297 / 532
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ARE INTERNATIONAL ORGANISATIONS BOUND BY INTERNATIONAL HUMAN RIGHTS…
international rules governing the law of treaties, and less consent as the main feature
of their binding nature, should not be jeopardised or annulled by the
logic
or
desire
to
adhere international institutions to human rights law.
62
I agree that exactly because
of the continuing trends of Institutionalisation and Humanisation it is plausible
and desirable
63
to open international human rights treaties to the accession and
ratification of international organisations. But should the State parties of a human
rights treaty decide to broaden the extent of its subjective scope, there is no reason
why they should not do it in accordance with the applicable rules of international
treaties law, just as is the case with Protocol No. 14 to the European Convention
of Human Rights (1 June 2010). On the basis of this Protocol, the ECHR
64
was
amended, providing now explicitly for the possibility of accession of the European
Union to the ECHR.
That leads me to another idea which is quite common in international literature:
the obstacles in adhering international organisations to human rights treaties are
seen to be in practice largely of a “political (or even psychological)”
65
nature. There
is certainly no doubt about the ability and capacity of international organisations
to enter into contractual relations, and international institutions also often play a
crucial role in the promotion, drafting and conclusion of human rights treaties.
So far, so good. But can application of human rights treaties be extended also to
international organisations?
In my opinion there is no reason why this could not be the case; but one caveat
applies. As explained above, despite the fact that international organisations typically
possess (implicitly derived or explicitly granted) treaty-making capacity, this capacity
must be exercised with due regard to the
principle of speciality
, i.e. in accordance
with the material competences of the particular international organisation. The
principle of speciality reflects the still valid conception and nature of international
organisations as forms of international cooperation which are not equal to states,
62
I admit that dogmatic application of the VCLT in respect of human rights treaties would not allow
proper reflection of the specific character of human rights (e.g. the specific character of human rights
treaties, which go beyond the traditional reciprocal relationship between contracting parties as they
have third-party beneficiaries); but, as already explained above, human rights law (and human rights
treaties) does not amount to a special regime operating completely outside of the scope of general
international law and especially its very foundations. Cf. KAMMINGA, Menno T., SCHEININ,
Martin.
The impact of human rights law on general international law. Supra
note 4, pp. 25-26.
63
Also
De Schutter
takes a very positive approach in this regard, when he sees that the current situation of
human rights treaties not allowing for accession of international organisations may change rapidly in the
years to come (DE SCHUTTER, Olivier. Human Rights and the Rise of International Organisations.
In: Jan Wouters, Eva Brems, Stefaan Smis and Pierre Schmitt (eds.).
Accountability for human rights
violations by international organisations
. Antwerp: Intersentia, 2010, pp. 51-128, esp. pp. 110-119).
64
European Convention for the Protection of Human Rights and Fundamental Freedoms, Roma,
4 November 1950.
65
KLEIN, Pierre.
La responsabilité des organisations internationales dans les ordres juridiques internes et en
droit des gens.
Bruxelles: Bruylant, 1998, p. 318; NAERT, Frederik.
International Law Aspects of the EU’s
Security and Defence Policy
.
Supra
note 37, p. 383.