The UN and Human Rights: Who Guards the Guardians? by Professor Guglielmo Verdirame

Author:Professor Guglielmo Verdirame
Language: eng
Format: mobi, pdf
Tags: Foreign & International Law, Law, Education & Reference
ISBN: 9780521841900
Publisher: Cambridge University Press
Published: 2010-01-01T18:30:00+00:00

Cambridge Books Online

http://ebooks.cambridge.org/

The UN and Human Rights

Who Guards the Guardians?

Guglielmo Verdirame

Book DOI: http://dx.doi.org/10.1017/CBO9780511862687

Online ISBN: 9780511862687

Hardback ISBN: 9780521841900

Chapter

6 - International administrations pp. 230-299

Chapter DOI: http://dx.doi.org/10.1017/CBO9780511862687.010

Cambridge University Press

6

International administrations

Introduction

It is axiomatic that authorities that exercise effective control over an

inhabited territory have the functional capacity – the power, but not

the right – to violate human rights. When the UN, which is no excep-

tion to this axiom, exercises territorial control, it normally does so

on the basis of an express mandate contained in a resolution of the

Security Council, in a treaty, or both; but there are also situations,

most notably refugee camps, in which the UN controls an inhabited

territory in the absence of such an express mandate, that is on a de

facto basis.

Those in effective control of territory may be assimilated to ‘public offi cials

or other persons acting in an offi cial capacity’ for the purposes of the def-

inition of torture and other human rights (see Article 1 of the Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment). The Committee Against Torture noted that ‘for some years

Somalia has been without a central government’ and that some ‘factions

operating in Mogadishu … have set up quasi-governmental institutions and

are negotiating the establishment of a common administration. It follows

then that, de facto , those factions exercise certain prerogatives that are com-

parable to those normally exercised by legitimate governments’. 1 For a nar-

rower view with respect to the risk posed ‘by a non-governmental entity’,

see GRB v Sweden (15 May 1998) CAT/C/20/D/083/1997 (at para. 6.5), where the

Committee considered the risk of rape or torture from the Shining Path

( Sendero Luminoso ) in Peru) to fall outside of Article 3 of the Convention.

International administrations of territory by a group of states, rather

than by an international organisation, were instituted in the nineteenth

1 See Elmi v. Australia (14 May 1999) CAT/C/22/D/120/1998, at paras. 6.5 and 6.7.

230

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introduction

231

century, the leading examples being the Free City of Cracow (1815–46),

the City of Shanghai (1845–1944) and the Island of Crete (1897–1909). 2

The administration of the Saarland by the League of Nations after the

First World War was the fi rst instance of an international organisa-

tion ruling over a territory. The League of Nations also had an admin-

istrative role in the City of Danzig under the terms of the Treaty of

Versailles, but on a more limited basis than in Saarland. The resident

High Commissioner of the League in Danzig acted as court of fi rst

instance in disputes between Poland and Danzig, while appeals were

considered by the Council of the League, which could in turn request an

advisory opinion from the Permanent Court of International Justice. 3

In the aftermath of the Second World War, the UN drew up plans for

various international administrations, for example in the Free City of

Trieste and in Jerusalem, but none was implemented until the inter-

national administration of West New Guinea (West Irian) in 1962–3 fol-

lowing an agreement between Indonesia and the Netherlands. 4 Since

the end of the cold

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