CYIL Vol. 6, 2015

MARTIN FAIX CYIL 6 ȍ2015Ȏ shows. This provision explicitly enshrines the right of victims to obtain reparation from the perpetrator , i.e. an individual. 65 It may be argued that discussions towards recognizing individual rights also in such traditional areas of interstate legal relations as international humanitarian law seem to confirm the overall shift to the victims’ perspective, including application of the right to reparation outside of its traditional understanding and limits. Whether this also applies in the context of international organisations requires exploration of the following central question: what constitutes the basis under international law for broadening the scope of application of such a construct to international organisations and what are the possible limits of such an attempt? 3.2 Towards a right to reparation against international organisations – on what basis? 3.2.1 International obligations created by the organisation itself Before we approach the question of whether the right of reparation under customary international law can be applied also against international organisations, it appears reasonable to explore whether it can be also based on conventional norms, as is established with regard to States. As a matter of principle this is not only possible but even desirable. Compared to international custom conventional norms make it easier to establish whether an obligation to provide reparation exists and what its scope of application is. Moreover, control over implementation of conventional norms is often vested into the hands of (sometimes highly) effective mechanisms. Therefore the almost ideal option seems to be international organisations becoming treaty parties to main human rights instruments providing for a right to reparation. 66 The practical problem occurring in this regard is simply that a vast majority of multilateral human rights treaties, including the major ones, are only open for accession and ratification by States. The envisaged EU accession 67 to the ECHR 68 continues to constitute an exception. 65 Article 75 para. 2 ICC Statutue provides: “The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.” 66 It may be added that human rights obligations resulting from treaties concluded by Member States of an international organisation are not to be considered as binding to that organisation, as in my understanding there is no sufficient legal basis in current international law for such a conclusion. This certainly creates the risk of Member States evading their obligations by acting through international organisations; but this risk can be mitigated by way of responsibility of Member States for their own activities in the framework of the international organisation. 67 Cf. Protocol No. 14 to the European Convention of Human Rights (1 June 2010) amending the ECHR, providing now explicitly for the possibility of accession of the European Union to the ECHR. On the issue see for example JACQUE, Jean Paul. The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms. Common Market Law Review , 2011, Vol. 48, pp. 995-1023. 68 European Convention for the Protection of Human Rights and Fundamental Freedoms, Roma, 4 November 1950.

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