CYIL 2014

MARTIN FAIX CYIL 5 ȍ2014Ȏ application of international treaties and local customary international law. The applicability of customary rules to international organisations was confirmed 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 . Differences 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. This 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, differences persist as to the identification 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 . The 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. The International Court’s Advisory Opinion on the Who-Egypt Agreement of 1951. The 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.

286