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MARTIN FAIX
CYIL 6 ȍ2015Ȏ
made with regard to the existence of the right to reparation under general international
law against States will be analysed, focusing on the issues of international responsibility
as the possible foundation for such construction. Finally, I attempt to argue that such
a right under current international law can be theoretically constructed, although the
relevant practice, however, seems currently, for various reasons, to be insufficient to
confirm its existence.
2. Individuals’ right to reparation as part of customary international law?
A duty of
States
to provide reparation for the harm caused is an accepted
principle of international law.
15
With regard to violations of individual rights, it
can be argued that the same principle applies,
16
as can be derived, for example,
from numerous international instruments
17
or decisions of international courts.
18
International human rights conventions and declarative documents often contain
norms explicitly granting a right to reparation
19
in the context of a specific right (for
15
The PCIJ stated in the
Chorzów Factory
case:
“It is a principle of international law that the breach
of an engagement involves an obligation to make reparation … Reparation therefore is the indispensable
complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention
itself.”
(
Chorzów Factory Case
(Jurisdiction), 26. July 1927, PCIJ Series A, No. 9, p. 21). The Draft
Articles on State Responsibility provide that
“the responsible State is under an obligation to make full
reparation for the injury caused by the internationally wrongful act”
(Draft Articles on State Responsibility,
Article 31).
16
Such a conclusion would arguably not be valid if one would consider human rights as a self-contained
regime to which rules and principles of general international law are (partially or fully) not applicable.
Such an approach is to be refused, as it was also refused by the
ILA Committee on International Human
Rights Law and Practice
, which was given the task of preparing a report on the relationship between
general international law and international human rights law. The Committee decided to follow
the “reconciliation” approach, i.e. trying to reconcile these two branches of law with each other. See
KAMMINGA, Menno T., SCHEININ, Martin.
The impact of human rights law on general international
law
. New York: Oxford University Press, 2009, pp. 1-2.
17
A victims’ right to reparation is a well founded concept in international law,
cf.
ECHEVERRIA,
Gabriela. Do Victims of Torture and Other Serious Human Rights Violations Have an Independent
and Enforceable Right to Reparation?
The International Journal of Human Rights
, June 2012, Vol.
16,
No. 5, pp. 698-716; NOWAK, Manfred. The Right to Reparation of Victims of Gross Human Rights
Violations,
op.cit.
, p. 304; BASSIOUNI, M. Cherif, International Recognition of Victims’ Rights.
Human Rights Law
Review, 2006, Vol. 6, pp. 203-279, at p. 213.
18
For example the Inter-American Court of Human Rights on several occasions invoked the general
principle of State responsibility when deciding on compensation on the basis of Article 63 ACHR;
see for example
Velásques Rodr
í
gues v. Honduras, Compensatory Damages
, Series C, No. 7, para. 25;
The
Mayagna (Sumo) Awas Tingni Community
, Series C, No. 79, para. 163;
Las Palmeras Case (Reparation)
,
Series C, No. 96, para. 37 (cases as cited in SCHWAGER, Elke. The Right to Compensation for
Victims of an Armed Conflict. In:
Chinese Journal of International Law
, 2005, Vol. 4, No. 2, pp. 417-
439, at p. 428).
19
Cf.
BLANK, Robert, SCHWAGER, Elke. Is there a Substantive Right to Compensation for Individual
Victims of Armed Conflicts against a State under International Law?
German Yearbook of International
Law
, 2006, Vol. 46, pp. 367-412, at pp. 399-401.