CYIL Vol. 6, 2015

MARTIN FAIX CYIL 6 ȍ2015Ȏ incompatible with the concept of human rights as rights inhering under international law not to States, but directly to individuals. Nevertheless, for example, Christian Tomuschat comes to the same conclusion as the traditional approach, even though with different argumentative underpinning and only with regard to the existence of individuals’ rights (including the right to reparation) under general international law. 23 He argues that the existence of a right depends on availability of a procedure to enforce it under international law. 24 Tomuschat thus recognizes the existence of conventionally guaranteed individual rights but considers them as “true human rights” only if the respective international mechanism also establishes a procedural remedy; and, as there is no established universal human rights remedy, the concept of reparation in his view “ has not yet materialized as a rule of positive international law ”. 25 In response to Tomuschat ’ s argumentation, Echeverria rightly notes that there is evidence for the possibility to consider individuals as bearers of rights under conventional and customary international law. 26 In the famous LaGrand Case , the ICJ stated that Article 36 para. 1 of the Vienna Convention on Consular Relations “ creates individual right s”, thus reaffirming that individuals can be considered as holders of international rights despite the lack of their general international standing. 27 Moreover, the PCIJ already stated in the Jurisdiction of the Courts for Danzig that “ it cannot be disputed that the very object of an international agreement, according to the intention of the contracting parties, may be the adaptation by the parties of some definite rules creating individual rights and obligations ”. 28 The ICJ, almost eighty years later, derived in its advisory opinion concerning the Legal Consequences of the Construction of aWall in the Occupied Palestinian Territory under the doctrine of international state responsibility the obligation of the State of Israel to pay compensation to all natural and legal persons – without the intermediary of a state. 29 It also seems that the Court derived “human-rightism” rather critically, arguing against the idea of human rights being something special and autonomous (PELLET, Allain. Human Rightism and International law. Italian Yearbook of International Law, 2000, Vol. 10, pp. 3-16). 23 TOMUSCHAT, Christian. Human Rights: Between Idealism and Realism , Oxford University Press, 3rd. ed., 371. 24 TOMUSCHAT, Christian. Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position under General International Law, in: RANDELZHOFER, Albrecht, TOMUSCHAT, Christian (eds.), State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights , The Hague: Martinus Nijhoff Publishers, 1999, pp. 1-23. 25 Ibid., p. 374. 26 ECHEVERRIA, Gabriele, Do Victims of Torture and Other Serious Human Rights Violations Have an Independent and Enforceable Right to Reparation?, op.cit. 27 ICJ, LaGrand Case (Germany v. United States of America), Judgment, ICJ Reports 2001, pp. 466 et seq ., paras. 77-78. 28 PCIJ, Jurisdiction of the Courts of Danzig , Advisory Opinion, 3. March 1928, PCIJ Series B, No. 15, pp. 17-18. 29 ICJ, Legal Consequences of the Construction of aWall in the Occupied Palestinian Territory (Wall Opinion) ,

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