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VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW…
example Article 5 para. 5 ECHR, right to liberty and security), or they provide for
a competence of the respective judicial mechanism to grant compensation, such as
Article 41 ECHR, which allows the European Court of Human Rights to afford just
satisfaction. Consequently, a question emerges whether, outside of its codification
in international treaties or resolutions, there is a
general
rule of international law
providing for such right. However, currently no common position among scholars
exists in this regard. Different positions
20
based on a variety of arguments can be
identified and shall therefore be discussed in the following.
2.1 No individuals’ rights under (general) international law
Traditionally, only States were considered as wrongdoers, and applicable rules
(for example, in the area of protection of aliens) only created rights and obligations
between States.
21
Even in cases of injuries inflicted upon individuals, it was the home
state which had the discretionary right to take on a loss on behalf of the individual.
Consequently, the traditional approach denied individuals
any
right at the primary
and secondary level and considered them merely as a beneficiary of the rules. Hence
no individual right to reparation could exist in international law. It is almost obsolete
to say that the application of such an approach to human rights violations under the
current system of international law is outdated, mainly for two reasons. It does not
correspond with the prevailing view in current theory and practice of international
law, as it relies on the perception of individuals as objects of international law,
neglecting the emergence of human rights in the post World War Two era.
22
It is also
20
For the different options forming a basis from which the right of victims to reparation can be derived,
see also
Manfred Nowak’s
contribution: NOWAK, Manfred. The Right to Reparation of Victims of Gross
Human Rights Violations,
op.cit.
, p. 305.
Nowak
considers as a possible source, besides the specific State
obligations provided for in international instruments concerning particular gross violations of human
rights treaties (such as the 1984 UNConvention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment or the 1994 Inter-American Convention on the Forced Disappearance of
Persons), also provisions in general human rights treaties,
in concreto
the obligation to provide victims with
an effective domestic remedy and the power of international human rights courts to order the respondent
Party to grant reparation to the victim in case a violation has been established. The last option mentioned
by
Nowak
is the obligation of State Parties to ensure human rights.
21
PCIJ,
The Mavrommatis Palestine Concessions
, 30. August 1924, PCIJ Series A, No. 2, p. 12;
VERDROSS, Alfred, SIMMA, Bruno.
Universelles Völkerrecht: Theorie und Praxis
, 3rd ed., Duncker &
Humblot, 1984, § 47.
22
The phenomenon of human rights permeating international law includes both “human-rightism” as
the process of influencing the international law directly through the explicit inclusion of human rights
norms into international agreements or indirectly through becoming a common “feature” of modern
international law-making and application, and “humanization” in the sense of a continuing shift of
international law’s focus from the state to the individual.
Cf.
MERON, Theodor.
The humanization of
international law
. Boston: Martinus Nijhoff, 2006), but also KAMMINGA, Menno T., SCHEININ,
Martin.
The impact of human rights law on general international law
. New York: Oxford University
Press, 2009; PRONTO, Arnold N. ‘Human-Rightism’ and the Development of General International
Law.
Leiden Journal of International Law,
2007, Vol. 20, No. 4, p. 754. But see
e.g.
Pellet
, who views