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Obligations of International Organizations

It is by now firmly accepted that (most) international organizations have (a degree of) international legal personality and therefore must be considered to be subjects of international law.1 As such, they can be assumed to be bound by rules of general international law. This assumption was thankfully confirmed in the International Court of Justice’s (ICJ) 1980 Advisory Opinion Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Brolmann).

Still, the extent to which rules of general international law are binding upon international organizations remains a puzzling question. This question has notably arisen with regard to international human rights law.[1] [2] Although there seems to be a convergence of views on the obligation of international organizations to respect at least some human rights,[3] controversies persist, notably as to the identification of sources of this obligation and its scope. For several authors, this obligation rests on the customary status of international human rights. The massive adoption and continuous affirmation of the fundamental human rights listed in the Universal Declaration of Human Rights[4] have, so it is submitted, transformed these rules—or at least some of them—into customary international law.[5] As customary international law can be assumed to apply to all subjects of international law, arguably such customary human rights norms are also binding upon international organizations.[6] Other authors consider that human rights have become general principles of international law through the medium of the ‘general principles of law recognized by civilized nations’ mentioned in art. 38(1)(c) of the Statute of the International Court of Justice.[7] Such general principles would not require state practice but rather result from ‘a variety of ways in which moral and humanitarian considerations find a more direct and spontaneous “expression in legal form”.’[8] Moreover, some provisions of human rights law—such as the prohibition of racial discrimination—are considered as norms of jus cogens.[9] It is generally admitted that peremptory rules bind international organizations.[10]

International courts are slowly but surely picking up these ideas. The decision in Prosecutor v Simic et al. on the Motion for a Judicial Assistance to be Provided by SFOR and Other (Van der Wilt) demonstrates that international criminal tribunals acknowledge that, as international institutions, they are called on to respect and promote the human rights of all individuals, including those charged with heinous crimes.

A related but somewhat different problematique is the question of ‘succession’ of an international organization in respect of the international obligations binding on its member states, by dint of the latter transferring relevant competences to the former. An early and very important case with regard to EU (at the time EEC) obligations under the General Agreement on Tariffs and Trade (GATT, now part of the WTO treaty instruments) was the European Court of Justice’s 1972 judgment in International Fruit Company v Produktschap voor Siergewassen, in which the Court held that by transferring external trade competencies the member states showed their wish to bind the EU to the GATT. In his case-note, Kuijper situates this judgment in the much wider context of succession/acceptance by the EU of international legal obligations of its member states, from international trade law to human rights and customary international law.

  • [1] ICJ, Reparations for injuries suffered in the service of the United Nations, Advisory Opinion, [1949]ICJ Rep 173-219. See Part 1 on legal status.
  • [2] See J. Wouters, E. Brems, S. Smis, and P. Schmitt, ‘Accountability for Human Rights Violations byInternational Organisations: Introductory Remarks’, in J. Wouters, E. Brems, S. Smis, and P. Schmitt(eds), Accountability for Human Rights Violations by International Organisations (Antwerp/Oxford,Intersentia 2010), pp. 1-18.
  • [3] T. Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford, Clarendon Press1989) pp. 94-6; H. Hannum, ‘The Status of the Universal Declaration of Human Rights in Nationaland International Law’, (1995-96) 25 Georgia Journal of International and Comparative Law 287-395;C. Tomuschat, Human Rights: Between Idealism and Realism Actors (Oxford, Oxford University Press2003) p. 4; T. Ahmed and I. de Jesus Butler, ‘The European Union and Human Rights: an InternationalLegal Perspective’, (2006) 17(4) European Journal of International Law 771-801; J. Wouters andC. Ryngaert, ‘Impact on the Process of the Formation of Customary International Law’, in M.T. Kammingaand M. Scheinin (eds), The Impact of Human Rights Law on General International Law (Oxford, OxfordUniversity Press 2008) pp. 111-31.
  • [4] UN General Assembly, Resolution A/217 (III), Universal Declaration of Human Rights, UN Doc.A/RES/3/217 A, 10 December 1948.
  • [5] See notably H. Hannun (n. 3), at p. 322; C. Tomuschat (n. 3), at p. 4.
  • [6] H.G. Schermers, ‘The Legal Bases of International Organization Action’, in R.-J. Dupuy, (ed.),Manuel sur les Organisations Internationals—A Handbook on International Organizations (Dordrecht/Boston/London, Martinus Nijhoff Publishers 1998) p. 402; C. Tomuschat, ‘International Law: Ensuringthe Survival of Mankind on the Eve of a New Century: General Course on Public International Law’,(2001) 281 Recueil des Cours de l’Academie de Droit International 134-5.
  • [7] See B. Simma and P. Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and GeneralPrinciples’, (1988-89) 12 Australian Yearbook of International Law 82, 102-8.
  • [8] Ibid., p. 105.
  • [9] B. Kondoch, ‘Human Rights Law and UN Peace Operations in Post-Conflict Situations’, inN.D. White and D. Klaasen (eds), The UN, Human Rights and Post-Conflict Situations (Manchester,Manchester University Press 2005) p. 36.
  • [10] H.G. Schermers (n. 6), p. 402.
 
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