CYIL 2014

MARTIN FAIX CYIL 5 ȍ2014Ȏ among other things with regard to the range of their rights and competences. In practice this was reflected, 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. Therefore, 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. There 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 different 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 difficulties, 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. This 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.). The 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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