CYIL 2015

MARTIN FAIX CYIL 6 ȍ2015Ȏ The fate of proposals to insert such a catalogue, for example in the UN Charter or the founding treaties of the European Union ( Treaty establishing a Constitution for Europe ), however, shows that States are rather reluctant to include human rights provisions in the documents establishing international organisations. Nevertheless, even if the founding treaty does not contain a human rights catalogue, it may serve as a legal basis for creation of a system under which the responsibility of the organisation for violations of individual rights can be realized, and thus the right to reparation derived and made actionable. This is, for example, the case of Article 340 of the Treaty on the Functioning of the European Union (TFEU), 73 providing for an obligation to grant reparation 74 in cases of extra-contractual liability of the European Union. The founding treaty of the EU is interesting also from the perspective that it contains a provision (Article 6 para. 3 TFEU) through which the ECHR became a part of EU law as one of the sources of human rights in the form of the EU’s general principles. With regard to the right to reparation, a thought provoking question arises, namely whether this right as guaranteed under the ECHR is deprived of its original parameters by entering through the door of Article 6 para. 3 TFEU, or to what extent Article 6 TFEU causes changes to the parameters of its application within the framework of the EU’s legal system. I shall not explore this question in any detail, as it exceeds the scope of this contribution. Besides the competence to enter into international agreements, international organisations regularly also possess the competence to produce unilateral acts. Such norms may create obligations with different addressees (internal instructions binding organisations’ organs, 75 decisions binding to its Member States, obligations of the organisation in external relations), but also different beneficiaries. As much as international organisations possess the capacity to issue such acts, be it with purely internal effect or also external effect, whether the addressees are the Member States or third States, unilateral acts can be considered as a source of their human rights obligations and, consequently, also the obligation to provide reparation. For example, the United Nations has developed, in the area of peacekeeping operations, internal liability rules. Originally they had the form of internal guidelines applicable in negotiations for a compromise settlement; later they evolved into legally binding provisions with external effect, forming a basis from which a victim’s right to reparation can be derived. 76 However, one may agree with Schmalenbach , who 73 Article 340 TFEU provides that “ the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties .” 74 SARVARIAN, Arman. The Accession of the EU to the ECHR and the Law of International Responsibility. In: KOSTA, Vasiliki, SKOUTARIS, Nikos, TZEVELEKOS, Vassilis (eds.), The EU Accession to the ECHR. Oxford: Hart Publishing, 2014, pp. 87-105, at p. 91. 75 For example the UN-Secretary General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law (UN Doc. ST/SGB/1999/13 of 6 August 1999). 76 SCHMALENBACH, Kirsten. Third Party Liability of International Organizations: A Study on Claim

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