CYIL 2015

178

MARTIN FAIX

CYIL 6 ȍ2015Ȏ

The fate of proposals to insert such a catalogue, for example in the UN Charter or

the founding treaties of the European Union (

Treaty establishing a Constitution for

Europe

), however, shows that States are rather reluctant to include human rights

provisions in the documents establishing international organisations. Nevertheless,

even if the founding treaty does not contain a human rights catalogue, it may

serve as a legal basis for creation of a system under which the responsibility of the

organisation for violations of individual rights can be realized, and thus the right to

reparation derived and made actionable. This is, for example, the case of Article 340

of the Treaty on the Functioning of the European Union (TFEU),

providing

for an obligation to grant reparation

in cases of extra-contractual liability of

the European Union. The founding treaty of the EU is interesting also from the

perspective that it contains a provision (Article 6 para. 3 TFEU) through which the

ECHR became a part of EU law as one of the sources of human rights in the form

of the EU’s general principles. With regard to the right to reparation, a thought-

provoking question arises, namely whether this right as guaranteed under the ECHR

is deprived of its original parameters by entering through the door of Article 6 para. 3

TFEU, or to what extent Article 6 TFEU causes changes to the parameters of its

application within the framework of the EU’s legal system. I shall not explore this

question in any detail, as it exceeds the scope of this contribution.

Besides the competence to enter into international agreements, international

organisations regularly also possess the competence to produce unilateral acts. Such

norms may create obligations with different addressees (internal instructions

binding organisations’ organs,

decisions binding to its Member States, obligations

of the organisation in external relations), but also different beneficiaries. As much

as international organisations possess the capacity to issue such acts, be it with

purely internal effect or also external effect, whether the addressees are the Member

States or third States, unilateral acts can be considered as a source of their human

rights obligations and, consequently, also the obligation to provide reparation.

For example, the United Nations has developed, in the area of peacekeeping

operations, internal liability rules. Originally they had the form of internal guidelines

applicable in negotiations for a compromise settlement; later they evolved into legally

binding provisions with external effect, forming a basis from which a victim’s right

to reparation can be derived.

However, one may agree with

Schmalenbach

, who

Article 340 TFEU provides that “

the Union shall, in accordance with the general principles common to

the laws of the Member States, make good any damage caused by its institutions or by its servants in the

performance of their duties

.”

SARVARIAN, Arman. The Accession of the EU to the ECHR and the Law of International

Responsibility. In: KOSTA, Vasiliki, SKOUTARIS, Nikos, TZEVELEKOS, Vassilis (eds.),

The EU

Accession to the ECHR.

Oxford: Hart Publishing, 2014, pp. 87-105, at p. 91.

For example the

UN-Secretary General’s Bulletin on Observance by United Nations Forces of International

Humanitarian Law

(UN Doc. ST/SGB/1999/13 of 6 August 1999).

SCHMALENBACH, Kirsten. Third Party Liability of International Organizations: A Study on Claim