303 / 532
287
ARE INTERNATIONAL ORGANISATIONS BOUND BY INTERNATIONAL HUMAN RIGHTS…
Hence it is not doubtful anymore whether international organisations have
obligations under customary human rights law but rather what their scope and content
are. In addition, the question could be raised whether international organisations with
no specific mandate in the area of human rights also have
positive
human rights
obligations, such as to protect or report on human rights.
90
However, those questions
can hardly be answered in general terms simply because of large differences existing
between international organisations as to their competences, functions, as the debate
in relation to international development and financial organisations (UNDP, IMF,
IBRD or the World Bank),
91
for example, shows. Going in depth into this discussion
would not only go beyond the scope of this contribution but is also not necessary,
as a significant body of literature exploring the topic of customary obligations under
human rights law exists.
92
3.3 Human rights as general principles of international law
In 1977
Bleckmann
pointed out the existence of a part of international legal
literature and jurisprudence requiring equal treatment of states and international
organisations in international law and assuming that in areas in which no specific
treaty rules applicable to international organisations exist (such as in the area
of treaty law, diplomatic protection or compensation for damages) but practice
in this regard is a normal case in the international community, then there is no
other option than to apply customary international rules.
93
At the same time he
assumed that the basis of international custom is often formed by general principles
of international law, such as good faith, which are also applicable to international
organisations simply because they are based on equity and thus must apply (when
the circumstances are comparable) to both states and international organisations
equally.
94
Moreover, international custom and general principles of law belong in the
90
WOUTERS, Jan, BREMS, Eva, SMIS, Stefaan, SCHMITT, Pierre. Introductory Remarks.
Supra
note 58, pp. 7-10; with regard to contractual obligations see also above.
91
Cf.
BRADLOW, Daniel D. The World Bank, the IMF, and human rights.
Transnational law &
contemporary problems
. 1996, vol. 6, no. 1, pp. 47 – 90; SKOGLY, Sigrun I.
The human rights obligations
of the World Bank and the International Monetary Fund
. London: Cavendish: Cavendish Publishers,
2001; BENEDEK, Wolfgang, Koen DE FEYTER a Fabrizio MARRELLA.
Economic globalisation and
human rights
. New York: Cambridge University Press, 2007.
92
Cf.
MERON, Theodor.
The humanization of International Law
.
Supra
note 4, pp. 357
et seq
.; DE
SCHUTTER, Olivier. Human Rights and the Rise of International Organizations.
Supra
note 64,
pp. 68-71; CLAPHAM, Andrew.
Human rights obligations of non-state actors
.
Supra
note 22, p. 85-91.
See also very thought-provoking contribution to this debate by
Simma
and
Alston
, who speak of the
emergence of „hard“ customary human rights law but plead against the tendency of stripping international
custom of the traditional practice requirement for the sake of human rights idealism (SIMMA, Bruno,
ALSTON, Philip. The Sources of Human Rights Law: Custom,
jus cogens
, and General Principles.
Australian Yearbook of International Law
. 1988-1989, vol. 12, pp. 82-108. esp. p. 107).
93
BLECKMANN, Albert. Zur Verbindlichkeit des allgemeinen Völkerrechts für Internationale
Organisationen.
Supra
note 82, p. 108.
94
Ibid
.