Are international organizations bound by human rights obligations? Czech Yearbook of Public and Private International Law, vol. 5, 2014, p. 267 - 290

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ARE INTERNATIONAL ORGANISATIONS BOUND BY INTERNATIONAL HUMAN RIGHTS…

ARE INTERNATIONAL ORGANISATIONS BOUND BY INTERNATIONAL HUMAN RIGHTS OBLIGATIONS?

Martin Faix

Abstract: Institutionalisation and humanisation are two of the most dynamic and vital developments of modern international law. Th eir intertwinement and accommodation in the system of international law have become a steady challenge, as can be demonstrated, for example, in the issue of the responsibility of international organisations for human rights violations. Th is contribution, however, takes a more general approach in addressing the issue and asks the question which is as much obvious as it is crucial and uneasy to answer: Do international organisations have human rights obligations, and, if yes, what are their sources? Th e article will conclude that it is not only desirable but under the current international law also possible to answer this in the affi rmative.

Resumé: Pro vývoj mezinárodního práva po druhé světové válce jsou charakteris-tické především dvě tendence – institucionalizace a humanizace. Jak problematic-ké je jejich zakotvení v systému mezinárodního práva lze ilustrovat na problematice odpovědnosti mezinárodních organizací za porušení lidských práv. Tento příspěvek se ale zaměří na základní otázku, která se prolínáním těchto trendů nastoluje, a je tedy stejně zjevná, jako i komplikovaná: mají mezinárodní organizace lidskoprávní závazky a když ano, jaké jsou jejich prameny? Příspěvek se přikloní k pozitivní od-povědi argumentujíc, že taková odpověď je nejen vhodná, ale v současném systému mezinárodního práva také normativně možná. Příspěvek nejdříve načrtne zmíněné vývojové tendence, druhá kapitola pak pojedná o mezinárodněprávním postavení mezinárodních organizací jakožto východiskovém bodu dalších úvah. Třetí kapitola pak odpoví na klíčovou otázku, když potvrdí, že mezinárodní organizace jsou vázány lidskoprávními závazky, i když problematickým zůstává především jejich obsah, ale také rozsah aplikace.

Key words: International organisations, human rights, personality, treaties, customary international law, obligations, general principles of law.

On the Author: JUDr. Martin Faix, PhD., MJI, is senior lecturer in international law at Palacký University in Olomouc, Faculty of Law, and at Charles University in Prague, Faculty of Law. Th is article is the result of a project conducted at the Palacký University Faculty of Law POST-UP II (CZ.1.07/2.3.00/30.0041).

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MARTIN FAIX CYIL 5 2014

1. Introduction

1.1 The goal and scope of this contribution

Th e topic of this article interconnects and refl ects on two of the most important developments in international law in the last century – the rise of international organisations and the mainstreaming of human rights in practically all aspects of life of the international community. If one takes into account the hardly measurable scope of their infl uence on international relations and on international law as a system, the need to bring light into the murky waters of their steadily ongoing and expanding intertwinement cannot be doubted. Despite the existence of some relevant international judicial decisions and the bursting amount of academic writing on both topics, their interconnection cannot be considered as being suffi ciently clarifi ed in legal terms.1 Th is can be seen as an unavoidable result of the nature of the current international legal system, which was created and thus still is designed to fi t the fact of being State-focused. Th is is true also for the area of human rights, where the lack of answers became visible especially with regard to the issues of the accountability of international organisations for human rights violations. However, the crucial question (not only for accountability) is whether international organisations can have human rights obligations, and, if so, what are their sources.

It is the aim of this article is to determine whether, and to what extent, international law norms relating to human rights apply to international organisations. Th is aim will be pursued with a focus on general applicability of human rights, thus not focusing on specifi c regimes or application of human rights in specifi c situations, such as military operations. Also accountability of international organisations, which is often the focal point of academic contributions on this topic, shall not be the prism through which the application of human rights to international organisations will be regarded, as even for ensuring full legal accountability it is of utmost importance to (as most of the literature does only very briefl y and in part insuffi ciently) clarify the legal basis for the international organisations’ obligations to comply with human rights.

In the search for the answer I will fi rst delineate the two tendencies, i.e. the Humanisation and the Institutionalisation of international law. In the second step, preliminary issues will be addressed: the defi nition of the term international organisation, but mainly the aspect of the legal status of international organisations under international law, as it fi rst needs to be established whether international organisations have the legal capacity to be bound by human rights norms. Th e core of the contribution is the third section, which will address the issue of whether there exist international human rights obligations applicable to international organisation, and, if yes, what their sources are. I will discuss international treaties (with a brief

1 Th ere are also a few attempts in the legal literature in this regard; see for example McCORQUODALE, Robert. International Organisation and International Human Rights Law: One Giant Leap for Humankind, In: KAIKOBAD, K.H. and BOHLANDER, M. (eds.). International Law and Power: Perspectives on Legal Order and Justice. BRIL, 2009, pp. 141-162;

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look at obligations resulting from treaties concluded by Member States), customary international law, general principles of international law and fi nally unilateral acts. Th e article will conclude by arguing that the current international law system not only allows but actually requires answering the key question of this contribution in the affi rmative.

1.2 The “phenomenon” of human rights permeating international law

An attempt to analyse a question of legal character, such as the key question of this contribution is, would also imply a legal character of the argumentation used. Th us starting with describing human rights and their legalization with the extra-legal term of a “phenomenon” may not appear at fi rst sight a good idea and a proper approach. Moreover, one may recall John Dugard’s words on the diff erent perspectives which academic and government international lawyers have on human rights – the fi rst ones being excited about the fundamental changes which human rights brought to almost all areas of international law, the others remembering that state practice still matters, that state sovereignty did not vanish and that reality is still far from the world as seen through the ideals-coloured glasses of many human rights lawyers.2 Besides it appears as a barely accomplishable undertaking to try to capture in few paragraphs the process of how human rights has permeated international law.

Despite all this, I am convinced that it is not only necessary but is necessary at this stage to do so. Th e reason is simple. Before presenting the legal arguments, it is the exceptionality of human rights (and subsequently that of international organisations) in international law, especially against the background of the traditional understanding of international law, which necessitates providing a certain background and basis, which I consider to be decisive for an understanding of the arguments in favour of binding international organisations to human rights law.

It certainly might be a subject for discussion in what forms, ways and to what extent human rights has infl uenced international law in the past decades; however it is beyond any doubt (and it has to be understood) that human rights cannot be considered as not being (also) a legal concept which continues to signifi cantly infl uence the system of international law 3 as such. It does so by shaping human rights as hard law norms, by formulating human rights claims as legal claims, and generally by pursuing human rights objectives through legal mechanisms,4 reaching from the

2 DUGARD, John. Th e Future of International Law: A Human Rights Perspective – With Some Comments on the Leiden School of International Law. Leiden Journal of International Law. 2007, vol. 20, no. 04, p. 731.

3 See especially Th eodor Meron’s monograph Th e Humanization of International Law (MERON, Th eodor. Th e humanization of international law. Boston: Martinus Nijhoff , 2006), but also KAMMINGA, Menno T., SCHEININ, Martin. Th e impact of human rights law on general international law. New York: Oxford University Press, 2009.

4 DONNELLY, Jack. Th e Virtues of Legalization. In MECKLED-GARCÍ A, Saladin, CALI, Basąk (eds.). Th e legalization of human rights: multidisciplinary perspectives on human rights and human rights law. New York: Routledge, 2006, p. 67.

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creation of great numbers of human rights treaties to the proliferation of eff ective human rights courts and other control mechanisms.5

Th e phenomenon of human rights permeating international law includes both Human-Rightism,6 as the process of infl uencing the international law directly through the explicit inclusion of human rights norms into international agreements or indirectly through becoming a common “feature” of modern international law-making and application, and Humanisation,7 in the sense of a continuing shift of international law’s focus from the state to the individual.8 Th eodor Meron, in his book Th e Humanization of International Law, provides a comprehensive overview in this respect.9 He argues that the “humanization of public international law under the impact of human rights has shifted its focus above all from State-centered to individual-centered.”10

Human rights, as part of the developments and trends just mentioned, also gained a specifi c position in international law. Th e notion “specifi c position” shall not necessarily be understood here as attributing to human rights law a special, distinctive nature in the sense of a self-contained regime,11 to which rules and principles of general international law are (partially or fully) not applicable.12 It shall rather point out the specifi c character of eff ect which human rights has had on international

5 For a refl ection on the limits of legalism in the context of human rights, see WOODIWISS, Anthony. Th e law cannot be enough: Human rights and the limits of legalism. In MECKLED-GARCÍ A, Saladin, CALI, Basąk (eds.). Th e legalization of human rights: multidisciplinary perspectives on human rights and human rights law. New York: Routledge, 2006, pp. 32-48.

6 PRONTO, Arnold N. ‘Human-Rightism’ and the Development of General International Law. Leiden Journal of International Law. 2007, vol. 20, no. 04, p. 754. But see Pellet, who views „human-rightism“ rather critically, arguing against the idea of human rights being something special and autonomous (PELLET, Allain. Human Rightism and International law. Italian Yearbook of International Law. 2000, vol. 10, pp. 3-16).

7 For challenges of this process see a brief analysis of Benedek: BENEDEK, Wolfgang. Challenges of a humanization of international relations by international law. In Challenges of Contemporary International Law and International Relations: Liber Amicorum In Honour of Ernest Petrič. Nova Gorica: Th e European Faculty of Law, 2011, pp. 8-93.

8 LARSEN, Kjetil Mujezinović . Th e human rights treaty obligations of peacekeepers. Cambridge: Cambridge University Press, 2012, pp. 58-59.

9 MERON, Th eodor. Th e humanization of international law. Supra note 4. 10 MERON, Th eodor. Th e humanization of international law. Supra note 4, Introduction.11 In the international community there is no consensus on what „self-contained regime“ in international

law means. Hence it is even more doubtful whether human rights (can) constitute such a regime. On self-contained regimes cf. SIMMA, Bruno, PULKOWSKI, Dirk. Of Planets and the Universe: Self-contained Regimes in International Law. European Journal of International Law, Vol 17 no. 3, 2006, pp. 483-529.

12 Th is approach was also unanimously refused by the ILA Committee on International Human Rights Law and Practice, which was given the task of preparing a report on the relationship between general international law and international human rights law. Th e Committee decided to follow the “reconciliation” approach, i.e. trying to reconcile these two branches of law with each other. See KAMMINGA, Menno T., SCHEININ, Martin. Th e impact of human rights law on general international law. Supra note 4, pp. 1-2.

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law. Th is can be demonstrated 13 in their impact on the structure of international obligations, which was strongly infl uenced by the revolutionary conceptions of erga omnes obligations and jus cogens rules.14

It was the character and the very nature of human rights accenting that there exist certain obligations, generally described as erga omnes obligations,15 which are owed by a State to the international community as a whole and which are, contrary to the originally bilateral character of international law, not based on reciprocity. Relying on the words of the ICTY in the Kupreskič judgment, erga omnes obligations “lay down obligations towards the international community as a whole, with the consequence that each and every member of the international community has a “legal interest” in their observance and consequently a legal entitlement to demand respect for such obligations”.16 In the same decision, the ICTY stated that “Th e absolute nature of most obligations imposed by rules of international humanitarian law refl ects the progressive trend towards the so-called „humanisation“ of international legal obligations, which refers to the general erosion of the role of reciprocity in the application of humanitarian law over the last century“17 and recalled the Barcelona Traction decision of the ICJ, which dealt with erga-omnes obligations and in this context referred specifi cally to obligations concerning fundamental human rights.18

Th e Humanisation of international law relates beyond any doubt also to the development of the jus cogens concept.19 Human rights are common international community values, which the traditional structure of international obligations could hardly accommodate. In order to remedy this, the concept of peremptory norms, which changed the traditional view of international law being based solely on

13 Besides in MERON’s Th e Humanization of International Law (supra note 4), an analysis of the impact of human rights law on areas of general international law (areas, which seem to be hard to reconcile with human rights law, such as law of treaties, their interpretation, structure of international obligations, immunity of States, diplomatic protection or international responsibility) was undertaken, for example, in the above mentioned study of the ILA’s Committee of International Human Rights and Practice; see KAMMINGA, Menno T., SCHEININ, Martin. Th e impact of human rights law on general international law. Supra note 4.

14 I admit that in practice the concept of erga omnes remained „largely rhetorical“ (MERON, Th eodor. Th e humanization of international law. Supra note 4., p. 262); but in my opinion the question of practical utility does not doubt the validity of the concept as such. Finally, the UN International Law Commission also has supported the concept by including it in its Article 48 of the Articles on Responsibility of States for Internationally Wrongful Acts (adopted 12 December 2001, UN GA Res. 56/83).

15 On the concept of obligations erga omnes, see for example RAGAZZI, Mauritio. Th e concept of international obligations erga-omnes. Oxford: Clarendon, 1997.

16 ICTY, Prosecutor v. Zoran Kupreskič et al., judgment from 14 January 2000, para. 519.17 Ibid., para. 518. 18 As the ICJ stated in Barcelona Traction, erga omnes obligations derive “in contemporary international law,

from … the principles and rules concerning the basic rights of the human person …Some of the corresponding rights of protection have entered into the body of general international law … others are conferred by international instruments of a universal or quasi-universal character” (ICJ, Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3, paras. 33-34).

19 MERON, Th eodor. Th e humanization of international law. Supra note 4, p. 201-203, esp. p. 203.

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consent, with all resulting obligations having the equal rank, was introduced by the International Law Commission through insertion of Article 53 VCLT.20 Nowadays, human rights obligations are considered at least partially as peremptory,21 imposing on States the obligation to cooperate with the aim of bringing to an end serious breaches of human rights.22 On the other hand, the whole body of human rights certainly cannot be considered as having the character of jus cogens.23

To sum up, the infl uence of human rights (law) on the creation, application and operation of international law, in both structural and material aspects, constitutes a long term development trend with signifi cant impact. However, it also constitutes a challenge, mainly because of its dimension, because of its partial incompatibility with the traditional understanding of basic concepts of international law such as sovereignty and state centrism, but also because of the understanding of the human rights concept as the most obvious expression of a moral ideal to be accommodated in international legal normativity.

3.1 International organisations, their (qualitative) evolution and human rights

As a preliminary issue, a brief consideration of what I understand as an international organisation appears relevant, especially in the light of the absence of a generally accepted defi nition. International law itself (unfortunately) does not provide any clear answer to the question of what an international organisation is. On the other hand, a signifi cant number of attempts to clarify this and a corresponding body of literature exist.24 In this article the term “international organisation” shall be 20 KAMMINGA, Menno T., SCHEININ, Martin. Th e impact of human rights law on general international

law. Supra note 4, p. 6. Moreover, Article 60(5) VCLT bars States from invoking the material breach of a treaty by another party as a ground for terminating or suspending “provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form or reprisal against persons protected by such treaties”.

21 PELLET, Allain. Human Rightism and International law. Supra note 7, p. 8; CLAPHAM, Andrew. Human rights obligations of non-state actors. New York: Oxford University Press, 2006, pp. 87-91.

22 Article 41 of the Articles on Responsibility of States for Internationally Wrongful Acts (adopted 12 December 2001, UN GA Res. 56/83).

23 Higgins names as examples of rights with status of jus cogens the right to life, the right to freedom from slavery or torture, HIGGINS, Rosalyn. Derogation Under Human Rights Treaties. British Yearbook of International Law (1976-77). Oxford: Clarendon Press, 1978, vol. 48, pp. 281- 312, at p. 282. See also BIANCHI, Andrea. Human Rights and the Magic of Jus Cogens. European Journal of International Law. 2008, vol. 19, no. 3, pp. 491-508.

24 Cf. the defi nition by the UN International Law Commission (ILC): „International organization means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities“ (Responsibility of International Organizations. Text and titles of draft articles 1 to 67 adopted by ILC the Drafting Committee on second reading in 2011, 30 May 2011, UN General Assembly Doc. A/CN.4/L.778, Article 2). From Czech literature, see for example: MALENOVSKÝ, Jiří. Mezinárodní právo veřejné: jeho obecná část a poměr k jiným právním systémům, zvláště k právu českému. 5. vyd., Brno: Masarykova univerzita a nakladatelství Doplněk, 2007, p. 104; DAVID, Vladislav et al., Mezinárodní právo veřejné s kazuistikou. 2. vydání. Praha: Leges, 2011, p. 149. For

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understood as a form of permanent international cooperation, created as an organized entity on the basis of an instrument 25 governed by international law, possessing at least one organ with a will distinct from that of its founding members in order to achieve purposes for which it was created. I identify myself also with the “caveat” of Jan Klabbers, according to which it is nearly impossible to defi ne “international organisation” in a comprehensive (and abstract) way. But, as he adds, when we see one, we usually can identify it as such.26

International organisations became the decisive aspect of institutionalisation of the cooperation of States in the last century, among others, because they can be created for nearly any purpose and endowed with competences adequate to their functions.27 But the post-World War II era is characterized by a remarkable shift in the understanding of international organisations from being purely “vehicles” of their member states’ interests in narrowly determined areas 28 to multifunctional entities vested with greatly increased functions and competences which concern many areas of vital interest for the international community.29

In the course of this process international organisations became more independent from their Member States – in legal and extra-legal terms. In legal terms, they are not anymore understood as a “speaking tube”, i.e. as an instrument used to express the consolidated will of its members. Such an entity could be considered to be an international collegial organ acting on behalf of its members, but not an international organisation. Today, they are considered to be separate legal persons under international law as they carry out activities resulting from their own will created by their own organs. Th eir own will and conduct are accepted as belonging to the group of common denominators of various defi nitions of the term “international organisation”, but, more importantly, they refl ect and signify the autonomy of the organisation and its ability to conduct activities on its own. And it is this ability

other sources cf. SEIDL-HOHENVELDERN, Ignaz, LOIBL, Gerhard. Das Recht der Internationalen Organisationen einschliesslich der Supranationalen Gemeinschaften. 7. Aufl age. Köln: Carl Heymanns, 2000, para. 0105; SCHERMERS, Henry G., BLOKKER, Niels M. International Institutional Law: Unity within diversity. 4. ed. Boston/Leiden: Martinus Nijhoff , 2003, pp. 26-37, paras. 33-45. AMERASINGHE, Chittharanjan F. Principles of the institutional law of international organizations. New York: Cambridge University Press, 2005, pp. 9-11.

25 Th e term „international instrument“ appears more suitable as the founding instrument does not have to constitute an international agreement. Th is was the case with the UNICEF, which was created by the UN GA Resolution 57 [I] from 11. December 1946. But for example in the case of the OSCE, there is no founding instrument at all.

26 KLABBERS, Jan. An introduction to international institutional law. 2nd ed. Cambridge: Cambridge University Press, 2009, p. 6.

27 KLEIN, Eckart. Die Internationalen und Supranationalen Organisationen. In: VITZTHUM, Wolfgang Graf (Hrsg.). Völkerrecht. 2. Aufl age. Berlin: De Gryuter, 2001, p. 273.

28 Cf. especially the forerunners of international organisations, such as the river commissions, e.g. the Rhine Commission, European Commission for the Danube, etc.

29 With regard to the infl uence of international organisations on international law see for example: BOTHE, Michael, et al. Völkerrecht. Wolfgang Graf Vitzthum (Hrsg.). 2. Aufl age. Berlin: Walter de Gruyter, 2001, p. 279 et seq.

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which has been continuously strengthened by transferring more and more functions to international organisations, but also by changing the way they work. Wonderful examples are integration organisations, such as the ECOWAS, the African Union or the European Union. For example, the EU integration process brought not only a broadening of the EU’s competences but also a shift in decision-making in more and more areas from unanimity to majority vote. Th e rising number of international organisations, the signifi cant widening of their functions, a corresponding increase of their competences and scope of conduct have indisputably contributed to their growing impact on all members of the international community.

International organisations have not only become more autonomous and been vested with broader competences, but their evolution has led to an increased ability to directly impact individuals and their legal position, which has led again inevitably to the possibility of human rights breaches resulting from the conduct of international organisations. Th is concerns not only integration organisations such as the EU, the law of which enjoys direct applicability in EU Member States and thus creates rights and duties for their nationals without the need for a transposition to national law, or the United Nations and the individual sanctions of the Security Council, but also organisations conducting security operations (NATO, EU, AU, ECOWAS, etc.) or fi nancial institutions (World Bank, WTO, etc.). For example the World Bank included human rights norms 30 in many of its operational policies and procedures. Moreover, in 1993 the Executive Directors of the World Bank decided to create an Inspection Panel,31 which allows individuals, but also associations and nongovernmental organisations, to bring complaints related to Bank projects and to the Bank’s failure to follow its own rules, thus enabling individuals and communities to hold the World Bank accountable as an international organisation for violations of its internal rules.32

Another aspect to be mentioned here is that international organisations have become important actors in the area of human rights. Th e changing quality and role of international organisations, but also the general trend of human rights mainstreaming into all aspects of the life of the international community, have made human rights an aspect at the top of the agenda in many international organisations. It can be argued that the role of international organisations in promoting respect for human rights (and the rule of law) has been both impressive and without precedent. In order not to focus only on the example of the United Nations as a world-wide international organisation with great signifi cance, we may mention the importance of the so-called Copenhagen criteria, which were the conditions defi ned by the EU’s European Council during its meeting in Copenhagen in 1993 concerning the issue of the admission of Central and Eastern European Countries to the European Union.

30 Such as indigenous rights, participatory and resettlement rights.31 See www.worldbank.org/inspectionpanel (last accessed 25. June 2014).32 RYNGAERT, Cedric. Th e Humanization of International Law. Refl ections on Th eodor Meron’s Hague

Lecture. Human Rights and International Legal Discourse. 2007, vol. 1, pp. 425-441, at p. 431.

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Th e set of criteria included the requirement of “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”. Also the membership in the Council of Europe, an organisation established in the aftermath of World War II specifi cally for the purpose of human rights protection, certainly stimulated human rights protection in this part of Europe.33

Generally it can be argued that international organisations contributed to a higher eff ectiveness of international human rights law in many ways, but especially through the institutionalisation of its enforcement or providing the framework for its codifi cation. Th is can be considered as a part of the general tendency for which not only a shift from the State as the solely responsible entity in the area of human rights is characteristic but also imposing human rights obligations on other non-state actors, including international organisations.34

2. Legal Status of International Organisations under International Law

Before turning attention to the question of whether and to what extent international organisations are bound by human rights, the question of the legal status of international organisations under international law shall be addressed. Repeating the discussion or giving an in-depth view into the still somewhat murky waters of the discussion on this issue would be inappropriate here; but addressing it briefl y appears logical, as international legal personality seems to be a commonly accepted prerequisite for an international organisation to have proper obligations under international law, including those in the area of human rights.

Th e usual starting point and the leading precedent for considerations regarding the position of international organisations in international law is the statement of the ICJ in the Reparations for Injuries Suff ered in the Services of the United Nations Advisory Opinion:

“Th e subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. … In the opinion of the Court, the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane … Accordingly, the Court has come to the conclusion that the Organization is an international person. Th at is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State … It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable

33 Even though this question would deserve a more detailed analysis, especially with regard to the issue of enforcement of human rights protected by the COE treaties, such an analysis would go beyond the scope of the present contribution. Moreover, it would not lead to any signifi cantly diff erent conclusion than that of the overall positive eff ect, which currently the COE system continues to unfold.

34 LARSEN, Kjetil Mujezinović . Th e human rights treaty obligations of peacekeepers. Supra note 9, p. 57.

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of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.” 35

First of all, the Opinion provides some guidance on terminology which is being used in relation to the international legal status of international organisations, such as legal personality, subjectivity, legal capacity and competence. Although diff erent views have been presented in the legal literature as to the meaning and scope of these terms, in my understanding a subject of international law is an entity possessing rights and duties stemming directly from international law. Th e notion of international legal personality describes rather the ability to possess such rights and duties, and the ability to participate in international legal relations, i.e. to exercise powers on the international plane.36 As to the distinction between legal personality and legal capacity, I rely on words of Wessel: the fi rst concerns a quality, the second is an asset, which describes what the organisation is potentially entitled to do.37 Th us legal capacity refers to specifi c capacities, such as treaty-making capacity or capacity to bring international claims.

It has been argued that international legal personality is nothing “but a descriptive notion: useful to describe a state of aff airs, but normatively empty, as neither rights nor obligations fl ow automatically from a grant of personality”.38 It can be agreed that its existence as such does not in itself say anything about the existence of human rights obligations of international organisations.39 However, it is their international legal personality, which is related to the question of the capacity of international organisations to enter into international agreements, to accept international obligations and consequently also to violate them – including in the area of human rights.

35 Reparations for Injuries Suff ered in the Service of the United Nations, Advisory Opinion,. I.C.J. Reports 1949, pp. 178-179.

36 Similarly NAERT, Frederik. International law aspects of the EU’s security and defence policy, with a particular focus on the law of armed confl ict and human rights. Antwerp: Intersentia, 2010, p. 265. For the ability to exercise its own rights under international law the German doctrine uses the term völkerrechtliche Handlungsfähigkeit, for the ability to possess rights and duties under international law Völkerrechtsfähigkeit. Cf. SCHMALENBACH, Kirsten. Die Haftung Internationaler Organisationen. Frankfurt am Main : Peter Lang, 2004. p. 51 et seq.; BOTHE, Michael. Supra note 30, p. 305 et seq.

37 WESSEL, Ramses A. Th e European Union’s foreign and security policy. Th e Hague: Kluwer Law International, 1999, p. 245.

38 KLABBERS, Jan. Introduction to International Institutional Law. Supra note 27, p. 56.39 In this sense LARSEN, Kjetil Mujezinović . Th e human rights treaty obligations of peacekeepers. Supra

note 9, p. 89.

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It is accepted in the literature 40 and State practice 41 that international legal personality can be granted to international organisations explicitly or implicitly,42 whereas the implicit way is far more the normal case. Nevertheless, there are two unsettled issues: what are the aspects indicating the personality and what are its consequences, i.e. does having international legal personality entail certain inherent competences? Th e two schools of thought which have developed in the doctrine on these questions are the “objective” theory and the “subjective” (“will”) theory.43 Both are based to a certain extent on the Reparations for Injuries Opinion of the ICJ, but come to diverging results when assessing the above mentioned questions.

Most proponents of the subjective theory, to which the will of Member States is the decisive element, do not consider any competences as being inherent. In their opinion for determining the legal status and capacities of international organisations only the will of the founding entities as expressed in the founding document is decisive. Th us no capacities can be “inherent”, as they must result explicitly or implicitly from the founding document. Th e objective theory regards legal personality as given when certain objective criteria are fulfi lled44 and considers at least some of the capacities as arising from the very personality 45 – irrespective of the will of the founders,46 but still somehow respecting possible functional and practical limitations.47 40 KLABBERS, Jan. Introduction to International Institutional Law. Supra note 27, pp. 42 et seq.;

ČEPELKA, Čestmír, ŠTURMA, Pavel. Mezinárodní právo veřejné. 1. ed. Praha: C. H. Beck, 2008, pp. 78 et seq.; MALENOVSKÝ, Jiří. Mezinárodní právo veřejné: jeho obecná část a poměr k jiným právním systémům, zvláště k právu českému. Supra note 25, pp. 146 et seq.; BROWNLIE, Ian. Principles of Public International Law. Sixth Edition. New York: Oxford University Press, 2003, pp. 648 et seq.

41 It can be observed that continuously more and more international organisations are being granted international legal personality explicitly. Th is applies for example to the EU (via changes introduced by the Lisbon Treaty) or the ICC (Article 4(1) ICC Statute: „Th e Court shall have international legal personality“); in this sense NAERT, Frederik. International Law Aspects of the EU’s Security and Defence Policy. Supra note 37, pp. 284 et seq.

42 Reparations for Injuries Suff ered in the Service of the United Nations, I.C.J. Reports 1949, p. 180; SEIDL-HOHENVELDERN, Ignaz; LOIBL, Gerhard. Das Recht der Internationalen Organisationen einschliesslich der Supranationalen Gemeinschaften. Supra note 25, para. 0307 and paras. 0324-0326.

43 Cf. RAMA-MONTALDO, Manuel. International Legal Personality and Implied Powers of International Organizations. British Yearbook of International Law. 1970, 44, pp. 111 et seq.; SEYERSTED, Finn. International Personality of Intergovernmental Organisations. Do Th eir Capacities Really Depend upon Th eir Constitution? Indian Journal of International Law. 1965, vol. 4, pp. 1-75.

44 Basically these criteria are met when international organs are created which may assume their own obligations. Cf. SEYERSTED, Finn. International Personality of Intergovernmental Organisations. Do Th eir Capacities Really Depend upon Th eir Constitution? Supra note 44, p. 53.

45 RAMA-MONTALDO, Manuel. International Legal Personality and Implied Powers of International Organizations. Supra note 44, pp. 111-155. Similarly, but somehow arguing in favour of inherent capacities based on functional necessity, see BEKKER, Peter H. Th e legal position of intergovernmental organizations: a functional necessity analysis of their legal status and immunities. Boston: M. Nijhoff , 1994, pp. 57-83.

46 SEYERSTED, Finn. International Personality of Intergovernmental Organisations. Do Th eir Capacities Really Depend upon Th eir Constitution? Supra note 44, pp. 1-75; WHITE, Nigel D. Th e law of international organisations. New York: St. Martin’s Press, 1996, esp. pp. 28-29.

47 WHITE, Nigel D. Th e law of international organisations. Supra note 47, pp. 52-53.

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Why is this relevant here? With regard to treaty-making capacity, simply because, if one accepts the objective theory with the idea of inherent capacities, then the treaty-making power could also certainly be regarded as one capacity belonging to their common core,48 and, because of Art. 38 ICJ Statute, treaties are on the top of the list of possible sources of human rights obligations which one needs to look at when trying to identify whether and how international organisations are bound by them. However, with regard to the capacity to enter into contractual relations it is neither possible 49 nor necessary to provide a fi nal answer on the confl ict delineated above for the following reasons:50 Most of the international organisations are endowed with (explicit or implicit) capacity simply because it is necessary for fulfi lment of their functions in practise. Th is is, for example, also the case of the United Nations.51 Moreover, in the context of human rights, as will be explained in more detail below, two aspects create a more signifi cant hindrance: fi rst, human rights treaties often simply exclude international organisations from becoming parties to them; second, the principle of speciality applies. As the ICJ pointed out in its later Legality of the Th reat or Use of Nuclear Weapons Advisory Opinion from 1996, “international organizations [...] do not, unlike States, possess a general competence. International organizations are governed by the ’principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interest whose promotion those States entrust to them.” 52 Th is principle does not limit the organisation

48 Ibid. Similarly Lauterpacht: „Th e capacity to conclude treaties is both a corollary of international personality and a condition of the eff ective fulfi lment of their functions on the part of the international organizations.“ (LAUTERPACHT, Hersch. In: Doc. A/CN.4/L.161, as cited in REUTER, Paul [ILC Special Rappporteur], Yearbook of the International Law Commission 1972, vol. II., p. 179, note 74); see also the opinion of Pernice, who distinguishes between the external treaty-making capacity (which he describes as „können“) and what the organisation is internally allowed to do („dürfen“), see PERNICE, Ingolf. Völkerrechtliche Verträge internationaler Organisationen. ZaöRV. 1988, vol. 48, no. 1, p. 236. Also the preamble of the Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations (VCLTIO) from 1986l, which provides: „International organizations possess the capacity to conclude treaties, which is necessary for the exercise of their functions and the fulfi lment of their purposes.“, seems to point in the direction of the inherent character of treaty-making capacity (but see the comment of Klabbers on the distinction between the source of the capacity and the rules applicable on the exercise of this capacity, KLABBERS, Introduction to International Institutional Law. Supra note 27, p. 41).

49 ILC Special Rapporteur Reuter commented on the issue with following words: „Th e problem of the sources of the international capacity of international organizations was for a long time a stumbling block for the Commission.“ (REUTER, Paul, ILC Special Rapporteur, First report on the question of treaties concluded between States and international organisations or between two or more international organisations, Doc. A/CN.4/258, p. 180.

50 Moreover, many authors plead for the reconciliation of the two opposed views, cf. GAUTIER, Philippe. Th e Reparation for Injuries Case Revisted: Th e Personality of the European Union. Max Planck Yearbook of United Nations Law. No. 4, pp. 335 et seq.

51 Cf. CARROZ, Jean and PROBST, Yürg. Personnalité juridique internationale et capacité de conclure des traités de l’ONU et des institutions spécialisées. Paris: Foulon, 1953.

52 Legality of the Use by State of Nuclear Weapons in Armed Confl ict, Advisory Opinion, ICJ Reports 1996, p. 66, para. 25.

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in its general external competence to conclude treaties, but it may limit its specifi c capacity to enter into human rights contractual obligations.

Th e problem of legal personality and inherent capacities does not necessarily need to be solved also when addressing another issue important in the human rights context, namely that of capacity of international organisations to have their international responsibility engaged. It seems to be generally accepted that the ability to bear rights and duties and the ability to breach them are two sides of the same coin, i.e. that engaging international responsibility is inherent to the separate legal personality of international organisations. Th is view is prevailing not only in the literature53, but it is also refl ected in the ILC work on this topic. In the Commentary on Article 354 of the Draft Articles on the Responsibility of International Organizations, the ILC assumed that the general principle, as stated in Articles 3 and 4, applies to „whichever entity commits an internationally wrongful act“.55

3. Human rights obligations of international organisations: basis and sources

Th e previous explanations shed light on the developments justifying an analysis of the key question of this article and suggest answering it in the affi rmative. Th ey also provided the answer to the basic question of whether it is generally possible under international law to think of international organisations as entities bound by human rights law. However, the crucial question when looking at the issue from a normative perspective has not been answered yet: whether there exist international human rights obligations that can be applied to an international organisation and, if yes, what their sources are.56

I will fi rst look at international treaties as the most obvious source of human rights obligations. However, currently no international organisation, with one

53 Cf. NAERT, Frederik. International Law Aspects of EU’s Security and Defence Policy. Supra note 37, p. 296 (with further references, esp. note 1363).

54 Article 3 of the Draft Articles stipulates: „Every internationally wrongful act of an international organization entails the international responsibility of that organization.“ (ILC, Responsibility of International Organizations. Text and titles of draft articles 1 to 67 adopted by the Drafting Committee on second reading in 2011, 30 May 2011, UN General Assembly Doc. A/CN.4/L.778).

55 Draft articles on the responsibility of international organizations, with commentaries, adopted by the International Law Commission at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/66/10), p. 13, para. 1.

56 At this stage I want to briefl y mention one more interesting point, of which a more detailed exploration goes beyond the scope of this contribution, namely to address how international can be (or are) bound by human rights obligations. For example, Uerpmann specifi es the following options: accession, succession, incorporation by means of express reference and by general principles of law (UERPMANN, Robert. International Law as an Element of European Constitutional Law: International Supplem entary Constitutions. Heidelberg: Max Planck Institute for Comparative Public Law and International Law, 2003. Jean Monnet Working Paper 9/03. available at: http://www.jeanmonnetprogram.org/archive/papers/03/030901-02.pdf ).

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exception being the EU,57 is party to any human rights treaty. Moreover, most such conventions are not open to the participation of international organisations. Th erefore 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 identifi cation of their scope of application appears to be easier, and the control of their implementation is often vested into hands of (sometimes highly) eff ective mechanisms. But as usual things are not as easy as they appear at fi rst 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, off er and specifi cally because treaties are simply the dominant source of international human rights law. Th e 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 ratifi cation 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 Th erefore, the core of 57 Th e 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. Th e 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.

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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 ratifi cation 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 ECHR64 was amended, providing now explicitly for the possibility of accession of the European Union to the ECHR.

Th at 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. Th ere 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. Th e principle of speciality refl ects 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 refl ection of the specifi c character of human rights (e.g. the specifi c character of human rights treaties, which go beyond the traditional reciprocal relationship between contracting parties as they have third-party benefi ciaries); 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. Th e 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.

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among other things with regard to the range of their rights and competences. In practice this was refl ected, for example, by the European Court of Justice in its Opinion 2/94, in which it negatively responded to the question of the competence of the Union to accede to the ECHR.

Th erefore, unless there is an obstacle, for example a lack of capacity to accede human rights treaties due to their functional nature, international organisations can generally have human rights obligations resulting from international agreements concluded by them.

Th ere is another question related to the functional nature of international organisations: Human rights treaties were made and still are made to produce obligations typically addressed to States; but are they, despite of their character, also assignable to international organisations? 66 Accession to human rights treaties obliges their parties primarily to respect certain minimal standards of rights of persons under their jurisdiction, which basically means that the parties shall not adopt any measures which would interfere in the exercise of rights guaranteed by these standards (so called negative obligations 67 ).68 Obeying this type of obligation by international organisations is in my opinion not problematic as the issue does not involve the question of competences.69 However, a diff erent approach could be taken with regard to positive obligations; but, in the end, their application in the context of international organisations also seems not to pose any diffi culties, as even under this type of obligation organisations would be required to take action to the extent corresponding with those competences which have been attributed to them, i.e. in accordance with the speciality principle.

Another issue regarding contractual obligations which I want to examine is the problem of whether international organisations are bound only by contractual (human rights) obligations entered into by themselves, or also by those binding their Member States. Th is is a question to be posed not only in the context of contractual obligations but also with regard to other obligations, for example those of a customary nature. However, since treaties are the dominant human rights source, I will deal with this question here.

66 It is a similar issue to what the ILC faced when trying to resolve the question of whether and to what extent the rules applicable to international responsibility of States can also be applied to international organisations. See the General Commentary, Draft articles on the responsibility of international organizations, with commentaries, adopted by the International Law Commission at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/66/10), pp. 2 et seq.

67 On positive and negative obligations under human rights law see for example: SHELTON, Dinah, GOULD, Ariel. Positive and negative obligations. In: SHELTON, Dinah (ed.). Th e Oxford handbook of international human rights law. Oxford: Oxford University Press, 2013, pp. 562-587.

68 DE SCHUTTER, Olivier. Human Rights and the Rise of International Organisations. Supra note 64, p. 114.

69 Ibid.

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Th e 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 fi elds 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 fi eld 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 eff ective.“ 70 Th e 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 confi rmed for example by the Committee on Economic, Social and Cultural Rights with regard to right to water 71 and is recognized also in literature72. 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 which Members 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 off er no suffi cient 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: Th e 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 fi nancial 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 confi dence 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. Th e Legal Basis of International Organization Action. In: DUPUY, René Jean. Manuel sur les organisations internationales: A handbook on international organizations. 2. é d. Boston: M. Nijhoff , 1998, p. 403).

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of States’ own treaty obligations should be rather enforced through mechanisms of the responsibility of Member States. Also the above mentioned judgment of the Strasbourg court as well as the Human Rights Committee statement seem merely to back up this position, instead of insisting on international organisations succeeding into its Member States human rights obligations. Hence human rights agreements to which Member States of an international organisation are party cannot be considered as a source of an organisations’ own obligations.

Th e most important treaty for international organisations is their constituent document, which may contain obligations imposed on the organisation by its Member States.74 For example, Article 6 stipulates for the European Union obligations regarding the respect of fundamental rights. But such obligations may also result from documents related to the founding treaty. For example, for the European Union the most important source of human rights obligations, besides the constitutional treaties, is the Charter of Fundamental Rights of the European Union.75 Th ere also might be other related documents, such as agreements concerning the privileges and immunities of the organisation; but those are due to their material scope, generally rather unlikely to contain obligations in the area of human rights. Much more problematic and more intensively debated than in the context of the EU was the issue of human rights commitments resulting from the constituent treaty (and related documents) with regard to the United Nations. In literature there is a lengthy debate about whether the UN is bound by human rights under the UN Charter, especially under the Articles 1(3) and 55(c) UN Charter. Currently the prevailing view seems to confi rm (especially on the basis of travaux préparatoires) such an intention of the UN Charter fathers.76

3.2 Human rights obligations under customary international law

A brief answer to the question of whether international organisations have obligations under customary human rights law would be “yes”. Nevertheless, there are two issues which in my opinion need to be addressed. Th e fi rst one is well debated in international law and concerns the issue of whether (and, if yes, then which) human rights have gained the status of customary international law. Th e second issue is largely settled in the international literature,77 but arguably not so in Czech 74 Such obligations may result from related documents as well, for example from agreements concerning

privileges and immunities of the organisation; but these are generally unlikely to contain obligations in the area of human rights. Documents produced by Member States and devoted specifi cally to human rights protection, such as is the case with the EU Charter of Fundamental Rights, are truly exceptional.

75 Charter of Fundamental Rights of the European Union, O.J. C 83, 30 March 2010, 839. Another important source is the ECHR. Th e EU is not a party to ECHR yet, but the convention already became part of EU law as one of the sources (together with the constitutional traditions common to the member states) of human rights forming part of general principles on the basis of Article 6 para. 3 TEU.

76 Cf. REINISCH, August. Developing human rights and humanitarian law accountability of the Security Council for the imposition of economic sanctions. American journal of international law. 2001, vol. 95, no. 4, p. 857.

77 SCHERMERS, Henry G. Th e Legal Basis of International Organization Action. Supra note 74, p. 402.

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international legal doctrine.78 It concerns the question of whether international organisations are generally bound by customary international law.79

It is mostly accepted that in their external relations international organisations are bound by international customary rules which are related to their activities and which the international organisation is able to apply. But what is still debated is the basis allowing for such a conclusion. Without going into depth of the variety of scholarly opinion, I may mention three options provided by Schermers: the binding force of customary rules may result from international organisations being subjects of international law; it may be based on the presumption that Member States have bound the organisation to customary rules; or it is a given because customary rules are part of general international law, which also applies to international organisations.80 I will rely on this and add two arguments put forward by Bleckmann which I consider convincing.81

Bleckmann argues with equality before the law as a general principle enshrined in every legal order. Indeed, for me it is not obvious why international organisations should not be treated equally to States with respect to the application of customary rules, which together with general principles of law amount to the basic normative framework of the life and functioning of the international community. An international organisation with an international legal personality 82 does not exist in a legal vacuum but exists in the international legal order by virtue of this legal order 83 – despite the fact that its creation depends on the will of its Member States.

Th e second argument of Bleckmann relates to continuity and gap-fi lling tasks which general international law, including custom, fulfi ls.84 In fact, international law and its coherency as a legal system would be endangered if international organisations, as entities participating in international relations in such an extensive manner, would not be bound by general international law, fi lling gaps left by the 78 Against the applicability of customary rules, see for example ČEPELKA, Čestmír, ŠTURMA, Pavel.

Mezinárodní právo veřejné. Supra note 41, p. 79. Pleading in favour of applicability, see JÍLEK, Dalibor. Mezinárodní organizace: partikulární subjektivita. Vyvratitelnost předchozí hypotézy. In: ŠTURMA, Pavel (ed.). Právní následky mezinárodně protiprávního chování: Pocta Čestímru Čepelkovi k 80. narozeninám. Praha: Univerzita Karlova v Praze, Právnická fakulta, 2007, p. 119.

79 In this regard many questions remain, such as the possibility of participation of international organisations in the creation of international custom.

80 SCHERMERS, Henry G. Th e Legal Basis of International Organization Action. Supra note 74, p. 402.81 BLECKMANN, Albert. Zur Verbindlichkeit des allgemeinen Völkerrechts für Internationale

Organisationen. ZaöRV. 1977, vol. 37, no. 1, p. 113 – 120. Available online at: http://www.zaoerv.de/37_1977/37_1977_1_t_107_121.pdf (last accessed 26 June 2014).

82 Also international organisations not possessing international legal personality may exist. Such organisations, however, are not bound to any own rights and obligations under international law; hence the discussion whether they are bound by customary rules would be superfl uous.

83 ZWANENBURG, Marten. Accountability of peace support operations. Boston: Martinus Nijhoff Publishers, 2005, p. 151; NAERT, Frederik. International Law Aspects of the EU’s Security and Defence Policy. Supra note 37, p. 394.

84 BLECKMANN, Albert. Zur Verbindlichkeit des allgemeinen Völkerrechts für Internationale Organisationen. Supra note 82, pp. 113-120.

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application of international treaties and local customary international law. Th e applicability of customary rules to international organisations was confi rmed by the ICJ in the Advisory Opinion on the WHO – Egypt Agreement of 1951: “International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.“ 85 Finally, this approach was also taken by the ILA Committee on the Accountability of International Organisations.86

However, it must also be pointed out that the previous argumentation does not mean application of customary rules in their entirety. Diff erences arise with respect to the possession of certain legal capacities and the sphere of competence of the particular organisation. Furthermore, lex specialis may be applicable, taking precedence over customary rules. Hence determining which customary rules apply to a particular organisation is certainly an uneasy undertaking and needs to be conducted on a case-by-case basis.

Th is conclusion is also valid for determining the human rights customary obligations. Notwithstanding the trend of slowly converging views on the obligation of international organisations to respect at least some human rights norms, diff erences persist as to the identifi cation of the sources of such an obligation and its scope.87 Often the argument is presented that the fundamental rights enshrined in the Universal Declaration of Human Rights (UDHR) have gained the status of customary rules. Indeed, the massive support for the document and its understanding as being the heart and starting point of the legalisation of human rights support this idea. It has also been argued that international organisations are bound by customary human rights standards resulting from “treaties that have been drafted by representatives of nearly all States with the intention to create universal law.”88 Such standards are also binding on international organisations “customarily”, as they are not only treaty commitments but the basis of their binding force is their character as principles recognized by civilized States.89 Moreover, as explained above, it is accepted that at least some provisions of human rights law are considered as jus cogens. Th e very nature and character of peremptory norms leaves no other option than to consider them also binding on international organisations.

85 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, p. 89-90, para. 37. See also GRAY, Christine. Th e International Court’s Advisory Opinion on the Who-Egypt Agreement of 1951. Th e International and Comparative Law Quarterly, 1983, Vol. 32, No. 2, pp. 534-541.

86 ILA Committee on Accountability of International Organisations, Berlin Conference, Final Report, 2004 (available at: http://ila-hq.org, last accessed 28 June 2014), p. 18 and p. 20.

87 WOUTERS, Jan, BREMS, Eva, SMIS, Stefaan, SCHMITT, Pierre. Introductory Remarks. Supra note 58, p. 6.

88 SCHERMERS, Henry G., BLOKKER, Niels M. International Institutional Law. Supra note 25, p. 1001, para. 1577.

89 HIGGINS, Rosalyn. Derogation Under Human Rights Treaties. Supra note 24, p. 282.

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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 specifi c 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 diff erences existing between international organisations as to their competences, functions, as the debate in relation to international development and fi nancial 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 signifi cant 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 specifi c 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. Th e World Bank, the IMF, and human rights. Transnational law & contemporary problems. 1996, vol. 6, no. 1, pp. 47 – 90; SKOGLY, Sigrun I. Th e 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, Th eodor. Th e 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. Th e 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.

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context of Article 38(1) ICJ Statute to general international law.95 Hence, what is the reason to accord them a diff erent status with regard to their eff ect on international organisations?96

Th e above argumentation appears convincing, especially in light of the bursting range of human rights related activities of international organisations and correlated legal questions, the clarifi cation of which is necessitated, among other things, by the overall humanisation of international law. Nevertheless, a certain doubt remains – namely whether it is appropriate to blur the contours of the two notions, international custom and general principles of international law. Pellet, in this regard, draws attention to the fact that many human rights authors, by seeing the general principles as anchored in positive international law, “profoundly modify” the nature of general principles in the meaning of their creation process.97 In contrast to customary rules, they must be recognised in domestic legal systems, constitute their common denominator and be transposable to international law.98 By deriving general principles of human rights law from positive international law, the direction of permeation would change entirely. Instead of deriving general principles from national legal systems and elevating them to the international law level, they would percolate from international law down into domestic fora.99

Th e ICJ jurisprudence does not seem to be very helpful in addressing the issue, as it refers to human rights (or considerations of humanity) alternatively as general principles of international law to be derived from international treaties and custom, or as to general principles of international law as a separate formal source of international law in the sense of Article 38(1) ICJ Statute.100 Despite such lack of clarity I may recall the ICJ’s words in the Corfu Channel Case, in which the Court mentioned obligations “based … on certain general and well recognized principles”, among which it mentioned “elementary considerations of humanity”.101 Th is statement is in line with the considerations of the previous sections and especially with the fact that the core of human rights law constitutes jus cogens, leading us to the more or less accepted conclusion that human rights form a part of general international law, which international organisations have to obey.

95 Some authors argue that it is diffi cult to diff erentiate between general principles and customary international law, cf. SCHERMERS, Henry G. Th e Legal Basis of International Organization Action. Supra note 74, p. 401-402.

96 NAERT, International Law Aspects of the EU’s Security and Defence Policy. Supra note 37, p. 397.97 PELLET, Allain. Human Rightism and International law. Supra note 7, p. 7.98 Ibid.99 SIMMA, Bruno, ALSTON, Philip. Th e Sources of Human Rights Law: Custom, Jus Cogens, and

General Principles. Supra note 93, p. 102.100 De SCHUTTER notes correctly that exactly for this reason the statements of the ICJ should be taken

with caution; but his conclusion appears equally confusing, as it is not clear which notion of „general principles“ he applies to the UDHR (DE SCHUTTER, Olivier. Human Rights and the Rise of International Organisations. Supra note 64, pp. 71-73).

101 ICJ, Corfu Channel Case, Judgment, I.C.J. Rep. 1949, pp. 4 et seq. (at p. 22). For a brief overview on Courts’ statements in this regard see DE SCHUTTER, Olivier. Human Rights and the Rise of International Organisations. Supra note 64, p. 71-72.

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To sum up, inasmuch as (certain) human rights can be considered to form general principles of international law, they will bind international organisations and apply to their activities. Despite the fact that this is a somewhat imprecise answer to the questions of whether human rights constitute general principles of international law 102 and of which of them, if yes, in practice the general nature of general principles makes them less likely to be a subject of derogation than is, for example, the case with customary obligations.

3.4 Unilateral acts as another source of human rights obligations

International organisations may possess the competence to adopt decisions binding themselves; thus it appears logical to discuss unilateral acts as a possible source of human rights obligations. Nevertheless, such obligations may have diff erent addressees. International organisations may adopt decisions binding themselves internally (internal instructions binding its organs 103 ), but they may produce unilateral commitments in their external relations, for example by promising to provide humanitarian aid or money to a third State. Th ings get even more complicated with the internal–external conception if the organisation is empowered to adopt decisions binding to its Member States (e.g. the European Union). I will not explore this at this stage, as it does not appear necessary for answering the question whether such unilateral acts can be a source of human rights obligations. As much as international organisations possess the capacity to issue such acts, be it with purely internal eff ect or also external eff ect, whether the addressees are the Member States or third States, unilateral acts can be considered as a source of their human rights obligations.

4. Conclusions

Th e present study has certainly its weak but also strong points. Among the weak ones which I am aware of, is that it appears diffi cult to address questions of a general character such as is the case in this contribution. Such considerations are likely to leave questions unanswered or often stop at a point when it starts to get interesting. However, I consider the article to have provided strong evidence for the necessity to go back to the roots of all the interesting niches of the two dominant trends in the post-war development of international law, its humanisation and institutionalisation, and to explore one of the fundamental questions arising from the intertwinement of these developments, namely whether international organisations have human rights obligations under international law.

I have shown that currently international organisations must be regarded as separate legal entities under international law, and thus they are also generally able to bear 102 An interesting approach was taken by Clapham, who does not mention general principles of law but

adds another „category“ of human rights law by speaking about „universal standards, which may not necessarily by legally binding as such“. CLAPHAM, Andrew. Human rights obligations of non-state actors. Supra note 22, p. 99-100.

103 For example, the UN-Secretary General’s Bulletin on Observance by United Nations forces of international humanitarian law (UN Doc. ST/SGB/1999/13 of 6 August 1999).

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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 suffi cient legal basis in current international law for such a conclusion. Th e 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. Th eir eff ect 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 refl ecting the functional legal personality of each organisation. Th is 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.