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Agim Behrami & Bekir Behrami v. France; Ruzhdi Saramati v. France, Germany & Norway

Published online by Cambridge University Press:  27 February 2017

Pierre Bodeau-Livinec ,
Gionata P. Buzzini  and
Santiago Villalpando
Pierre Bodeau-Livinec
Affiliation:
Codification Division, Office of Legal Affairs, United Nations
Gionata P. Buzzini
Affiliation:
Codification Division, Office of Legal Affairs, United Nations
Santiago Villalpando
Affiliation:
Codification Division, Office of Legal Affairs, United Nations
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Type
International Decisions
Information
American Journal of International Law , Volume 102 , Issue 2 , April 2008 , pp. 323 - 331
Copyright
Copyright © American Society of International Law 2008 

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Footnotes

*

The views expressed herein are those of the authors and do not necessarily reflect the views of the United Nations.

References

1 Joined App. Nos. 71412/01 & 78166/01 (Eur. Ct. H.R. May 2, 2007). The judgments and decisions of the European Court of Human Rights, as well as its basic texts, are available at <http://www.echr.coe.int/echr>.

2 In Saramati, the applicant withdrew his case against Germany as having no demonstrable foundation. The Court therefore decided unanimously to strike the application against Germany out of its list of cases and considered the admissibility issues only with respect to the applications against France and Norway.

3 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950 Google Scholar, ETS No. 5,213 UNTS 222, available at <http://www.echr.coe.int>.

4 Under that provision, “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms” defined in the European Convention. In conformity with the Court’s jurisprudence, this issue is one of admissibility since it determines the applications’ compatibility ratione loci and personae with the Convention’s provisions.

5 See Banković v. Belgium, Eur. Ct. H.R. 2001 –XII, para. 71 (see case report by Alexandra, Ruth & Mirja, Trilsch at 97 AJIL 168 (2003)Google Scholar):

[T]he case–law of the Court demonstrates that its recognition of the exercise of extra–territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.

6 See infra note 9 and accompanying text.

7 The Court noted that in this respect the present cases were different from Bosphorus Hava Yollan Turizm ve Ticaret Anonim Şirketi v. Ireland, Eur. Ct. H.R. 2005–VI, where it had declared itself competent to consider the seizure of the applicant’s leased aircraft carried out by the respondent state authorities, on its territory, and pursuant to a decision by one of its ministers.

8 The qualification “in principle” appears in paragraph 141. It should be noted, however, that at paragraph 151 the Court presents a stronger formulation, according to which the actions of KFOR are “directly attributable to the UN.”

9 Draft Article 3 (“General principles”) provides:

  1. 1.

    1. Every internationally wrongful act of an international organization entails the international responsibility of the international organization.

  2. 2.

    2. There is an internationally wrongful act of an international organization when conduct consisting of an action or omission:

    1. (a)

      (a) Is attributable to the international organization under international law; and

    2. (b)

      (b) Constitutes a breach of an international obligation of that international organization.

For the commentary to this draft article, see Report of the International Law Commission on Its Fifty–fifth Session, UN GAOR, 58th Sess., Supp. No. 10, at 45–49, UN Doc. A/58/10 (2003).

10 Draft Article 5 (“Conduct of organs or agents placed at the disposal of an international organization by a State or another international organization”) provides:

The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.

For the commentary to this draft article, see Report of the International Law Commission on Its Fifty–sixth Session, UN GAOR, 59th Sess., Supp. No. 10, at 110–15, UN Doc. A/59/10 (2004) [hereinafter 2004 ILC Report].

11 In fact, draft Article 3 corresponds mutatis mutandis to Articles 1 and 2 of Responsibility of States for Internationally Wrongful Acts. See Report of the International Law Commission on Its Fifty–third Session, UN GAOR, 56th Sess., Supp. No. 10, at 63–74, UN Doc. A/56/10 (2001).

12 See 2004 ILC Report, supra note 10, at 110. Draft Article 4 (“General rule on attribution of conduct to an international organization”) provides:

  1. 1.

    1. The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization.

  2. 2.

    2. For the purposes of paragraph 1, the term “agent” includes officials and other persons or entities through whom the organization acts.

  3. 3.

    3. Rules of the organization shall apply to the determination of the functions of its organs and agents.

  4. 4.

    4. For the purpose of the present draft article, “rules of the organization” means, in particular: the constituent instruments; decisions, resolutions and other acts taken by the organization in accordance with those instruments; and established practice of the organization.

13 2004 ILC Report, supra note 10, at 110.

14 Id. at 111 (emphasis added).

15 Id. at 113.

16 This conclusion would seem to remain valid even if, in this context, the test of the “effective control” were to be applied in a more flexible way than for the attribution to a state of conduct performed by a de facto organ. See Paolo, Palchetti, Azioni di forze istituite o autorizzate dalle Nazioni Unite davanti alla Corte europea dei diritti dell’uomo: i casi Behrami e Saramati, 90 Rivista di Diritto Internazionale 681, 686–87 (2007)Google Scholar.

17 The Court stated (para. 144):

It is therefore the case that the impugned action and inaction are, in principle, attributable to the UN. It is, moreover, clear that the UN has a legal personality separate from that of its member states ([Reparation for Injuries Suffered in the Service of the United Nations, 1949 ICJ Rep. 174 (Apr. 11)]) and that that organisation is not a Contracting Party to the Convention.

18 The Court noted (para. 151, emphasis added) that “[i]n the present cases, the impugned acts and omissions of KFOR and UNMIK cannot be attributed to the respondent States and, moreover, did not take place on the territory of those States or by virtue of a decision of their authorities.”

19 2004 ILC Report, supra note 10, at 101; see Report of the International Law Commission on its Fifty–eighth Session, UN GAOR, 61st Sess., Supp. No. 10, at 277–78, UN Doc. A/61/10 (2006) [hereinafter 2006 ILC Report].

20 2004 ILC Report, supra note 10, at 110.

21 See, in particular, the following passages:

Article 5 deals with the . . . situation in which the lent organ or agent still acts to a certain extent as organ of the lending State or as organ or agent of the lending organization. This occurs for instance in the case of military contingents that a State placed at the disposal of the United Nations for a peacekeeping operation, since the State retains disciplinary powers and criminal jurisdiction over the members of the national contingent. In this situation the problem arises whether a specific conduct of the lent organ or agent has to be attributed to the receiving organization or to the lending State or organization.” {Id. (footnote omitted, emphasis added))

The criterion for attribution of conduct either to the contributing State or organization or to the receiving organization is based according to article 5 on the factual control that is exercised over the specific conduct taken by the organ or agent placed at the receiving organization’s disposal.” (Id. at 111 (emphasis added))

In the context of the placement of an organ or agent at the disposal of an international organization, control . . . does not concern the issue whether a certain conduct is attributable at all to a State or an international organization, but rather to which entity—the contributing State or organization or the receiving organization— conduct is attributable.” {Id. (footnote omitted, emphasis added))

22 Id. at 110. The hypothesis of dual or multiple attribution in this context has been formulated by Luigi, Condorelli, Le statut des forces de l’ONU et le droit international humanitaire , 78 Rivista Di Dirit to Internazionale 881, 893–97 (1995)Google Scholar.

23 See draft Articles 25 to 28 and the commentaries thereto, 2006 ILC Report, supra note 19, at 277–86. Draft Article 28 (“International responsibility in case of provision of competence to an international organization”) provides:

  1. 1.

    1. A State member of an international organization incurs international responsibility if it circumvents one of its international obligations by providing the organization with competence in relation to that obligation, and the organization commits an act that, if committed by that State, would have constituted a breach of that obligation.

  2. 2.

    2. Paragraph 1 applies whether or not the act in question is internationally wrongful for the international organization.

24 In a recent report to the Security Council, the secretary–general envisaged the latter option as the most suitable kind of operation in a scenario where the security situation in a country would remain highly volatile (see Report of the Secretary–General on the Situation in Somalia Pursuant to Paragraphs 3 and 9 of Security Council Resolution 1744 (2007), para. 60, UN Doc. S/2007/204*).

25 See Report of the International Law Commission on Its Fifty–ninth Session, UN GAOR, 62nd Sess., Supp. No. 10, at 234, UN Doc. A/62/10 (2007).

26 Kasumaj v. Greece, App. No. 6974/05 (Eur. Ct. H.R. July 5, 2007).

27 Gajic v. Germany, App. No. 31446/02 (Eur. Ct. H.R. Aug. 28, 2007).

28 Berić v. Bosnia and Herzegovina, App. No. 36357/04 (Eur. Ct. H.R. Oct. 16, 2007).

29 Id., para. 30.

30 Id., para. 28.

31 R (on the application of Al–Jedda) (FC) v. Secretary of State for Defence, [2007] UKHL 58, para. 105, at <http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm> (see case report in this issue by Alexander Orakhelashvili).