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VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW…
human rights obligations under international law, and as separate legal entities they
(may) also commit violations of such obligations, which raises the issue of their
accountability and available remedies.
One could (rightfully) object that this statement is oversimplified and needs
more detailed explanation, as it touches upon controversial issues, such as the legal
basis of human rights obligations of international organisations, their sources and
scope of application, or the general question of whether the state-centred concept
of human rights law can be applied to international organisations at all.
4
I am well
aware that all these issues continue to cause serious headaches for international
lawyers.
5
Nevertheless, they will not be explored in this contribution in more detail
simply because I argue that their ambiguity does not impact the validity of the
statement made above. The existence of violations of human rights attributable to
international organisations is (unfortunately) simply a fact, for which international
practice provides more than sufficient support.
6
It is well established in international law that every breach involves the obligation to
make reparation
7
for it
8
to the injured party. It is without any doubt that the secondary
obligation is owed to other states and, in specific cases, also to the international
community as a whole (peremptory norms are obligations
erga omnes
). But is the
individual victim also one who is entitled to claim reparation, and is this concept
transferrable to and applicable to cases when the violating entity is an international
4
Cf.
FAIX, Martin. Are international organizations bound by human rights obligations?
Czech Yearbook
of Public and Private International Law
, 2014, Vol. 5, pp. 267-290.
5
The continuing institutionalisation of interstate relations has been an issue for example for the European
Court of Human Rights for some thirty years,
cf.
JANIK, Cornelia. Die EMRK und internationale
Organisationen.
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
, 2010, Vol. 70, pp. 127-179.
6
The potential to violate human rights is as broad as the spectrum of activities, which international
organisations carry out.
Cf.
JANIK, Cornelia.
Die Bindung internationaler Organisationen an internationale
Menschenrechtsstandards
, Tübingen: Mohr Siebeck, 2012 (esp. the chapter „Menschenrechtliches
Verletzungspotenzial internationaler Organisationen“, pp. 27
et seq.
).
7
For the purposes of the present contribution, the term “reparation” covers measures which seek to
eliminate all the harmful consequences of a violation of rules of international human rights law and
to re-establish the situation that would have existed if the violation had not occurred. Reparation
shall take the form of restitution, compensation, satisfaction and guarantees and assurances of non-
repetition, either singly or in combination. This understanding of reparation can be traced back to the
Chorzów Factory
case, in which the Permanent Court of International Justice held: “
Reparation must,
as far as possible, wipe out all the consequences of the illegal act and re-establish the situation, which would,
in all probability, have existed if that act had not been committed.
” (
Chórzow Factory Case
(Merits), 13.
September 1928, PCIJ Series A, No. 17, p. 47). It also has to be added that reparation is not confined
only to international responsibility but also to another accountability regime under international law,
namely that of international liability. Liability results from the occurrence of a damage or injury but
does not presuppose existence of a wrongful act or omission. In consequence the responsibility and
liability regimen are today applicable not only to States, but also to international organisations.
8
PCIJ,
Chorzów Factory (Jurisdiction)
(Germany v Poland), 26. July 1927, PCIJ Series A, No. 9, p. 21.
See also ILC’s Commentary to Article 31 DARS, UN Doc. A/56/10, pp. 223
et seq
.