CYIL 2015

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VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW…

Nevertheless, the studies focus mainly on two issues: first, lack of clear institutional

mechanisms available to individuals against acts of international organisations (remedy

gap) and, second, shortcomings of or hindrances in access to currently existing

mechanisms

(such as jurisdictional immunities of international organisations)

affecting effective implementation of individuals’ right to remedy. The approach of this

contribution is different, as it will not focus on specific shortcomings or gaps arising

out of the relevant practice, but it will search for a feasible theoretical construction

connecting general principles of responsibility, effective human rights protection and

victims’ perspective in the context of international organisations. In other words,

I attempt to delineate possible parameters for transferring the

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reparation principle from the inter-state level to the relation between the wrongdoing

international organisation and the individual victim.

I will proceed in two steps. The first issue to be addressed is the individual’s

right to reparation under international law. Here it will be argued that the existence

of an individual right to reparation under international human rights conventions

is largely accepted, confirming individuals as possible beneficiaries of the respective

States’ obligation under international law. It is, however, questionable whether such

a right also exists outside of human rights treaties, i.e. under

general

international

law. In this regard a broad variety of positions and arguments can be identified,

making the existence of such a right, its contours and parameters rather ambiguous.

Consequently, these various positions will be explored. I shall argue that, based on

the basic principles of international responsibility, a general individual secondary

right to reparation exists, as under international human rights law it is corollary to

substantial, primary rights.

In the second part, I will explore the possible extension of such a conclusion to

the context of international organisations, focusing on the options available under

international law on which a right to reparation against international organisations

can be based. In the first, preliminary step, the role of international conventions and

unilateral acts will be explored. In the second step the transferability of conclusions

FREEDMAN, Rosa. UN Immunity or Impunity? A Human Rights Based Challenge

. European Journal

of International Law

, 2014, Vol. 25, No. 1, pp. 239-254; SCHMALENBACH, Kirsten. Die Haftung

Internationaler Organisationen im Rahmen von Militäreinsätzen und Territorialverwaltungen,

Frankfurt am Main: Peter Lang, 2004; SCHMALENBACH, Kirsten. Third Party Liability of

International Organizations: A Study on Claim Settlement in the Course of Military Operations

and International Administrations.

International Peacekeeping: The Yearbook of International Peace

Operations

, 2006, Vol. 10, pp. 33-51; On the question of accountability of international organisations

towards third parties in general: HIRSCH, Mosche.

The Responsibility of International Organizations

Toward Third Parties: Some Basic Principles.

Dordrecht: Martinus Nijhoff, 1995.

For an overall analysis of remedies available against international organisations, see for example:

WELLENS, Karel.

Remedies against international organisations

, Cambridge: Cambridge University

Press 2002, 316 p.; SAROOSHI, Dan.

Remedies and Responsibility for the Actions of International

Organizations

, Brill – Nijhoff, 2014, 752 p.