CYIL 2014

ARE INTERNATIONAL ORGANISATIONS BOUND BY INTERNATIONAL HUMAN RIGHTS… The 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 fields 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 field 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 effective.“ 70 The 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 confirmed for example by the Committee on Economic, Social and Cultural Rights with regard to right to water 71 and is recognized also in literature 72 . 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 whichMembers 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 offer no sufficient 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: The 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 financial 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 confidence 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. The Legal Basis of International Organization Action. In: DUPUY, René Jean. Manuel sur les organisations internationales: A handbook on international organizations . 2. éd. Boston: M. Nijhoff, 1998, p. 403).

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