183 / 464
169
VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW…
this obligation from general international law and not from any specific provision
of a conventional nature, as it cites the
Chorzów Factory case
, thus transferring the
interstate responsibility principles to the relation state – individual (victim).
30
2.2 Right to reparation only as a specifically established secondary right
While the traditional approach denied the international personality of individuals,
some scholars recognize the existence of individual primary rights and reiterate the
obligation to provide reparation, but refuse the application of this principle as a
general principle in favour of individuals – with the exception of regimes specifically
established by treaty and/or customary law.
31
This leads to the question of whether
and to what extent the conventional norms provide a basis or reflect customary
international law.
Pisillo-Mazesschi
takes the position that, despite the existence of norms
establishing the right to reparation in most important human rights treaties, the
differences between them (in terms of their scope of application and content) do not
permit one to consider them as forming uniform practice and therefore a sufficient
basis of a customary international law rule.
32
With regard to the two provisions,
33
Article 41 ECHR
34
and Article 63 (1) ACHR,
35
which seem to establish an individual
right
to reparation directly under international law and within the framework of
the international legal order, he comes to the same conclusion.
36
Both provisions
provide for a possibility that the respective international court directly requires
Advisory Opinion, ICJ Reports 2004, para. 152-153,
cf.
especially para. 153: “
The Court considers that
Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all
natural or legal persons having suffered any form of material damage as a result of the wall’s construction.”
30
Ibid.
; see also: SCHWAGER, Elke. The Right to Compensation for Victims of an Armed Conflict.
Chinese Journal of International Law
, 2005, Vol. 4, No. 2, pp. 417-439, at p. 429.
31
Cf.
PISILLO-MAZESCCHI, Riccardo. International Obligations to Provide for Reparation Claims?,
in: RANDELZHOFER, Albrecht, TOMUSCHAT, Christian (eds.),
State Responsibility and the
Individual: Reparation in Instances of Grave Violations of Human Rights
, The Hague: Martinus Nijhoff
Publishers, 1999, pp. 149-173.
32
Ibid.
, p. 164.
33
Besides these two provisions, one could name also Art. 27 of the Protocol to the African Charter on
Human and People’s Rights on the Establishment of an African Court on Human and People’s Rights,
10 July 1998, according to which the Court has to make appropriate orders to remedy the violation,
including the payment of fair compensation or reparation.
34
Article 41 ECHR stipulates that the ECtHR
“If the Court finds that there has been a violation of the
Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows
only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
35
Article 63 para 1 states that the Court shall
“rule, if appropriate, that the consequences of the measure or
situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid
to the injured party.”
; see also Inter-Am.Ct.H.R.,
Velasquez Rodriguez v Honduras
, Judgment of July 29,
1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988).
36
PISILLO-MAZESCCHI, Riccardo. International Obligations to Provide for Reparation Claims?,
op.cit.
, pp. 170-171.