299 / 532
283
ARE INTERNATIONAL ORGANISATIONS BOUND BY INTERNATIONAL HUMAN RIGHTS…
The idea behind this conception is simply that States shall not be allowed to
escape their (human rights) obligations by creating and/or acting through international
organisations. In this regard, the words of the European Court of Human Rights in the
case
Waite and Kennedy v. Germany
are well known: „
Where States establish international
organisations in order to pursue or strengthen their cooperation in certain fields of activities,
and where they attribute to these organisations certain competences and accord them
immunities, there may be implications as to the protection of fundamental rights. It would
be incompatible with the purpose and object of the Convention, however, if the Contracting
States were thereby absolved from their responsibility under the Convention in relation to
the field of activity covered by such attribution. It should be recalled that the Convention
is intended to guarantee not theoretical or illusory rights, but rights that are practical and
effective.“
70
The idea that an international organisation must not act in contrary to
its Member States’ obligations, to which the Member States remain bound despite
having vested parts of their powers to international organisation, was confirmed for
example by the Committee on Economic, Social and Cultural Rights with regard
to right to water
71
and is recognized also in literature
72
. Why is this relevant here?
It could be argued that by transferring powers to an international organisation
respective human rights obligations are also “transferred”, i.e. the international
organisation “succeeds” into the obligations of its Member States. Human rights
treaties to whichMembers States are party would become a source of the organisations’
own obligations. However, in this regard I agree with
Naert
, who argues that current
international law seems to offer
no
sufficient basis for such a conclusion.
73
Indeed,
binding international organisations to contractual obligations of their Member States
would run contrary to the relative nature of treaties, and practice also shows that
such cases are more than rare. Moreover, the idea of precluding the circumvention
70
ECtHR,
Waite and Kennedy v. Germany
, Application no. 26083/94, judgment of 18 February 1999,
para. 67. See also ECtHR judgment
Matthews v. United Kingdom
from 18 February 1999, para. 32,
stating that a State is responsible for securing rights that derive from its treaty commitments.
71
Committee on Economic, Social and Cultural Rights (CESCR), General Comment 15: The right to
water, U.N. Doc. E/C.12/2002/11 (2002), para. 36:
“States parties should ensure that their actions as
members of international organizations take due account of the right to water. Accordingly, States parties
that are members of international financial institutions, notably the International Monetary Fund, the
World Bank, and regional development banks, should take steps to ensure that the right to water is taken into
account in their lending policies, credit agreements and other international measures.”
72
McCORQUODALE, Robert.
International Organisation and International Human Rights Law: One
Giant Leap for Humankind. Supra
note 2, pp. 156
et seq.
73
NAERT, Frederik. Binding international organisations to member state treaties or responsibility of
member states for their own actions in the framework 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. 129 – 168; but see
Schermers
, who argues
the opposite with confidence by saying that
„one may safely submit that an international organization
is bound to all international treaties to which all its members States were parties when the organization
was established”
(SCHERMERS, Henry G. The Legal Basis of International Organization Action.
In: DUPUY, René Jean.
Manuel sur les organisations internationales: A handbook on international
organizations
. 2. éd. Boston: M. Nijhoff, 1998, p. 403).