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MARTIN FAIX
CYIL 5 ȍ2014Ȏ
obligations stemming from human rights law. Among the sources of such obligations can
be international treaties concluded by the international organisations, even though this is
a very rarely the case in the current practice and thus merely a
de lege ferenda
issue. Human
rights contractual obligations resulting from treaties concluded by
Member States
are not
to be considered as binding also on international organisations, as in my understanding
there is not sufficient legal basis in current international law for such a conclusion.
The risk of Member States evading their obligations by acting through international
organisations can be mitigated by manners of Member States bearing responsibility for
their own activities in the framework of the international organisation.
Of considerable importance as a source of human rights obligations is customary
international law, at least to the extent that human rights can be considered to
have gained the status of customary rules of international law (or even status of
jus
cogens
). With regard to general principles of international law the situation is especially
unclear concerning the question of whether human rights can be considered as general
principles and, if yes, which of them. On the other hand, at least fundamental guarantees
of humanity constitute a part of general international law as general principles, and
there is no reason why international organisations should escape their application.
International organisations may be also bound by unilateral acts, which consequently
are to be considered as possible sources of human rights. Their effect may be restricted
to the internal sphere of the particular organisation or may extend to the sphere of
its external relations, even though a strict distinction in this regard is hardly possible.
With regard to all sources discussed, the caveat of “principle of speciality” applies, i.e.
human rights norms are binding (or international organisations can bind themselves
to human rights) to an extent reflecting the functional legal personality of each
organisation. This necessitates adoption of a pragmatic approach, making a case-by-
case examination necessary when trying to identify the human rights obligations of
a particular international organisation.
Finally I want to add that this article, despite trying to convince one that saying
“yes” to human rights obligations of international organisations is possible and desirable,
shall not be regarded as part of an activism campaign of human rights lawyers, who were
once described by
Humprey
as “notoriously wishful thinkers”.
104
It tried to demonstrate
that answering its key question is possible even without disregarding international
practice and major concepts of international law. However, I have to admit that the
debate on implications of the trend of human rights permeating international law
and the increasing degree of institutionalisation in the international community will
certainly remain among the topics continuing to inspire fruitful academic debates, in
particular with regard to the question of the scope of human rights application, their
enforcement, and accountability of international organisations for their violation.
104
HUMPHREY, John P. Foreword. In: LILLICH, Richard B.
Humanitarian intervention and the United
Nations
. Charlotesville: University Press of Virginia, 1973, p. vii.