CYIL 2014

ARE INTERNATIONAL ORGANISATIONS BOUND BY INTERNATIONAL HUMAN RIGHTS… 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. The second argument of Bleckmann relates to continuity and gap-filling tasks which general international law, including custom, fulfils. 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, filling 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. The 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 superfluous. 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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