United Nations Peace Operations and Human Rights

Normativity and Compliance

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Author: Sylvia Maus
In United Nations Peace Operations and Human Rights: Normativity and Compliance Sylvia Maus offers a comprehensive account of the human rights obligations of United Nations peace operations with a dual focus on the applicability and the content of UN peace operations’ human rights obligations. Selected case studies show a triad of human rights gaps: a protection gap, an accountability gap and a remedy gap.

Going further than purely legal studies on the subject, Maus makes use of international relations theory and addresses considerations of reputation and legitimacy as reasons for (non-)compliance with human rights by the UN. Based on this interdisciplinary approach, she convincingly proposes ways for enhancing human rights compliance in UN peace operations.

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Sylvia Maus, Dr. jur. (2018), Technische Universität Dresden, is a post-doctoral researcher and scientific coordinator at the UNESCO Chair in International Relations. She has published several articles and book chapters on UN peace operations, human rights, sustainable development and culture, and compliance with international law.
Acknowledgements
List of Illustrations
List of Abbreviations

Introduction

1 Human Rights in UN Peace Operations: the Institutional Perspective
I United Nations Peace Operations
 1 Definition, Legal Basis and Status
 2 A (short) History of Peace Operations
 3 Peacekeeping – Peacebuilding – Peace Enforcement
 4 Relevant Actors Relating to Human Rights in Peacekeeping Operations

II The Relationship between Human Rights and Peace
 1 The Point of Departure: Human Rights and Peace as Two Distinct Fields
 2 An Ever-Closer Union: Growing Interrelatedness between Human Rights and Peace

III Human Rights in UN Peacekeeping Operations
 1 Security Council: Strategic Framework for Human Rights in Peacekeeping Operations
 2 Human Rights in Secretary-General Reports on Peace Operations: Doctrine
 3 Department of Peace Operations: Operationalisation and Management
 4 Office of the High Commissioner of Human Rights: Implementation in the Field
 5 Critical Evaluation: Framework, Doctrine, Implementation

2 Human Rights Obligations of UN Peace Operations: the Legal Framework
I Obligations under General International Law
 1 The UN as a Bearer of Rights and Duties under International Law
 2 Obligations Arising from International Human Rights Treaties
 3 Obligations Arising from Customary International Law
 4 Obligations Arising from General Principles of Law
 5 Result

II The Charter as Constituent Treaty of the UN
 1 Programmatic Values or Binding Obligations?
 2 The Purpose of Promoting Human Rights
 3 Interpretation of the Charter by Way of Subsequent Practice
 4 Result

III Obligations Arising from Unilateral Acts by the UN
 1 Internal Law
 2 Unilateral Declarations
 3 Result

IV Stumbling Blocs: the “special status” of the Security Council
 1 The Security Council as a Political Organ: Legibus Solutus?
 2 Limitations under Article 103 UN Charter
 3 Derogation from International Law When Acting under Chapter vii
 4 Result

V Obligations of Peace Operations
 1 Human Rights Obligations in Mandates
 2 Extraterritorial Application of Human Rights Treaties
 3 Human Rights Obligations Derived from Peace Agreements
 4 The Role of Human Rights Obligations of the Host State
 5 Self-Commitment by the Peace Operation
VI Findings

3 Consequences of Human Rights Violations in Peace Operations
I Responsibility for Human Rights Violations
 1 Attribution of Conduct
 2 Circumstances Precluding Wrongfulness
 3 Legal Consequences of an Internationally Wrongful Act: Responsibility
 4 Invocation of Responsibility

II Accountability for Violations of International Human Rights Law
 1 Internal Mechanisms
 2 Litigation

III No Responsibility, Little Accountability
4 Human Rights in UN Peace Operations Practice
I Human Rights in the United Nations Mission in Kosovo
 1 About the Mission
 2 unmik Human Rights Mandate and Structures
 3 Potential Human Rights Violations
 4 Reactions and (lack of) Consequences
 5 Results

II Human Rights in the United Nations Transitional Administration in East Timor
 1 About the Mission
 2 untaet Human Rights Mandate and Structure
 3 Potential Human Rights Violations
 4 Reactions and Consequences
 5 Results

III Human Rights in the United Nations Stabilization Mission in Haiti
 1 About the Mission
 2 minustah Human Rights Mandate and Structure
 3 Potential Human Rights Violations
 4 Reactions and Consequences
 5 Results

IV The Three Gaps
 1 The Protection Gap
 2 The Accountability Gap
 3 The Remedy Gap

5 Considerations beyond Lex Lata
I The Meaning of Compliance

II Explaining (non-)Compliance

 1 Enforcement Theories
 1 Liberal Theories
 1 Constructivist Theories
 1 The Particular Case of Human Rights Compliance

III UN Compliance
 1 Reputation as a Factor of IO Compliance
 2 Member States’ Interest in Compliance during and after Peace Operations
 3 The UN’s Reputation in the Context of Peace Operations
 4 Assessing the Reputational Impact of Human Rights Violations in Peace Operations

IV A Case for Discourse

Findings and Conclusions
I Findings
 1 The Institutional Framework
 2 The Legal Framework
 3 Responsibility and Accountability
 4 Practice: the Protection Gap, the Accountability Gap, and the Remedy Gap
 5 Explaining (non-)Compliance

II Conclusions and the Way Ahead
 1 Norm Clarification through Mandates Issued by the Security Council
 2 A Peacekeeping Bill of Rights 355
 3 Secretariat Policy Documents
 4 Courts and Quasi-Juridical Bodies
 5 Non-State Actors and the Academic Community

Bibliography
Documents
Decisions of International Courts and Tribunals
Index

Scholars and researchers in the field of international law, in particular human rights law and international institutional law, as well as persons working on human rights in UN missions.