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MARTIN FAIX
CYIL 5 ȍ2014Ȏ
the EU,
57
is party to any human rights treaty. Moreover, most such conventions are
not open to the participation of international organisations. Therefore international
custom, general principles of international law and unilateral acts will be explored as
possible sources of human rights obligations.
58
3.1 International treaties
To address the issue of human rights obligations stemming from international
agreements appears,
prima facie
, to be a simple undertaking. Compared to international
custom (and general principles) it can be easily established whether such obligations
exist, how they came into existence. Even the identification of their scope of application
appears to be easier, and the control of their implementation is often vested into hands
of (sometimes highly) effective mechanisms. But as usual things are not as easy as they
appear at first sight.
It can be argued that where international organisations carry out functions
which touch upon human rights in any way, then it is certainly
desirable
to bind
international organisations contractually, generally because of the advantages which
treaties, compared to other sources of international law, offer and specifically because
treaties are simply the dominant source of international human rights law. The
practical problem that occurs is that a vast majority of multilateral treaties in this
area, including the major ones, are only open for accession and ratification by States.
However, according to
Poretto / Vité,
59
this is too formalistic an approach, which
should not take precedence over the interest of adhering international organisations
to such treaties. However, such considerations have to be refused (regardless of the
fact that, to my understanding,
Poretto
and
Vité
limit their conclusions to cases where
human rights agreements do not contain any express rule on accession of international
organisations and the international organisation exercises State functions relating to
territorial administration).
60
As
Pellet
indicates, in international law even human
rights are protected by legal norms, and legal norms are simply a result of formal
processes whose main function is to ensure their legality.
61
Therefore, the core of
57
The European Union is signatory to the UN Convention on the rights of persons with disabilities.
We may also mention the ongoing process of accession of the EU to the European Convention for
the Protection of Human Rights and Fundamental Freedoms (ECHR). WOUTERS, Jan, BREMS,
Eva, SMIS, Stefaan, SCHMITT, Pierre. Introductory Remarks. In: Jan Wouters, Eva Brems, Stefaan
Smis and Pierre Schmitt (eds.).
Accountability for human rights violations by international organisations
.
Antwerp: Intersentia, 2010, p. 5.
58
One can also think of further sources of human rights obligations that could be discussed, such as
decisions of international tribunals, or decisions of an organisation, to which another organisation
is a member (e.g. decision of FAO, to which the EU is a member since 1991), or even obligations
resulting from succession of international organisations. Such cases are, however, very rare and thus not
of pertinent relevance as sources of human rights obligations of international organisations.
59
PORRETTO, Gabriele, VITÉ, Sylvain.
The application of international humanitarian law and human
rights law to international organisations
. No. 1. Geneve: University Center for International Humanitarian
Law, 2006, Research Paper Series, pp. 41-42.
60
Ibid.
61
PELLET, Allain. Human Rightism and International law.
Supra
note 7, p. 5.