Human Rights and the Rise of International Organisations: The Logic of Sliding Scales in the Law International Responsabilité
Jan Wouters, Eva Brems, Accountability for Human Rights Violations by International Organizations (International Law 7), Intersentia: Antwerp, 2011, p. 55-12
61 Pages Posted: 12 Jun 2014
Date Written: June 6, 2014
This paper proposes a new approach to the law of international responsibility, as it applies to activities of international organisations and their member states. Part I addresses the question of whether international organizations are bound, under international law, to respect human rights. It shows that, while it would be possible to build a theory deriving the obligations of the international organization from the preexisting obligations of its member States, particularly those imposed under the human rights treaties to which these States are parties, this line of reasoning fails on practical grounds, as it would result in too important obstacles being imposed on international co-operation. In contrast, grounding the human rights obligations of international organizations on general public international law, independently of any commitments of their member States under human rights treaties, appears both feasible and compatible with the requirements of international co-operation.
Part II then explores the international responsibility of the member States of an international organization, where measures adopted by the latter result in a violation of human rights. In order to evaluate the emerging regime of State responsibility for the acts of international organizations of which it is a member, it considers the three moments which characterize such membership: it distinguishes (1) the initial attribution of competences to the international organization ; (2) the participation in the decision-making procedures within the organization ; and (3) the implementation, by its member States, of any acts adopted within the international organization. It puts forward the thesis that, while the international law of State responsibility has offered answers concerning whether a responsibility may exist at each of these moments, it has failed to consider their interrelationship. This segmented approach to State responsibility constitutes the main source of its insufficiencies. In its place, a ‘sliding scales’ theory of State responsibility is presented. According to this logic, the role of the State at any of the three junctures distinguished above should be evaluated by taking into account its role at the other junctures : in particular, the more a State retains influence on the decision-making process within the international organization, or the more it may obstruct implementation of the decisions of the organization, the easier it will be to justify the delegation of extensive powers to the international organization, even in circumstances where such a transfer of powers could result in the adoption by the international organization of measures which infringe upon human rights.
Part III then examines the mechanisms which would allow to hold international organizations accountable for any violations of human rights which they commit, or which they contribute to. Three such mechanisms are discussed in turn : self-regulation, accession of the international organization to treaty-based international regimes, and judicial control exercised by national courts. The respective strengths and weaknesses of each of these mechanisms are highlighted. On the basis of this review, the logic of sliding scales for the evaluation of State responsibility is expanded further to include the emergence of those mechanisms. It is argued that the standards used for evaluating the responsibility of the member States of international organizations for the acts of the latter should take into account whether or not accountability mechanisms have been set up ensuring that the organization will comply with any human rights standards equivalent to those imposed on the member States. This results in a reverse principle of proportionality : the more the international organization is subject to monitoring mechanisms, whether internal or external, the more it would be acceptable for States to transfer large competences to the organization and to renounce controlling the organization from within or blocking the implementation of any decisions adopted within the organization.
Keywords: International Organisations, Law of International Responsibility
Suggested Citation: Suggested Citation