CYIL 2014

ARE INTERNATIONAL ORGANISATIONS BOUND BY INTERNATIONAL HUMAN RIGHTS… 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 ratification 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 ECHR 64 was amended, providing now explicitly for the possibility of accession of the European Union to the ECHR. That 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. There 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. The principle of speciality reflects 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 reflection of the specific character of human rights (e.g. the specific character of human rights treaties, which go beyond the traditional reciprocal relationship between contracting parties as they have third-party beneficiaries); 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. The 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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