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ARE INTERNATIONAL ORGANISATIONS BOUND BY INTERNATIONAL HUMAN RIGHTS…
look at obligations resulting from treaties concluded by Member States), customary
international law, general principles of international law and finally unilateral acts.
The article will conclude by arguing that the current international law system not
only allows but actually requires answering the key question of this contribution in
the affirmative.
1.2 The “phenomenon” of human rights permeating international law
An attempt to analyse a question of
legal
character, such as the key question of
this contribution is, would also imply a legal character of the argumentation used.
Thus starting with describing human rights and their legalization with the extra-
legal term of a “phenomenon” may not appear at first sight a good idea and a proper
approach. Moreover, one may recall
John Dugard’s
words on the different perspectives
which academic and government international lawyers have on human rights – the
first ones being excited about the fundamental changes which human rights brought
to almost all areas of international law, the others remembering that state practice
still matters, that state sovereignty did not vanish and that reality is still far from the
world as seen through the ideals-coloured glasses of many human rights lawyers.
2
Besides it appears as a barely accomplishable undertaking to try to capture in few
paragraphs the process of how human rights has permeated international law.
Despite all this, I am convinced that it is not only necessary but is necessary
at
this stage
to do so. The reason is simple. Before presenting the legal arguments, it is the
exceptionality of human rights (and subsequently that of international organisations)
in international law, especially against the background of the traditional understanding
of international law, which necessitates providing a certain background and basis,
which I consider to be decisive for an understanding of the arguments in favour of
binding international organisations to human rights law.
It certainly might be a subject for discussion in what forms, ways and to what
extent human rights has influenced international law in the past decades; however it
is beyond any doubt (and it has to be understood) that human rights cannot be
considered as not being (also) a legal concept which continues to significantly
influence the system of international law
3
as such. It does so by shaping human rights
as hard law norms, by formulating human rights claims as legal claims, and generally
by pursuing human rights objectives through legal mechanisms,
4
reaching from the
2
DUGARD, John. The Future of International Law: A Human Rights Perspective – With Some
Comments on the Leiden School of International Law.
Leiden Journal of International Law
. 2007,
vol. 20, no. 04, p. 731.
3
See especially Theodor Meron’s monograph
The Humanization of International Law
(MERON, Theodor.
The humanization of international law
. Boston: Martinus Nijhoff, 2006), but also KAMMINGA, Menno
T., SCHEININ, Martin.
The impact of human rights law on general international law
. New York: Oxford
University Press, 2009.
4
DONNELLY, Jack. The Virtues of Legalization. In MECKLED-GARCÍA, Saladin, CALI, Basąk
(eds.).
The legalization of human rights: multidisciplinary perspectives on human rights and human rights
law
. New York: Routledge, 2006, p. 67.