international organizations law review INTERNATIONAL
15 (2018) 411-415
ORGANIZATIONS
LAW REVIEW
brill.com/iolr
Book Review
⸪
Carla Ferstman
International Organizations and the Fight for Accountability: The Remedies and Repa-
rations Gap (Oxford University Press, 2017)
The picture gracing the cover of Carla Ferstman’s book International Organi-
zations and the Fight for Accountability sends a powerful message. It shows a
black man pictured from the back, head covered with a flame-red bandanna,
spraying a text on a wall. Readable are the words ‘ministo = kolera’, while he
is in the process of writing the letter K to start a new word with. While the
language may not be Oxford English, the message is clear: the un mission in
Haiti (often known as minustah, its acronym in French) is associated with
the outbreak of cholera in Haiti, and clearly, so the message suggests, the man
is paint-spraying out of frustration and anger. The picture is strong and sugges-
tive, as is the book. For Ferstman, who served for many years as the director
of human rights ngo Redress and was recently appointed senior lecturer at
the University of Essex, there can be no doubt that international organizations
violate the rights of individuals, and thus ought to be held accountable. The
message of the book, then, is that international organizations law falls far short
of this ideal.
Ferstman’s message is one with which it is difficult not to sympathise, and
to the extent that she sets out to make a case that the law is deficient, she suc-
ceeds very well. The book relentlessly drives home the point that there is an
accountability gap, especially in the second part. Here she suggests that in-
ternal adjudication mechanisms are insufficient; domestic courts are unlikely
to hear complaints by victims of human rights violation committed by inter-
national organizations due to the existence of privileges and immunities; re-
gional and international courts with the jurisdiction to hear such complaints
are few and far between, and few accept the locus standi of individuals at any
rate; and often organizations are able to shield individual perpetrators (or sus-
pects perhaps) from further scrutiny. This second part is informative, powerful
and systematic, but intellectually not particularly challenging.
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The more challenging part is part 1, where Ferstman sets out to demonstrate
that international organizations are legally bound to respect human rights and
humanitarian law (chapter 2); that some breaches of human rights and human-
itarian law might be attributable to international organizations (chapter 3),
and that international law recognises an obligation to afford reparation to the
victims of violations (chapter 4). In other words: where part 2 provides an over-
view of existing documents and procedures, the legal argument enabling that
overview is provided in part 1. For, if the legal argument is not sound, there
is little need to provide an overview of deficient procedures. Even starker: if
the legal argument is not sound, then it becomes difficult to criticise the exist-
ing procedures as deficient. If international organizations have no or limited
human rights obligations towards individuals, or if attribution proves prob-
lematic, then it would seem to follow that there is not so much a ‘remedies
and reparations gap’, as the subtitle suggests, but rather a more general legal
protection gap.1
While it is difficult not to sympathise with Ferstman’s message, the legal
argument is not immediately compelling. In particular chapters 2 and 3, to-
gether addressing the internationally wrongful act, are less than fully persua-
sive (chapter 1 introduces the book). Chapter 2 discusses the question why
international organizations are legally bound to respect human rights and hu-
manitarian law, and launches several theories to this effect. A first is that some
obligations may be derived ‘from the conferral of international legal personal-
ity’, perhaps either as an ‘inherent consequence’ of personality or, if this seems
to strong, then by virtue of these obligations ‘being necessary or otherwise re-
quired to fulfil the organizations’ purposes’ (at 16). She then seems to reject
the idea of ‘inherent obligations’, which lapses into a discussion of jus cogens
norms. Jus cogens norms may well be binding on international organizations,
but are few and far between and, more importantly, are binding on all sub-
jects of international law. Put differently, claiming that the un is bound to help
prevent and punish the crime of genocide is perfectly plausible, but the same
applies to Bulgaria, Belgium, Belize and Botswana and even, it would seem,
to all international organizations, ranging from the Universal Postal Union to
the European University Institute. If so, then further argument is required to
justify singling out the un and holding precisely the un accountable, rather
than Botswana or the European University Institute. Such a line of argument is
1 See generally Jan Klabbers, ‘Sources of International Organizations’ Law: Reflections on Ac-
countability’, in Samantha Besson and Jean d’Aspremont (eds), The Oxford Handbook on the
Sources of International Law (Oxford University Press, 2017) 987–1006.
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available by invoking the un’s mandate,2 and sometimes Ferstman catches a
glimpse of this kind or argument, but it is never fully developed.
For the better part, Ferstman seems to suggest that international organi-
zations are bound by human rights and humanitarian law obligations, and
grounds this in several arguments. Thus, for instance, she notes that a transfer
of competences from states to organizations should not create a gap in human
rights protection, and refers to the cjeu’s classic International Fruit Company
case—the ‘succession theory’—in support (at 20). But this is problematic, as
the succession theory was launched in the context of the eu’s commercial
policy and has only been applied in that particular setting, with one excep-
tion. That exception was the first Kadi decision of the Court of First Instance,
as Ferstman duly notes, but it was overruled (as she does not note) on appeal;
the 2008 Kadi decision of the cjeu, as is well-known, follows a rather different
logic.
International organizations, at least some of them, are also bound to respect
human rights and humanitarian law because ‘compliance becomes necessary
to fulfil the organization’s functions’ (at 22). Human rights, she suggests, oper-
ate as a ‘key lens’ for understanding the work of these organizations, and it is
here in particular that she relies on the mandate of organizations, referring to
the 1954 Effect of Awards opinion in which the icj linked the un’s mandate to
the legality of setting up an administrative tribunal. This construction (the un
is bound to respect human rights because its mandate involves human rights)
may make some sense with respect to the un and the African Union (her cho-
sen examples) and perhaps a few others as well, but she remains unclear about
how far the reasoning can be extended. Surely, the reasoning is far less persua-
sive with respect to, eg, the World Customs Organization, the World Meteoro-
logical Organization, or even the World Bank.
Here, however, customary law comes in, with the argument being that state
practice and opinio juris provide evidence that customary human rights and
humanitarian law is binding on international organizations. What is remark-
able here is the recurring reference to the practices and opinions of states rath-
er than organizations—the latter’s practices (instructions in field manuals, for
example) are addressed in a single paragraph. The problem then is that the rea-
soning assumes, for the better part, that international organizations are second
class citizens, whose fates and the extent and reach of their rights and obliga-
tions can be decided by states, ignoring the separate existence of international
organizations and ignoring the most plausible concept of c ustomary law as the
2 See Jan Klabbers, ‘Reflections on Role Responsibility: The Responsibility of International
Organizations for Failing to Act’ (2017) 28 European Journal of International Law 1133–1161.
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law originating in and applying within a particular political c ommunity—and
it is by no means self-evident that the political community of international
organizations is the same as that of states. All this points to theoretical inco-
herence. One cannot claim that organizations have their own obligations and
should be held accountable because they act in their own right, and simul-
taneously claim that their obligations do not depend on their own actions.
That kind of logic might justify imposing obligations on minors or other actors
whose capacity is deemed limited, but not on actors that are supposedly on
equal footing.
The chapter on attribution follows the ilc’s Articles on the Responsibility of
International Organizations to an uncomfortably large extent, despite Ferst-
man’s realisation (at 2) that these articles have little relevance for those situa-
tions when organizations are actually in a position to affect human rights. The
ario are geared, first and foremost, to violations of obligations owed towards
states or other organizations, and thus not particularly well-suited for studying
the ‘remedies and reparations gap’. The chapter therewith resembles the story
of the man who has lost his car keys at night and goes looking under the near-
est streetlight, not because that’s where he lost his keys, but because it is the
only place where he can see anything at all.
The chapter on the duty to provide reparations again suggests a theoreti-
cal inconsistency, in that it concludes that the obligation of international or-
ganizations to ensure that proper procedures are in place derives in human
rights law, Ferstman suggests, from the same obligation resting on states. Since
states must provide proper procedures, so must international organizations—
therewith again relegating organizations to secondary status. In humanitarian
law, the obligation to put proper procedures in place stems from a different
issue: the inability to rely on diplomatic protection. Here, the argument takes
on largely the character of wishful thinking, and Ferstman is honest enough to
acknowledge this, repeatedly underlining that this chapter is largely written de
lege ferenda.
Ferstman’s overall argument is one to sympathise with, and the second part,
listing the various gaps and deficiencies, is very well-done. The first part how-
ever, in which she is to make her legal case, is a little less gratifying, and as
such reflects an impasse in the discipline. International organizations lawyers
have struggled for decades now with trying to frame the sensible demand that
international organizations do not affect the rights of individuals in terms of
international law, and have generally proved incapable of doing so. Typically,
arguments take one of two forms. Either they become wishful thinking, under
vague reference perhaps to some kind of moral prescription: violating human
rights is bad, so organizations should not engage in such practices, and are
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therefore legally prohibited from doing so. Or then they refer back to the mem-
ber states, who cannot leave their sovereignty and their obligations behind
when they join an organization.
The irony is that in both cases, the argument does not stand a chance, and
may even be counter-productive. Law and morality may be related, but a moral
obligation is not therefore a legal one, and resting content with vague refer-
ences to morality only means that the legal argument will never get developed.
Resorting back to the member states, in turn, ensures that organizations are
not taken as full-fledged actors in their own right, and if they are not indepen-
dent actors in their own right, they can hardly incur responsibility in their own
right. Here then the baby and the bathwater make an appearance, something
ilc special rapporteur Gaja must have realised when holding that internation-
al legal personality is a conditio sine qua non for being able to commit an inter-
nationally wrongful act. Anything else reduces international organizations to
second class citizens.
In the end, Ferstman has written a fine study, highly readable and well-
informed, on the remedies and reparations gap. She knows her materials, and
knows what she is talking about. The one problem she faces and is unable to
solve is that the argument does not add up, but she is hardly alone in this.
The problems she encounters in making the argument are problems that are
central to the discipline, and may remain there as long as we insist that orga-
nizations remain creatures of their member states exercising delegated tasks
and functions.3 For purposes of ensuring the accountability of international
organizations, this is a frame that must be broken.
Jan Klabbers
University of Helsinki
[email protected]
3 See further Jan Klabbers, ‘The ejil Foreword: The Transformation of International Organiza-
tions Law’ (2015) 26 European Journal of International Law 9–82.
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