Attributing Wrongful Conduct of Implementing Partners to unhcr International Responsibility and Human Rights Violations in Refugee Camps

Refugee camps are often managed by a wide set of actors other than the Host State. The United Nations High Commissioner for Refugees (unhcr), tasked under international law to provide “international protection” to refugees and to seek “permanent solutions for the problem of refugees”, often sub-contracts the daily management of camps to non-governmental organizations (ngo). In 2013, unhcr collaborated with 733 ngos worldwide. Together with unhcr, these “implementing partners” often perform public powers normally exercised by the Host State. But when human rights violations occur following the conduct of a unhcr implementing partner, which actor(s) are responsible under international law? This article focuses on unhcr’s international responsibility for the conduct of ngo implementing partners. By exploring unhcr’s standard sub-contracting agreements through the lens of the International Law Commission’s (ilc) Articles on the Responsibility of International Organizations (ario), it answers questions such as: Which human rights requirements does unhcr place on implementing partners? Under what circumstances may unhcr be held responsible under the ario for the acts of its implementing partners? It finds that an application of the ario would make unhcr internationally responsible for the wrongful conduct of implementing partners, even when sub-contracting agreements include clauses absolving unhcr from any liability. * The author is grateful for comments on previous drafts by the anonymous reviewers. Downloaded from Brill.com03/27/2019 09:42:59AM via free access 43 Attributing Wrongful Conduct of Implementing Partners journal of international humanitarian legal studies 5 (2014) 42-69 1 See Statute of the United Nations High Commissioner for Refugees (unhcr Statute), adopted by the un General Assembly in ga Res 428, 14 December 1950, para. 1. 2 These actors include governments and their agencies, United Nations sister agencies, international organizations and non-governmental organizations. This article deals primarily with unhcr’s non-governmental implementing partners, and does not as such address situations where State agencies are unhcr implementing partners. See unhcr, ‘ngo Partnerships in Refugee Protection, Questions & Answers’ unhcr/ derngo/ Q&aa5 / eng 3, September 2007; T. Börzel and T. Risse, ‘Public-Private Partnerships: Effective and Legitimate Tools of Transitional Governance’, in E. Grande and L.W. Pauly (eds.), Complex Sovereignty, Reconstituting Political Authority in the Twenty-First Century 195 (2005), at 201. 3 M. Janmyr, Protecting Civilians in Refugee Camps: Unwilling and Unable States, unhcr and International Responsibility (2014). 4 For a thorough elaboration of non-governmental organizations in international law, see A-K. Lindblom, Non-Governmental Organizations in International Law (2005).


Introduction
The refugee camp may be considered an anomalous establishment, being situated on the territory of a Host State but in practice often managed by a wide range of actors other than State authorities.Under international law, the United Nations High Commissioner for Refugees (unhcr) is specifically tasked to provide "international protection" to refugees and to seek "permanent solutions for the problem of refugees".1In fulfilling its mandate in general, and administering refugee camps in particular, unhcr relies to a large extent on partnerships with a wide spectrum of actors.2While unhcr's relation to the Host State in the context of international responsibility has been dealt with elsewhere,3 this article focuses on the Organization's so-called "implementing partnerships", where unhcr, through a formal project agreement, sub-contracts certain tasks to a non-governmental organization (ngo).4In 2013, unhcr collaborated with 733 ngos worldwide, and many of these are an intricate part of the power structure of refugee camps.Together with unhcr they varyingly perform all or some of the public powers normally exercised by the Host State.Typically, unhcr negotiates conditions with government authorities, approves the campsite, and functions as a supervisor or performance evaluator.The ngo sub-contractors are hired to manage the camp and Janmyr journal of international humanitarian legal studies 5 (2014) 42-69 5 O.E.Olsen and K.S. Scharffscher, 'Rape in Refugee Camps as Organisational Failures' , 8 International Journal of Human Rights 377 (2004), at 387.See also un Secretary-General, Investigation into sexual exploitation of refugees by aid workers in West Africa: Note by the Secretary-General, A/57/465, 11 October 2002, at 12. 6 Agier, for instance, describes how in the Zambian Maheba camp, unhcr had delegated its powers to the national section of the Lutheran World Foundation, which in turn deployed agents who were Zambian nationals and refugees.See M. Agier, Managing the Undesirables: Refugee Camps and Humanitarian Government (2011), at 82. See also un Secretary-General, supra note 5, at 4. 7 Lindblom, supra note 4, at 525. provide for the necessary food, health facilities, water/sanitation, schools, security and other essential services.5In other words, these ngos are charged by unhcr with carrying out unhcr functions.They may also delegate to yet another set of actors, such as to the refugees themselves.6While ngos may have an important role to play when it comes to refugee protection, it is often pointed out that they are seldom accountable to the people on whose behalf they claim to speak.7 The increasing delegation of authority often brings about a number of human rights concerns -indeed, the behavior of unhcr personnel and implementing partners hit the headlines in the early 2000s when a widely-publicized scandal unfolded in Guinea, Liberia and Sierra Leone.8A report by unhcr and Save the Children concluded that there was compelling evidence of a "chronic and entrenched pattern" of abuse in refugee camps in the three West African countries, involving mostly locally employed workers for international ngos.During the same time period, InterAid, a unhcr implementing partner in Uganda, was reported to have directed police to use excessive force against refugees on numerous occasions.As specifically asserted by Verdirame and Harrell-Bond, the "inhuman treatment accorded to refugees waiting for their asylum cases to be heard or to receive services at the offices of unhcr or their implementing partners has been so widely reported that it can be described as normative."9On other occasions, abuse has not been perpetrated by unhcr implementing partners, but these have omitted to take steps to prevent human rights violations from occurring.In Roma camps for internally displaced persons in Mitrovica, Kosovo, set up by unhcr when Kosovo was under un administration, the Norwegian Church Aid (nca) ostensibly did little to prevent exposure to serious and lethal health risks due to detrimental conditions in the camp that it managed.10Several studies by the World Health Organization (who) and others have found that the communities were affected by extremely high levels of lead contamination, especially children who were found to have lead blood levels which amounted to a medical emergency.11In view of these realities, and in terms of achieving justice for victims of human rights violations in refugee camps, it is important that we address the allocation of responsibility for human rights violations taking place in these spaces.While international law has increasingly recognized that both States and international organizations are subjects of international law and can thus be held responsible under the law of international responsibility, the same is not entirely true when it comes to ngos.Here, the traditional view stresses that ngos are not subjects of international law, and cannot therefore in a strict sense have international obligations and thus engage with the international laws of responsibility.12This article aims to address this very problematic issue area by focusing on unhcr's international responsibility for the conduct of its ngo implementing partners.Through an exploration of unhcr's standard agreements with its implementing partners as well as the International Law Commission's (ilc) Articles on the Responsibility of International Organizations (ario),13 adopted in the summer of 2011, this article aims to answer questions such as: which human rights requirements, if any, does unhcr place on its implementing partners?When human rights violations occur following the conduct of a unhcr implementing partner, who shall be held liable under international law?Under what circumstances may unhcr be held responsible under the ario for the acts of its implementing partners?
In addressing these queries, this article builds upon earlier work on the international responsibility of unhcr,14 but does not address other potential avenues of accountability for the actions of ngos outside that of the rules of international responsibility.Any independent liability of the ngo thus falls outside the scope of this article but may indeed be triggered in the domestic legal arena or by recourse to non-legal avenues such as various humanitarian accountability projects.15This article begins with an overview of the nature and scope of unhcr's implementing partnerships, before explaining the general procedure of unhcr's delegation of functions.It thereafter explores unhcr's standard Tripartite Sub-Project Agreement, which is typically the most important legal instrument setting out the obligations of the implementing ngo in any given situation.The article's third section analyzes the Agreement in light of the ilc's Articles on the Responsibility of International Organizations, paying particular attention to the question of whether or not these ngos can be considered to be unhcr "agents", and whether they do, in fact, perform unhcr "functions".Concluding that unhcr may indeed be held responsible under the ario for the conduct of its implementing partners, even when an Agreement includes clauses aimed at absolving unhcr from any responsibility whatsoever, in its final section, this article sets out a few recommendations aimed at clarifying the relations between unhcr and its implementing partners.

1
Perspectives on Implementing Partnerships unhcr has been working with ngos ever since it first began assisting displaced persons in Europe following the end of World War ii, when it cooperated with about 100 national and international "voluntary societies".From a unhcr point of view, there are a number of benefits to sub-contracting ngos to perform specific tasks in refugee camps.ngos are perceived as vital to the successful conduct of unhcr's programs, and as the Organization has pointed The PARinAC Global ngo and unhcr Conference included 182 ngo representatives from 83 countries, as well as observers from intergovernmental bodies, the United Nations system, agencies and members of Executive Committee.The conference, which took place in Oslo, Norway, from 6-9 June 1994, adopted by consensus the Oslo Declaration and Plan of Action, which endorses the regional proposals from all the consultations.
instance, stems from the fact that it enables unhcr to hire protection staff "at a fraction of the cost of a un staff member".23In the surge project the International Rescue Committee (irc) recruits, trains and deploys protection officers to unhcr field offices when there are increased protection needs and limited unhcr staff.24ngo staff are seconded to unhcr to perform various protection activities such as monitoring refugee returns and child protection, but areas of intervention for surge Protection Officers also include the physical security of refugees, arrest and detention, and border monitoring.25 Thus, ngo staff often "'do not hesitate to go deep in the field' at less costly salary scales compared to unhcr regular staff […]."26The numbers of unhcr implementing and operational partners have steadily risen over the years.27In the mid-1960s, unhcr's partners numbered less than 20, of which half were large international ngos.28In response to major refugee emergencies in the Horn of Africa, Asia and Central America during the 1980s, this number rose significantly; for instance, in the late 1980s, there were over 100 international ngos working in the Afghan refugee camps in Pakistan.29During the 1990s, the High Commissioner called for a redoubling of unhcr's partnerships, and subsequently launched the Partnership in Action (PARinAC) initiative in 1994.30By 2004, unhcr had formal project agreements with over 500 ngos, of which 80 percent were local or national organizations.31In 2007, this number had been significantly augmented to include project agreements with 649 ngos, of which 75 percent were local or national ngos.32In 2013, unhcr collaborated with 733 ngos worldwide, of which 567 were national and local ngos and 166 were international.33 For a long period, unhcr channeled approximately half of its raised funds through its implementing partners, but in 2009, approximately 35 percent of unhcr's expenditures were spent through all partners.34In 2013, unhcr funding channeled through ngos and other partners reached a record high, exceeding usd 1.15 billion, a 23 percent increase compared to 2012.35The use of implementing partners is as such not only an integrated part of almost all unhcr activities, but administering and managing partnership agreements remains a major administrative and operational task for many unhcr representations.36In fact, in the late 1990s and early 2000s, the number of subagreements concluded each year between unhcr and its implementing partners and government partners ranged between 1,300 and 1,400.37

A unhcr's Competence to Delegate Functions
To be able to delegate its powers, unhcr must possess either the express or implied competence to do so.39unhcr possesses a competence to delegate certain functions to its non-governmental implementing partners deriving from its mandate as expressed in the unhcr Statute.40In stark contrast to unhcr's predecessor, the International Refugee Organization (iro), unhcr was at the outset intended to be essentially non-operational.41The idea of subcontracting certain functions to other actors is as such an important aspect of unhcr's intended operation.Articles 10 and 12 of the Statute specifically establish the basis for these implementing partnerships.According to Article 10 of the Statute, the High Commissioner "[…] shall administer any funds, public or private, which he receives for assistance to refugees, and shall distribute them among the private and, as appropriate, public agencies which he deems best qualified to administer such assistance".As such, the Statute has expressly opened for international assistance to be channeled through international and national ngos to the refugees under unhcr's mandate.42 Article 12 of unhcr's Statute also authorizes the High Commissioner to invite the "cooperation" of the "specialized agencies".The term "cooperation" which is referenced to in Article 12, seems to be understood, at least by unhcr's Executive Committee, to correspond with the notion of "partnership": Partnership is at the foundation of the way international protection is envisaged in the 1951 Convention and the 1967 Protocol, and in unhcr's Mandate.Key provisions of both acknowledge that the effective performance of unhcr's functions depends on its cooperation with states, unhcr Executive Commitee, supra note 16, paras.This would essentially mean that any agreement that unhcr enters into with the view of forging a partnership that contributes to unhcr's discharge of its functions, could be seen as a cooperation agreement.44Partnership agreements in their very essence arguably constitute a form of cooperation as envisaged in the unhcr Statute.

B General Process of Delegation
In order to ascertain unhcr's responsibility for the conduct of its implementing partners, it is important to understand the process of delegation and contractual relationship between unhcr and the ngo.unhcr has explicitly referred to the relationship with its implementing partners as one of delegation, explaining how "[t]he delegation of the implementation of an assistance project is embodied in an implementing agreement […]"45 However, in the view of unhcr, the first instance of "delegation" generally occurs when unhcr headquarters in Geneva through a "Letter of Instruction" (loi) delegates the project implementation authority to a unhcr Representative in a Field Office.46In certain situations an "Emergency Letter of Instruction" (eloi) may be issued instead of the usual loi, with the purpose of giving the unhcr Representative in a country where an emergency situation is evolving the immediate authority to enter into agreements with implementing partners.The responsibilities for unhcr's implementing partners are defined in the appropriate implementing agreement, which provide the legal basis for the delegation of project implementation.
unhcr's provision of international protection and material assistance in a Host State is generally organized in terms of "projects", meaning a designated part of a protection or assistance program.47A project generally consists of a number of sub-projects, which are each implemented by a given partner.Thus, the legally binding "sub-project agreements", generally either a "tripartite agreement" between unhcr, the refugee-hosting government and an implementing partner, or a very similar "bipartite agreement" between either unhcr and the implementing partner or unhcr and the host government, are the most common form of agreements.A so-called "headquarters agreement" may also be drawn up in a situation where there is only one implementing partner for a project, as may an interim "Letter of Mutual Intent to Conclude an Agreement" in order to begin a sub-project immediately in situations of exceptional urgency during which formal sub-agreements may be delayed.48In the below, I will explore the most common form of sub-project agreement, the "Tripartite Sub-Project Agreement".

C
The Tripartite Sub-Project Agreement The most important instrument setting out the concrete obligations of unhcr and its implementing partners appears to be the "Tripartite Sub-Project Agreement".This Agreement concerns unhcr, the implementing partner ("the Agency") and the Host State ("the Government") and generally sets out the nature of activities, as well as administrative and financial procedures related to the implementation of sub-projects.The relation between unhcr and the Host State when it comes to managing refugee camps has been thoroughly addressed elsewhere, but it is important to note also here that unhcr's relation with the Host State is generally governed by specific "cooperation agreements" which set out the legal questions concerning the establishment of a representative presence in the territory of a State, as well as the more substantive issues of unhcr's relations with States.49 The Tripartite Sub-Project Agreement is arguably to be considered an international contract.While an agreement that is concluded between parties who have no international legal personality, i.e. ngos, will not normally be governed by international law, it is arguable that agreements of which one party is a non-state entity can be governed by international law.50When determining whether an agreement, one party of which is a non-state actor, is subject to international law, due regard must be made to the intentions of the States or international organizations.If an intention that the agreement be governed by international law is expressed in the actual agreement, these agreements should, at least in principle, be governed by international law.The idea that the intention of the parties determines which law is to govern an agreement is further supported by the principle of party autonomy which allows the parties to choose any set of rules to serve as the basis for solving disputes.51As we will see below, the clearly international character of the Agreement supports the notion that it is of an international nature, as would the inherent linkage between unhcr's partnerships and its mandate as laid out in the unhcr Statute.
The Tripartite Sub-Project Agreement includes a preamble and a number of articles, as well as three annexes, which, as emphasized in the Preamble, should be considered an essential part of the Agreement.52The Preamble furthermore restates that the nature of unhcr's participation in the sub-project is humanitarian and non-political.53The Agreement establishes conditions such as financial and accountability requirements, and also unhcr rules and procedures.It employs legal lingua such as the terms "obligations", "liability" and "arbitration".According to the Agreement, all parties also agree that they "shall" carry out a number of activities.Although there is no explicit reference as to which legal system is to govern the Agreement, a number of articles make specific reference to both national and international law.Article 6.14, for instance, concerns the implementing agency's compliance with the laws and regulations of its country of residence or operation.Moreover, as for the settlement of disputes, the Agreement refers to the United Nations Commission on International Trade Law (uncitral) Conciliation Rules54 and also states that the place of arbitration shall be Geneva and that: If the Parties cannot agree on the selection of a single arbitrator, then they may appoint each one Arbitrator who shall choose the third Arbitrator.In the event of disagreement as to the nomination of the third arbitrator, the latter shall be appointed by the Chairman of the Court of Arbitration of the International Chamber of Commerce.55These factors suggest that the Agreement is legally binding under international law.Furthermore, Article 3 deals with the duration of the agreement, while Article 8.07.1 concerns the termination of the Agreement and stipulates that "[i]f the Agency refuses or fails to prosecute any work, or separable part thereof, or violates any term, condition or requirement of this Agreement, unhcr, in consultation with the Government, may terminate this Agreement in writing with immediate effect".The Agreement also includes a clause on force majeure.56 The following sections will explore the extent to which the Agreement lays down human rights requirements and other obligations on the implementing partner.
1 Human Rights Requirements and Other Obligations Article 6 of the Tripartite Sub-Project Agreement provides that the implementing partner has a strict obligation to respect the laws of the country in which it is operating, and under Article 4 it shall further […] refrain from any conduct that that would adversely reflect on unhcr and the United Nations and shall not engage in any activity which is incompatible with the aims and objectives of the United Nations or the mandate of unhcr to ensure the protection of refugees and other persons of concern to unhcr.57 The aims and objectives of the United Nations are nevertheless not entirely clear-cut, and it is a matter of controversy whether the "purposes" of the un as contained in Article 1 of the un Charter are meant to be legally binding, or if, as Wolfrum notes, the wording is "more appropriate for political objectives rather than for legally binding obligations."58While Article 55 of the Charter specifically binds the un as a whole to promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion", it is less clear exactly which human rights are encompassed within the obligation.The un's perspective of the indivisibility of human rights might nevertheless suggest that all rights are to be encompassed.59 In the implementation of unhcr Sub-Projects, the Governments and Agencies are required to respect the relevant Guidelines related to the protection of, and assistance to, refugees.Particularly relevant in this regard are the Global Strategic Priorities (see unhcr's website at www .unhcr.org).The same website on the Refworld, Partnership Guides and Who We Help pages provides a range of information related to unhcr's principles and policies: Age, Gender, and Diversity Mainstreaming (agd), refugee women/gender equality; refugee children & adolescents, older refugees, persons of concerns with disabilities, livelihood, environment and hiv/aids etc. 63 The responsibilities placed on unhcr's implementing partners thus seem to include a very general obligation to respect unhcr's principles and policies.unhcr guidelines and handbooks are arguably one of the most influential means for unhcr to contribute to the development of international law, and may moreover be used to reaffirm or further elaborate previously accepted general or vague norms found in binding or non-binding texts.64However, a wide-ranging reference to an obligation on the part of the implementing partners to respect unhcr's policies and procedures appears limited when it comes to constituting any meaningful human rights requirements, and particularly so in light of studies suggesting that both unhcr and implementing partner staff in the field have been unaware of unhcr's protection guidelines and policies.65Despite the fact that there has been a proliferation of guidelines and a considerable increase in attention to, for example, gender-based violence in the last decade, as one recent study pinpointed, "[t]he excellent guidelines and materials produced are often left unread by those working most closely with the refugee communities and are seldom used to inform and shape programmatic responses." accessible and comprehensible guidelines are disregarded in practice, it is indeed questionable to what extent the broader references as made in Article 6 of the Agreement relating to un aims and objectives and unhcr's mandateboth under constant evolvement and interpretation -actually translate into meaningful protection.In addition, Annex A provides no further evidence of an obligation to respect more generally applicable instruments of international law, such as the un Charter or the core human rights conventions.While it employs legal terminology in many other aspects, the Agreement thus avoids explicit human rights language.By comparison, the non-binding "Framework Agreement for Operational Partnership",67 not applicable to unhcr's implementing partners under the Tripartite Sub-Project Agreement, reiterates unhcr's responsibility for "providing international protection, under the auspices of the United Nations, to refugees" and for "[…] seeking permanent solutions for the problems of refugees by assisting Governments and, subject to the approval of the Governments concerned, private Organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities".It also stresses that "unhcr is bound by its Mandate and is required to provide protection to refugees, and as a part of its protection activities to coordinate and monitor the assistance provided."68This Framework Agreement moreover includes a provision concerning nonbinding code of conducts, stating that "the Partners will be guided by the principles set down in the Code of Conduct of the International Red Cross and Red Crescent Movement and Non-Governmental Organizations".69The differences between these two agreements in the field of human rights appear manifest.

2
Responsibility and Accountability Issues Several clauses of unhcr's Tripartite Sub-Project Agreement aim at absolving unhcr from responsibility for the conduct of its implementing partners Janmyr journal of international humanitarian legal studies 5 ( 2014 when these perform services for unhcr.Article 4, a key provision, specifically states that: unhcr does not accept any liability for claims arising out of the activities performed under this Agreement, or any claims for death, bodily injury, disability, damage to property or other hazards that may be suffered by Agency or Government Personnel as a result of their work pertaining to the Sub-Project.70 Importantly, under the Agreement, it is the implementing partner and the Host State that are responsible for dealing with all claims brought against either of them by implementing partner or Host State.71unhcr is not liable to indemnify any third party in respect of any claim, debt, damage or demand arising out of the implementation of the Sub-Project -to the contrary, the Agreement stipulates that it is the implementing partner and the Host State who are responsible for dealing with all claims arising out of the acts or omissions of the personnel of the implementing partner or the Host State, even when these claims are made against unhcr and its officials or persons performing services for unhcr.Article 6, concerning assignment and subcontracting, equally provides that the implementing partner shall be "[…] fully responsible for all work and services performed by operational partners, subcontractors and suppliers, and for all acts and omissions committed by them or their employees".Article 6.13 also stipulates that the agency shall be fully responsible for all services performed by agency personnel, and that such personnel shall not be considered "in any respect" unhcr staff members or as having any other contractual link with the Office.It is clear that by including these clauses in the implementing agreements with implementing partners, unhcr seeks to avoid responsibility for the conduct of these.Below, this responsibility will be analyzed in light of the rules of international responsibility.

Generally on the System of International Responsibility
The law of international responsibility plays a fundamental role in the modern system of international law.72It is understood as the body of principles which determine when and how States and international organizations may be liable to another for breach of an international obligation.As such, the rules of international responsibility do not set forth any particular obligations but rather determine when an obligation has been breached and the legal consequences of that violation.The rules are as such "secondary" that address basic issues of responsibility and remedies available for breach of "primary" or substantive rules of international law.They establish the conditions for an act to qualify as internationally wrongful; the circumstances under which actions of officials and other actors may be attributed to the State or the international organization; general defenses to liability; and the consequences of liability.Due to the historical primacy of States in the international legal system, the law of State responsibility is the most evolved structure of international responsibility.73However, following a ten-year process, the International Law Commission adopted its Articles on the Responsibility of International Organizations (ario) in the summer of 2011.74The ilc's efforts to develop the ario have been the subject of much critical commentary by states, international organizations and scholars alike.The main criticisms have concerned the general lack of practice to support the contents of the ario rules and the ario's resemblance to the ilc's Articles on State Responsibility.75 In contrast to the latter, which referred to existing rules and largely codified customary international law, the ario were drafted without extensive practice to draw from.This is largely due to the fact that because international organizations enjoy generous grants of immunity both as institutions and for their individual agents, there are few cases where principles of responsibility have been invoked before any national or international courts.76As a result, while the ario codify some principles of responsibility that are considered customary international law, the Articles also propose a number of more novel principles, and as the ilc recognizes in its Commentary: "[t]he fact that several of the present draft articles are based on limited practice moves the border between codification and progressive development in the direction of the latter."77While no international judicial fora currently exists where international organizations can be held responsible under the ario, the ario have nevertheless been identified as a "critical new development", the effects of which have already been seen in practice.78Indeed, early drafts of ario were invoked by the European Court of Human Rights (ecthr) in the controversial Behrami case.79

B
Applying the ario to unhcr International responsibility is generally triggered following the decision that a breach of international law has occurred.80Under the ario, for example, an organization is responsible for an internationally wrongful act when conduct consisting of an action or omission is attributable to the organization and which constitutes a breach of an international obligation.81As will be explained below, the international obligations of unhcr may derive from treaty or customary international law, and it is these obligations that determine what a breach of international law is under the law of international responsibility.As explained by the arbitral tribunal in the Rainbow Warrior case: "[t]he general principles of International Law concerning State responsibility are equally applicable in the case of breach of treaty obligation […] so that any violation of a State of any obligation, of whatever origin gives rise to State responsibility."82This, then, seems to imply that a State, or, as in this case, an international organization, which is in breach of any obligation to which it is bound under Although unhcr is not a party to the Statute, there is today general acceptance that an international organization is bound by obligations arising under its constituent instrument.Instruments such as the unhcr Statute are generally considered to be of a dual international law, can be held responsible under the general principles of international responsibility.
In addition to the provisions found in the specific legal conventions pertaining to human rights and refugees, the most basic norms of international humanitarian and international human rights law are today considered part of international customary law.83While most human rights treaties contain no provision for the accession of international organizations,84 there has been an increasing recognition that international customary law binds not only states, but also, by virtue of their legal personality, international organizations.85In the Reparation for Injuries case, the icj found that the " rights and duties [of the organization] will depend upon its purposes and functions as specified or implied in its constituent documents and functions in practice".86The icj's most explicit reference to the obligations of international organizations can be found in its advisory opinion in the Interpretation of Agreement case, in which it explains that: "[i]nternational organizations are subjects of international law, and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties."87This means that unhcr is clearly bound by customary international (human rights) law.
unhcr's subordination to the un Charter entails that Charter provisions requiring the un to respect human rights, including Articles 1(3), 55, and 56, also bind unhcr.unhcr's mandate, found in the unhcr Statute,88 provides it with broader human rights obligations than the obligation to respect customary human rights law.89The Statute evidences that unhcr has been granted a unique, almost supranational, role by the international community; it is specifically mandated to provide "international protection" to refugees and to seek "permanent solutions for the problem of refugees".90An integral link seems to exist between unhcr's international protection mandate and human rights, and the Preamble to the 1951 Refugee Convention aptly summarizes the grand objective of international protection: "to assure refugees the widest possible exercise of … fundamental rights and freedoms" which all "human beings [should] enjoy … without discrimination".unhcr's Statute arguably also binds the Agency to provide international protection not only in a passive sense, but also actively by for instance intervening vis-à-vis governments.As former High Commissioner Schnyder explained in 1965: "… international protection may be defined as the power, conferred by the international community to an international body, to take all necessary measures to replace the national protection of which refugees are deprived, because of their very condition."91As such, international protection seems to a large extent based on the notion of surrogacy in which unhcr steps in to provide the protection which a refugee's own State cannot or will not provide.92

Attribution of Conduct by ngo Implementing Partners to unhcr
Under the ario, an international organization is responsible for an internationally wrongful act when conduct consisting of an action or omission is attributable to the organization and which constitutes a breach of an international obligation.93Article 6(1) of the ario specifically provides that: "[t]he conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization."As detailed in the above, unhcr seeks to avoid liability for the conduct of its implementing partners by including certain clauses in its agreements with implementing partners.But do these agreements hold water when analyzed through the lens of the ilc's work on the responsibility of international organizations?Under what circumstances should the acts and omissions of unhcr's implementing partners be attributed to unhcr?The key questions appear to be whether or not these actors are to be considered unhcr "agents", and whether or not they are performing unhcr "functions".It is precisely these issues that I will discuss below, before exploring the related issue of contractual clauses seeking to avoid responsibility.

1
unhcr "Agents" and Relation to unhcr "Functions" The ilc defines the term "agent" as "an official or other person or entity, other than an organ, who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts".94It is arguable that this is precisely what unhcr's implementing partners do -through specific sub-contracting agreements, they are charged by unhcr to perform specific functions.Even though it is often referred to as a "partnership", the relationship between unhcr and the ngo implementing partners is essentially an "unequal, contractor and service-provider relationship".95Importantly, in drafting the definition of "agent", the ilc relied on statements made by the International Court of Justice (icj) that advocated that the term must be understood "in the most liberal sense" and that the essence of the matter lies not in the agent's administrative position, "but in the nature of their mission".96 This broad understanding of the term "agent" in the ario has been criticized by several international organizations.While unhcr does not appear to have submitted any comments regarding the ario to the ilc, international organizations such as the International Labour Organization (ilo), International Monetary Fund (imf) and the United Nations Educational, Scientific and Cultural Organization (unesco) voiced concern that the wide inclusiveness of the key terms of Articles 2 and 6 may entail that conduct too easily can be attributed to international organizations.97These organizations suggested that it would be appropriate to add some qualifications to the definition of the term "agent".The imf, for instance, considered that only acts of officials performed in their official capacity could be attributable to imf.98In any manner, it is arguable that the mere existence of some sort of agreement between unhcr and an implementing partner should suffice for the establishment of the agency link, primarily because such agreements generally confer power upon an entity to act "on behalf" of unhcr.99 The other decisive factor under the ario appears to be whether or not the implementing partner has been charged by unhcr with carrying out, or helping to carry out, one of unhcr's functions.Article 6(2) of the ario specifies that the "rules of the organization" shall apply in the determination of the functions of its organs and agents.100 The expression "rules of the organisation" in the ario means "the constituent instruments, decisions, resolutions and other acts of the organisation adopted in accordance with those instruments and established practice of the organisation".101Through these rules, unhcr establishes which functions are entrusted to each organ and agent.The ilc Commentary particularly notes that the rules of the organization may include instruments such as agreements concluded by the organization with third parties.102 In fact, given that the implementing agreements concluded by unhcr and its implementing partners allocate functions to unhcr agents in accordance with the constituent instruments of the organization (the unhcr Statute), it is arguable that these constitute one of the clearest forms of unhcr's rules of the organization.Thus not only does the mere showing of a contractual link between unhcr and the implementing ngo suffice to qualify the ngo as a unhcr "agent", the very fact that unhcr denotes these ngos as "implementing partners" indicates that these are, in fact, implementing unhcr functions.Accordingly, under Article 6, once it has been established that the ngo is a unhcr "agent", there is no requirement to prove that unhcr effectively controls each and every instance of conduct.Rather, attribution of conduct on the basis of this link encompasses all conduct of the agent in official capacity when this conduct amounts to an internationally wrongful act, even if this conduct happens to be in excess of authority or contravention of instructions.Importantly, when unhcr delegates certain of its functions to an implementing ngo, the conduct of the sub-contractor, when this amounts to an internationally wrongful act, will be attributable to unhcr irrespective of whether or not unhcr's mandate explicitly permits it to delegate these functions.As the ilc specifies, "[i]t may be held that, when practice develops in a way that is not consistent with the constituent instrument, the organization should not necessarily be exempt from responsibility in the case of conduct that stretches beyond the organization's competence."103 2 Specifically on Contractual Clauses Seeking to Avoid Responsibility In practice, many agreements concluded by unhcr and its ngo implementing partners include clauses stipulating that the ngo will not be considered an agent or member of staff of the organization.As I explained in the above, unhcr's model "Tripartite Sub-Project Agreement", for instance, specifically stipulates that the implementing Agency shall be fully responsible for all services performed by Agency personnel, and that such personnel "shall not be considered in any respect" unhcr staff members or as having any other contractual link with the Office.unhcr is not alone in its attempts to avoid liability for the conduct of those to whom it sub-contracts.During the ario drafting process, unesco expressed the opinion that attribution should be precluded when the relations between an international organization and a private contractor are governed by a contract that includes a clause excluding the possibility that the contractor "be considered as an agent or member of the staff of unesco".It specifically argued that: unesco contractors may perform very different types of operational activities (including technical assistance) under fee contracts and consultant contracts.Although the same types of activity could be carried out by unesco officials, in the case of contractors unesco is of the view that acts performed by the latter may not be considered as acts of the organization, since the rules of the organization clearly exclude this possibility.Furthermore, the contracts in question only impose on contractors an obligation of result (for instance, the execution of a project in the field), while the organization has no direction or control over their actions nor may it exercise disciplinary powers on them.104According to unesco, the reason lies in the inclusion into such contracts of clauses according to which "[n]either the contractor, nor anyone whom the contractor employs to carry out the work is to be considered as an agent or member of the staff of unesco […]."105Thus, in the view of unesco, despite sub-contracting functions to private actors, acts committed by these private actors would not be attributable to the Organization simply because the rules of the organization, i.e. the contract as such, would exclude the unesco from responsibility for wrongful acts of private actors acting on its account.
Responding to the unesco observations, the Special Rapporteur argued that: In order to establish attribution when an international organization acts through a person or entity that is not an organ […] the decisive factor appears to be whether or not the person or entity has been charged by an organ of the international organization with carrying out, or helping to carry out, one of the functions of that organization.106 In his view, the practice of including clauses in contracts between international organizations and private sub-contractors stipulating that the subcontractor not be considered an agent or member of staff of the organization does not dispose of the question of attribution under international law.107Importantly, "this type of clause cannot exclude the possibility that, because of factual circumstances, the conduct of the private contractor would nevertheless be attributed to the organization under international law."108It thus appears that, in the Special Rapporteur's view, contractual clauses such as those presented above cannot result in any legal effect in the international legal order.While such clauses may be seen as significant in terms of the internal legal order of an international organization, from an international law perspective, they may be seen as irrelevant.As scholars such as Verdirame have noted, seen from the perspective of advancing un accountability, the solution adopted by the ilc is wholly appropriate.109

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Circumstances Precluding Wrongfulness Attribution of conduct does not always entail an engagement of responsibility.The international law of responsibility has developed a system of "defenses" for violations of the law, known as circumstances precluding wrongfulness.Accordingly, if a defense is successfully relied upon by unhcr, the conduct in question is no longer wrongful in character.Articles 20-27 of the ario, containing defences of consent, self-defence, countermeasures, force majeure, distress, necessity and compliance with peremptory norms, draw largely on the corresponding articles on State responsibility.110Perhaps the most frequently invoked defence with regard to international organizations is force majeure, which relates to the "occurrence of an irresistible force or an unforeseeable event, beyond the control of the organization".111This would basically mean that in circumstances where it would be materially impossible for unhcr to perform a certain obligation, the Organization may be precluded from wrongfulness under these limited conditions.However, it could be argued that the threshold for a successful invocation of force majeure with regard to an organization such as unhcr is higher due to the very nature of unhcr's work in emergencies and in the context of other unforeseen events.Indeed, it appears only reasonable that unhcr is expected to do all in its power to prevent human rights violations in its operations.

Concluding Remarks: Towards New Implementing Partnerships
This article has argued that acts and omissions of unhcr's implementing partners may be attributable to unhcr under ario Article 6 and may as such incur the international responsibility of unhcr for violations of international human rights law.unhcr is currently reviewing its framework for implementing with partners, and this offers a unique opportunity for unhcr to modify its agreements to reflect recent legal developments and to clarify its relationship with these ngos.112According to a recent status update regarding the new framework, future agreements will include a requirement that all actors commit to humanitarian principles, non-discrimination of refugees and other persons of concern, respect unhcr's mandate, and, interestingly, compliance with the un Security Council's resolutions relating to terrorism and in particular the financing of terrorism.113This is indeed one step forward, but the prospect of being internationally responsible for certain conduct of its implementing partners should induce unhcr to even closer clarify obligations and responsibilities.This article contends that there is an immediate need for unhcr to ensure that any contract entered into clarifies the real nature of the link existing between the parties and explicitly defines the respective roles and responsibilities of unhcr and the implementing partner.Future agreements specifically need to clarify both the international human rights standards and internal unhcr standards by which unhcr's implementing partners need to abide.Considering the vast amount of unhcr directives, guidelines and handbooks available, and considering how the implementing agreement is formulated today, it seems difficult for unhcr's implementing partners to fully comprehend to which rules they are bound.
The impact of the ario may also be evident in unhcr's selection and administration of its implementing partners.unhcr's new framework for implementing with partners establishes an Implementing Partner Management Service, in addition to a relatively new July 2013 Policy on Selection and Retention of Partners.114unhcr has previously acknowledged that its implementing arrangements have "largely evolved as a result of trial and error",115 and its attempts to come to terms with flaws in the implementing arrangements were in 2010 criticized by un oios.In 2010, it issued a report on unhcr's relationship with its implementing partners, with the objective to "assess the adequacy of unhcr's policies for the establishment of an effective and efficient partnership with ips".116Concluding that the "management and monitoring of relationships with implementing partners need to be improved", the Report specifically found that, despite the fact that 12 evaluations of partnerships with ngos had been conducted by unhcr between 1994 and 2007, there was generally an absence of mechanisms to collect and disseminate information on unhcr's relationship with its implementing partners.117 The solution provided by the ario highlights the importance of regulating the conduct of unhcr's implementing partners more closely and establishing procedural guidelines for the follow-up of cases of misconduct and the repercussions to follow if the implementing partner commits or is alleged to have committed an act amounting to an internationally wrongful act.Implementing agreements should thus also include rights of access for unhcr oversight bodies and provisions for monitoring of conduct as well as the follow up of identified misconduct.unhcr's Inspector General's Office (igo) has long lacked authority to investigate unhcr's implementing partners suspected of misconduct and unhcr has not had any mechanism for ensuring that the implementing partners who have not performed are excluded from future agreements.118Consequently, cases of misconduct by unhcr's implementing partners brought to the attention of igo have often been referred to the implementing partner's headquarters.As stated by unhcr at the Pre-Excom Consultations with ngos in 2003, unhcr "investigates allegations against its staff and accepts that it is the ngo's responsibility to investigate complaints with respect to their own employees".119If we accept that unhcr is responsible for the conduct of its sub-contractors, it should rather strengthen its supervisory mechanisms accordingly.

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See generally unhcr and Save the Children, 'Note for Implementing an Operational Partners on Sexual Violence and Exploitation: The Experiences of Refugee Children in Guinea, Liberia and Sierra Leone: Based on Initial Findings and Recommendations from Assessment Mission 22 Oct.-30 Nov. 2001' , 27 February 2002.See also un Secretary-General, supra note 5.The lack of oversight of unhcr and ngos with regard to serious human rights issues has also been explored in Human Rights Watch, 'Trapped by Inequality: Bhutanese Refugee Women in Nepal' , Vol. 15, No. 8(C), September, 2003.9 G. Verdirame and B. Harrell-Bond, Rights in Exile: Janus-faced Humanitarianism (2005), at 137-138.
In Uganda in 2008 alone, unhcr administered 58 sub-agreements, a situation which attracted criticism from the un Office of Internal Oversight, precisely for being "difficult to manage".38 Janmyr journal of international humanitarian legal studies 5 (2014) 42-69 39 See D. Sarooshi, The United Nations And The Development Of Collective Security, The Delegation By The un Security Council of its Chapter vii Powers (1999); unhcr, Partnership: An Operations Management Handbook for unhcr's Partners (2009), at 30; 89.40 See Articles 10 and 12 of the unhcr Statute, supra note 1. 41 L.W. Holborn, Refugees: A Problem of Our Time: The work of the United Nations High Commissioner for Refugees 1951-1972 (1975), Vol. 1 at 88-9.See also unhcr, supra note 39, at 9. 42 This interpretation is also supported by Väyrynen, who argues that "[…] originally, the High Commissioner was primarily supposed to be a foundation that would collect and redistribute funds to organizations, mostly private ones, working with the refugees in the field".See R. Väyrynen, 'Funding Dilemmas in Refugee Assistance: Political Interests and Institutional Reforms in unhcr' , 35 International Migration Review 134 (2001), at 150.