in the Implementation of the Duty of Care|391
3|15.2.1 Provide a Working Environment Conducive to the Health and Safety of Its Personnel|391
4|15.2.1.1 Risk Assessment|391
4|15.2.1.2 Policy Framework|393
4|15.2.1.3 Incident Management|395
4|15.2.1.4 Exercises and Drills|396
3|15.2.2 The International Organizations’ Duty to Protect Their Civilian Personnel|397
4|15.2.2.1 Health and Medical Issues|397
4|15.2.2.2 Safety and Security|400
3|15.2.3 Pre-travel Arrangements|403
3|15.2.4 Make Adequate Information Available to Personnel About the Potential Dangers They Might Face and About the Specific Situation in the Country of Destination|404
4|15.2.4.1 Travellers’ Briefings|404
4|15.2.4.2 Arrival Considerations|406
4|15.2.4.3 At the Destination|406
3|15.2.5 (8) Provide Effective Medical Services to Personnel Should an Emergency Occur|407
3|15.2.6 (10) Provide Personnel with Adequate Training and the Necessary Equipment to Carry out Safely the Task to Be Performed|408
4|15.2.6.1 Training|408
4|15.2.6.2 Equipment|411
2|15.3 Conclusions|411
2|List of References|412
1|The Duty of Care as a Corollary of States’ Duty to Protect Human Rights and Its Implications for International Organizations|414
1|16 The Duty of Care as a Corollary of International Organizations’ Human Rights Obligations|415
2|Abstract|415
2|16.1 Introduction|416
2|16.2 Humanization, Institutionalisation and the Relevance of International Organizations in the Protection of Human Rights|417
2|16.3 Sources of Human Rights Obligations for International Organizations|418
3|16.3.1 Treaty Law|419
4|16.3.1.1 Constitutive Instruments|419
4|16.3.1.2 Human Rights Treaties|420
3|16.3.2 General Law|422
4|16.3.2.1 Customary Law|422
4|16.3.2.2 General Principles|423
3|16.3.3 Internal Acts and Self-regulation|424
2|16.4 Positive Obligations and the Duty of Care|425
2|16.5 Positive Obligations and Due Diligence: A Tentative Definition of the Contents of International Organizations’ Duty of Care|429
2|16.6 The Principle of Specialty and the Distinction Between Negative and Positive Obligations|432
2|16.7 Concluding Remarks|435
2|List of References|436
2|List of Cases|438
1|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|439
2|Abstract|439
2|17.1 Introduction|440
2|17.2 Exploring the Relevance of the ‘Spatial’ and ‘Personal’ Models of Jurisdiction for the Purpose of Establishing the Human Rights Jurisdiction of an International Organization|442
3|17.2.1 The ‘Spatial Model’ of Human Rights Jurisdiction|443
3|17.2.2 The ‘Personal Model’ of Human Rights Jurisdiction Interpreted as ‘Effective Control or Authority’ over a Person and Recent Developments in the Strasbourg Jurisprudence|446
2|17.3 Human Rights Jurisdiction as a Result of the International Organization’s De Facto Power Relationship with Its Civilian Personnel Sent on Mission|450
3|17.3.1 Human Rights Jurisdiction as a Result of a De Facto Power Relationship Between the International Organization and Its Civilian Personnel|451
3|17.3.2 The Extent of the International Organization’s Positive Human Rights Obligations Towards Its Civilian Personnel Sent on Mission|455
2|17.4 Conclusions|458
2|List of References|459
2|List of Cases|461
1|18 Victims’ Right to Reparation and the Residual Application of Diplomatic and/or Functional Protection|463
2|Abstract|463
2|18.1 Introduction|464
2|18.2 An Overview of the Reparation Awards Issued by International Administrative Tribunals|469
3|18.2.1 A Few Preliminary Caveats on the ‘Route’ to Reparations|469
3|18.2.2 The Substance of the Relief Afforded by International Organizations|471
2|18.3 The Residual Application of Diplomatic Protection and Functional Protection|475
3|18.3.1 Diplomatic Protection of International Organizations’ Staff Members by National States|477
3|18.3.2 The Functional Protection of International Organizations|480
2|18.4 Concluding Remarks|482
2|List of References|484
2|List of Cases|486
1|19 Concluding Remarks|487
1|Appendix:: Guidelines|491
2|Annex I:: Guiding Principles on the Implementation by International Organizations of Their Duty of Care Obligations Towards Their Civilian Personnel|491
1|Guiding Principles on the Implementation by International Organizations of Their Duty of Care Obligations Towards Their Civilian Personnel|492
1|Appendix:: Jurisprudence of Administrative Tribunals|507
2|Outline placeholder|0
3|Annex II:: Jurisprudence of Administrative Tribunals—Summary of Selected Cases|507
1|Preface and Acknowledgements|7
1|Contents|11
1|Editors and Contributors|14
1|Abbreviations|17
1|The Duty of Care of International Organizations: Setting the Scene|20
1|1 International Organizations and Alleged Duty of Care Breaches: A Growing Ethical, Reputational and Financial Challenge|21
2|Abstract|22
2|1.1 Quantitative Figures: Jurisprudence|23
2|1.2 Overview of the Available Literature|28
2|1.3 Number of People Injured/Fatalities|30
2|1.4 Reputational Issues|31
3|1.4.1 Media Coverage|34
2|1.5 Ombudsman|37
2|1.6 Insurance|40
2|1.7 Conclusions|41
2|List of References|43
1|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|47
2|Abstract|48
2|2.1 Introduction|49
2|2.2 The Notion of ‘Duty of Care’ in Domestic Law and in International Law: A Few General Remarks|52
2|2.3 The Legal Foundations of the Duty of Care in the International Legal Framework: An Autonomous Rule or a Part of an Existing Human Rights Rule?|54
2|2.4 Scope and Content of the ‘Duty of Care’ According to Recent International and National Jurisprudence: The Specific Obligations Incumbent on International Organizations|62
3|2.4.1 Provide a Working Environment Conducive to the Health and Safety of Personnel|64
3|2.4.2 Actively Protect the Officers Facing Specific Challenges and Threats and, When Using Independent Contractors, Use Reasonable Care in Selecting Them and Maintain a Sufficiently Close Supervision over Them to Make Sure That They Use Reasonable Care|67
3|2.4.3 Protect Personnel’s Private Property|73
3|2.4.4 Offer Labour Contracts Which Are Fair and Which Take into Due Consideration the Particular Nature of the Risks Associated with the Specific Working Place/Tasks|74
3|2.4.5 Make Adequate Information Available to Personnel About the Potential Dangers They Might Face and About the Specific Situation in the Country of Destination|75
3|2.4.6 Treat the Working Force in Good Faith, with Due Consideration, with no Discrimination, to Preserve Their Dignity and to Avoid Causing Them Unnecessary Injury|77
3|2.4.7 Have Sound Internal Administrative Procedures, Act in Good Faith and Have Properly Functioning Internal Investigation Mechanisms to Address Requests and Complaints by Personnel Within a Reasonable Time|79
3|2.4.8 Provide Effective Medical Services to Personnel Should an Emergency Occur and Afterwards, Even Through an Efficient Insurance Policy, and Adopt the Necessary Measures to Guarantee the Well-Being of Staff|83
3|2.4.9 Exercise ‘Functional’ (or ‘Diplomatic’) Protection|85
3|2.4.10 Provide Personnel with Adequate Training and the Necessary Equipment to Carry out Safely the Task to Be Performed|86
2|2.5 The Obligations Incumbent on the Personnel of the Sending Organization|88
2|2.6 The Consequences of the Violation of the Duty of Care Obligations by International Organizations Sending Their Personnel Abroad|90
2|2.7 Concluding Remarks|92
2|List of References|93
2|List of Cases|95
1|3 The Duty of Care of International Organizations: Issues of Conduct and Responsibility Attribution|100
2|Abstract|100
2|3.1 Introduction|101
2|3.2 The Rules on International Responsibility and Their Relevance in Allocating the Responsibility to Discharge the Duty of Care|103
2|3.3 Can the Answer Be Found in the Principles Governing Attribution of Conduct?|106
3|3.3.1 Relying on the Organic Link|108
3|3.3.2 The Exercise of Control|111
2|3.4 Attribution of Responsibility|114
2|3.5 An Appraisal|116
2|List of References|117
2|List of Cases|118
1|4 Overlapping Responsibility: The Legal Relationship Between the International Organization and the Host State|119
2|Abstract|119
2|4.1 Introduction|120
2|4.2 First Example: Security of Personal Residences|121
2|4.3 Comparison Between the Hosting State Under the Law of International Organizations and the Territorial State Under Human Rights Law|124
2|4.4 Second Example: Evacuation|126
2|4.5 Primary (and ‘Secondary’) Responsibility|128
2|4.6 Third Example: The Exchange of Information Between International Organizations and the Hosting State|131
2|4.7 Coordination with the Hosting State|132
2|4.8 Conclusion|137
2|List of References|138
2|List of Cases|141
1|5 The Duty of States to Ensure Respect of the Duty of Care through Their Membership in International Organizations|142
2|Abstract|142
2|5.1 Introduction and Purpose of the Chapter|143
2|5.2 Piercing the ‘Institutional Veil’: The Duty of States to Ensure Human Rights in the Framework of International Organizations of Which They Are Members|145
3|5.2.1 Preliminary Remarks on the Responsibility of Member States in Connection with the Conduct of an International Organization|145
3|5.2.2 The Contribution Made by ECtHR Jurisprudence|147
4|5.2.2.1 The Equivalent Protection Doctrine and the Domestic Implementation of Binding Acts Emanating from International Organizations|148
4|5.2.2.2 The Equivalent Protection Doctrine and the Responsibility of States as Members|150
2|5.3 Ensuring the Duty of Care Towards Civilian Personnel Sent on Missions Through the Membership of International Organizations|153
3|5.3.1 Applying the Inferred Principles in the Context of the Duty of Care|153
3|5.3.2 The Duty to Act and Vote in Institutional Settings in a Manner That Ensures the Respect of the Duty of Care|154
3|5.3.3 The Duty to Ensure an Adequate Level of Judicial Protection in Labour Disputes|156
2|5.4 From Theory to Practice: The Case Study of the UN Medical Support Manual for United Nations Field Missions and the Role of Member States|158
2|5.5 Final Remarks|160
2|List of References|161
2|List of Cases|163
1|6 International Organizations as Employers: Examining the Duty of Care in the Light of the Different Forms of Employment Relationships|165
2|Abstract|165
2|6.1 The Context and the Critical Issues: Some Preliminary Remarks|166
2|6.2 The Variety of Employment Relationships Between International Organizations and Their Personnel|169
3|6.2.1 Non-staff Members as a ‘Shadowy and Silent Workforce’?|171
3|6.2.2 Locally Recruited Staff Versus Internationally Recruited Staff|174
2|6.3 Concluding Remarks|176
2|List of References|177
1|The Implementation of the Duty of Care by Selected International Organizations: Specific Legal and Practical Challenges|179
1|7 Implementation of the Duty of Care by the United Nations|180
2|Abstract|181
2|7.1 Introduction|181
2|7.2 Review of the Relevant Internal Legal Sources|183
3|7.2.1 An Examination of Relevant Hard and Soft Law|184
3|7.2.2 Review of Internal Regulations and Rules, ST/SGBs and Administrative Instructions|186
3|7.2.3 Other Relevant Policies and Prospective New Developments|188
2|7.3 The Scope of Application of the Duty of Care for UN Personnel|189
3|7.3.1 The Personal Scope of the Duty of Care: Duty Bearers|189
3|7.3.2 The Addressees of the Duty of Care: Right Holders|191
3|7.3.3 The Duty of Care and Its Application Ratione Loci|194
2|7.4 The Content of the Duty of Care: Analysis of Policies and Practices|195
3|7.4.1 Preventive and Mitigating Measures for the Health, Well-Being and Safety of UN Personnel and Their Dependants and Their Property|195
3|7.4.2 Adequate and Effective Medical Services in Cases of Emergency and in Their Aftermath|200
3|7.4.3 Towards a Culture of Security: Information, Awareness and Training|201
3|7.4.4 Staff Care and Support|203
3|7.4.5 The Duty of Care and Contractual Issues—Special Provisions and Established Allowances|205
3|7.4.6 Reasonable Care in Selecting Private Contractors and in Maintaining a Sufficiently Close Supervision over Their Work|207
3|7.4.7 Mechanisms for Redress|209
3|7.4.8 Functional Protection|210
3|7.4.9 Extent of Protection in Cases of Expulsion from a Host Member State|212
2|7.5 Consequences of Violations|213
2|7.6 Conclusions and Recommendations|215
2|List of References|217
2|List of Cases|219
1|8 Implementation of the Duty of Care by the European Union|221
2|Abstract|222
2|8.1 Introduction|222
2|8.2 Legal Sources|223
3|8.2.1 Internal Sources|223
3|8.2.2 International Sources|225
2|8.3 Scope of Application|226
3|8.3.1 The Application Ratione Materiae|226
3|8.3.2 The Application Ratione Loci|227
3|8.3.3 The Application Ratione Personae|229
2|8.4 The Responsibility to Afford Protection|230
3|8.4.1 The EU and Third Countries|230
4|8.4.1.1 Status of Mission Agreements|231
4|8.4.1.2 The Participation of Third Countries in EU-Led Missions|232
4|8.4.1.3 EU Delegations in Third Countries|234
3|8.4.2 The EU and the Member States|235
2|8.5 The Content of the Duty of Care Within the EU|238
3|8.5.1 Provide a Working Environment Conducive to the Health and Safety of Its Personnel|240
3|8.5.2 Actively Protect Officers Facing Specific Challenges and Threats|240
3|8.5.3 Offer Labour Contracts Which Are Fair and Which Take into Due Consideration the Peculiar Nature of the Risks Associated with the Specific Working Place/Tasks|243
3|8.5.4 Make Adequate Information Available to Personnel About the Potential Dangers They Might Face|244
3|8.5.5 Treat the Working Force in Good Faith, with Due Consideration, with no Discrimination, to Preserve Their Dignity and to Avoid Causing Them Unnecessary Suffering|244
3|8.5.6 Provide Effective Medical Services Should an Emergency Occur|245
3|8.5.7 The Exercise of Diplomatic and Functional Protection|245
3|8.5.8 Provide the Personnel with Adequate Training|247
2|8.6 Remedies and the Consequences of Violations of the Duty of Care|248
2|8.7 Conclusions and Recommendations|249
2|List of References|251
2|List of Cases|253
1|9 Implementation of the Duty of Care by NATO|254
2|Abstract|254
2|9.1 Introduction|255
2|9.2 Legal Sources|256
2|9.3 Scope Ratione Personae and Loci of the Duty of Care|259
2|9.4 Content of the Duty of Care|262
3|9.4.1 Health and Safety|262
3|9.4.2 Protection of Private Property|265
3|9.4.3 Labour Contracts|265
3|9.4.4 Training and Equipment|266
3|9.4.5 Prohibition of Discrimination and Protection of Dignity|267
3|9.4.6 Administrative Procedures|269
3|9.4.7 Exercise of Functional Protection|270
2|9.5 The Obligations Incumbent upon NATO Civilian Personnel|271
2|9.6 Concluding Remarks|272
2|List of References|274
2|Further Reading|274
2|List of Cases|275
1|10 Implementation of the Duty of Care by the OSCE|276
2|Abstract|276
2|10.1 Introduction|277
2|10.2 Review of the Relevant Internal Legal Sources|281
2|10.3 Sources of the Duty of Care|286
2|10.4 Scope of Application of Duty of Care Policies|288
2|10.5 Content of the Duty of Care: Analysis of Policies and Practices|289
3|10.5.1 Provide a Working Environment Conducive to the Health and Safety of the Personnel and Effective Medical Services to the Personnel Should an Emergency Occur|289
3|10.5.2 Actively Protect the Officials Facing Specific Challenges and Threats|291
3|10.5.3 Protect Personnel’s Private Property and Offer Labour Contracts Which Are Fair and Which Take into Due Consideration the Peculiar Nature of the Risks Associated with the Specific Work Place/Tasks|292
3|10.5.4 Make Adequate Information Available to the Personnel About the Potential Dangers They Might Face|293
3|10.5.5 Treat the Work Force in Good Faith, with Due Consideration, with no Discrimination, to Preserve Their Dignity and to Avoid Causing Them Unnecessary Injury|294
3|10.5.6 Have Sound Internal Administrative Procedures, Act in Good Faith and Have Proper Functioning Internal Investigation Mechanism to Address Requests and Complaints by Their Personnel Within a Reasonable Time|294
3|10.5.7 Exercise ‘Functional (or Diplomatic) Protection’|296
3|10.5.8 Duty to Provide Adequate Training|298
2|10.6 Consequences of Violations|299
2|10.7 Conclusions: Containing Recommendations for the OSCE|300
2|List of References|301
1|11 Implementation of the Duty of Care by the Council of Europe|304
2|Abstract|304
2|11.1 Introduction|305
2|11.2 Legal Sources|305
2|11.3 The Duty of Care—Scope of Application|306
2|11.4 Duty Holder|307
2|11.5 Content of the Duty of Care|307
3|11.5.1 Staff Members|307
4|11.5.1.1 Working Environment Conducive to Health and Safety|308
4|11.5.1.2 Protection Against Specific Threats: Risk Assessment and Other Measures|310
4|11.5.1.3 Independent Contractors|311
4|11.5.1.4 Protection of Private Property|311
4|11.5.1.5 Fair Labour Contracts|312
4|11.5.1.6 Information About Potential Dangers|312
4|11.5.1.7 No Discriminating and Abusive Treatment|312
4|11.5.1.8 Internal Investigation Mechanisms|313
4|11.5.1.9 Functional Protection|314
4|11.5.1.10 Training|315
3|11.5.2 Consultants and Seconded Personnel|316
3|11.5.3 Electoral Observers|317
2|11.6 Consequences of Duty of Care Violations|318
2|11.7 Conclusions and Recommendations|319
2|List of References|319
2|List of Cases|320
1|12 Implementation of the Duty of Care by the Organization of American States|321
2|Abstract|322
2|12.1 Introduction|322
2|12.2 Legal Sources|324
3|12.2.1 Finding the Duty of Care in Inter-American Documents: What to Look For?|324
3|12.2.2 OAS Norms Dealing with the Duty of Care|326
2|12.3 Scope of Application of the DoC Policies|329
3|12.3.1 Applicable Duty-Bearers|329
3|12.3.2 Ratione Personae Scope of the Relevant Policies|330
3|12.3.3 Ratione Loci Scope of the Relevant Policies|332
2|12.4 Content of the DoC: Analysis of Policies and Practices|334
3|12.4.1 The Duty to Provide a Working Environment Conducive to the Health and Safety of Personnel|334
3|12.4.2 Actively Protect the Officers Facing Specific Challenges and Threats and, When Using Independent Contractors, Use Reasonable Care in Selecting Them and Maintain Sufficiently Close Supervision over Them to Make Sure That They too Fulfil All Contractual Obligations in a Timely Manner with Reasonable Care|335
3|12.4.3 Protect Personnel’s Private Property|336
3|12.4.4 Offer Labour Contracts Which Are Fair and Which Take into Due Consideration the Peculiar Nature of the Risks Associated with the Specific Working Place/Tasks|336
3|12.4.5 Make Adequate Information Available to Personnel About the Potential Dangers They Might Face|337
3|12.4.6 Treat the Workforce in Good Faith, with Due Consideration, with no Discrimination, to Preserve Their Dignity and to Avoid Causing Them Unnecessary Injury|338
3|12.4.7 Have Sound Internal Administrative Procedures, Act in Good Faith and Have Proper Functioning Internal Investigation Mechanisms to Address Requests and Complaints by Personnel Within a Reasonable Time|339
3|12.4.8 Provide Effective Medical Services to Personnel Should an Emergency Occur|340
3|12.4.9 Exercise ‘Functional (or ‘Diplomatic’) Protection’|340
3|12.4.10 Provide Personnel with Adequate Training and the Necessary Equipment to Carry out Safely the Task to Be Performed|342
2|12.5 Consequences of Violations|342
2|12.6 Conclusions and Recommendations|343
2|List of References|344
2|List of Cases|344
1|13 Implementation of the Duty of Care by the African Union|346
2|Abstract|347
2|13.1 Introduction|347
2|13.2 The Relevant Internal Legal Sources of the AU’s Duty of Care|348
2|13.3 The Scope of Application of the AU’s Duty of Care Provisions|350
2|13.4 The Content of the AU’s Duty of Care Provisions|351
3|13.4.1 The Provision of a Safe and Healthy Working Environment|351
3|13.4.2 The Active Protection of Officers Facing Specific Challenges and Threats|353
3|13.4.3 The Provision of Adequate Information Concerning the Specific Risks in the Mission and Commensurate Contracts|353
3|13.4.4 Protect Personnel’s Private Property|354
3|13.4.5 Treat the Workforce in Good Faith, with Due Consideration, with no Discrimination, to Preserve Their Dignity and to Avoid Causing Them Unnecessary Injury|355
3|13.4.6 Procedures and Internal Investigation Mechanisms|355
3|13.4.7 The Provision of Effective Medical Services|357
3|13.4.8 The Provision of Functional/Diplomatic Protection|358
3|13.4.9 Adequate Training|359
2|13.5 Implementing the AU’s Duty of Care: The State of Play|359
3|13.5.1 The State of Play in Field Missions|360
3|13.5.2 The State of Play in Other Missions|362
2|13.6 Conclusions|363
3|13.6.1 Recommendations|364
2|List of References|365
1|14 Implementation of the Duty of Care by the World Bank|366
2|Abstract|366
2|14.1 Introductory Remarks|367
2|14.2 Legal Sources|369
3|14.2.1 Internal Sources|369
3|14.2.2 External Sources|371
2|14.3 Scope of Application|372
3|14.3.1 Ratione Loci|372
3|14.3.2 Ratione Personae|372
2|14.4 Content of the WB Group’s Duty of Care Obligations|374
3|14.4.1 Non-discrimination|374
3|14.4.2 Health and Safety of Personnel|375
3|14.4.3 Information on Potential Dangers and Adequate Training|376
3|14.4.4 Specific Challenges and Threats|377
3|14.4.5 Effective Medical Services After an Incident Has Occurred|379
3|14.4.6 Exercise of Functional Protection|381
2|14.5 Administrative Procedures|382
2|14.6 Conclusions and Recommendations|385
2|List of References|386
2|List of Cases|388
1|15 Practical Measures in the Implementation of the Duty of Care by International Organizations|389
2|Abstract|389
2|15.1 Introduction|390
2|15.2 Practical Measures in the Implementation of the Duty of Care|391
3|15.2.1 Provide a Working Environment Conducive to the Health and Safety of Its Personnel|391
4|15.2.1.1 Risk Assessment|391
4|15.2.1.2 Policy Framework|393
4|15.2.1.3 Incident Management|395
4|15.2.1.4 Exercises and Drills|396
3|15.2.2 The International Organizations’ Duty to Protect Their Civilian Personnel|397
4|15.2.2.1 Health and Medical Issues|397
4|15.2.2.2 Safety and Security|400
3|15.2.3 Pre-travel Arrangements|403
3|15.2.4 Make Adequate Information Available to Personnel About the Potential Dangers They Might Face and About the Specific Situation in the Country of Destination|404
4|15.2.4.1 Travellers’ Briefings|404
4|15.2.4.2 Arrival Considerations|406
4|15.2.4.3 At the Destination|406
3|15.2.5 (8) Provide Effective Medical Services to Personnel Should an Emergency Occur|407
3|15.2.6 (10) Provide Personnel with Adequate Training and the Necessary Equipment to Carry out Safely the Task to Be Performed|408
4|15.2.6.1 Training|408
4|15.2.6.2 Equipment|411
2|15.3 Conclusions|411
2|List of References|412
1|The Duty of Care as a Corollary of States’ Duty to Protect Human Rights and Its Implications for International Organizations|414
1|16 The Duty of Care as a Corollary of International Organizations’ Human Rights Obligations|415
2|Abstract|415
2|16.1 Introduction|416
2|16.2 Humanization, Institutionalisation and the Relevance of International Organizations in the Protection of Human Rights|417
2|16.3 Sources of Human Rights Obligations for International Organizations|418
3|16.3.1 Treaty Law|419
4|16.3.1.1 Constitutive Instruments|419
4|16.3.1.2 Human Rights Treaties|420
3|16.3.2 General Law|422
4|16.3.2.1 Customary Law|422
4|16.3.2.2 General Principles|423
3|16.3.3 Internal Acts and Self-regulation|424
2|16.4 Positive Obligations and the Duty of Care|425
2|16.5 Positive Obligations and Due Diligence: A Tentative Definition of the Contents of International Organizations’ Duty of Care|429
2|16.6 The Principle of Specialty and the Distinction Between Negative and Positive Obligations|432
2|16.7 Concluding Remarks|435
2|List of References|436
2|List of Cases|438
1|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|439
2|Abstract|439
2|17.1 Introduction|440
2|17.2 Exploring the Relevance of the ‘Spatial’ and ‘Personal’ Models of Jurisdiction for the Purpose of Establishing the Human Rights Jurisdiction of an International Organization|442
3|17.2.1 The ‘Spatial Model’ of Human Rights Jurisdiction|443
3|17.2.2 The ‘Personal Model’ of Human Rights Jurisdiction Interpreted as ‘Effective Control or Authority’ over a Person and Recent Developments in the Strasbourg Jurisprudence|446
2|17.3 Human Rights Jurisdiction as a Result of the International Organization’s De Facto Power Relationship with Its Civilian Personnel Sent on Mission|450
3|17.3.1 Human Rights Jurisdiction as a Result of a De Facto Power Relationship Between the International Organization and Its Civilian Personnel|451
3|17.3.2 The Extent of the International Organization’s Positive Human Rights Obligations Towards Its Civilian Personnel Sent on Mission|455
2|17.4 Conclusions|458
2|List of References|459
2|List of Cases|461
1|18 Victims’ Right to Reparation and the Residual Application of Diplomatic and/or Functional Protection|463
2|Abstract|463
2|18.1 Introduction|464
2|18.2 An Overview of the Reparation Awards Issued by International Administrative Tribunals|469
3|18.2.1 A Few Preliminary Caveats on the ‘Route’ to Reparations|469
3|18.2.2 The Substance of the Relief Afforded by International Organizations|471
2|18.3 The Residual Application of Diplomatic Protection and Functional Protection|475
3|18.3.1 Diplomatic Protection of International Organizations’ Staff Members by National States|477
3|18.3.2 The Functional Protection of International Organizations|480
2|18.4 Concluding Remarks|482
2|List of References|484
2|List of Cases|486
1|19 Concluding Remarks|487
1|Appendix:: Guidelines|491
2|Annex I:: Guiding Principles on the Implementation by International Organizations of Their Duty of Care Obligations Towards Their Civilian Personnel|491
1|Guiding Principles on the Implementation by International Organizations of Their Duty of Care Obligations Towards Their Civilian Personnel|492
1|Appendix:: Jurisprudence of Administrative Tribunals|507
2|Outline placeholder|0
3|Annex II:: Jurisprudence of Administrative Tribunals—Summary of Selected Cases|507