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170
MARTIN FAIX
CYIL 6 ȍ2015Ȏ
the harming State to make reparation to the victim (thus creating an international
obligation), and this obligation depends on the initiative of the
individual
whose
rights were violated and who consequently raised a complaint before the respective
international mechanism. Nevertheless,
Pisillo-Mazesschi
considers both provisions
as regional particularism– as a part of highly developed, but still regional conventional
law.
37
Even if one would consider them as reflecting (regional) international custom,
their existence is not sufficient to conclude that a
general
right to reparation exists
under international law against States (
a fortiori
against international organisations).
Tomuschat
, who recognizes the content and importance of both provisions as the
most advanced rules on the subject adopts a similar position, but argues that from
the existing relevant jurisprudence of both courts it is not possible to draw
“definitive
conclusions.
”
38
Tomuschat
seems to be convinced that individuals do not enjoy a
“full” right to reparation under both these conventional norms; therefore it is hardly
possible that customary international law goes beyond them by establishing a general
right to reparation.
39
2.3 No capacity of individuals to bring claims at the international level
Some commentators agree on the existence of an obligation of the wrong doing
State to provide reparation to other States and also to individuals, but deny its
existence under general international law on the basis of individuals’ lack of
capacity
to claim rights
under international law. In accordance with this view, individuals do
not possess such capacity and the individual right to reparation can be claimed on the
international plane only through States (
e.g.
through diplomatic protection), unless
States decide to establish specific procedures or grant the capacity to individuals,
for example by way of setting claims commissions.
40
Such a distinction evokes
the traditional distinction in the German doctrine of international law between
“Rechtsfähigkeit” (capacity to bear rights and duties) and “Handlungsfähigkeit”
(capacity to act) under international law.
41
Nevertheless, it is not obvious why the
existence of an individual right (to reparation) should be dependent on the procedural
capacity to bring it before a forum. The obligation to provide reparation emanates
37
Ibid.
, p. 171.
Stanislava Hýbnerová
confirms this, arguing even that such a right simply does not exist,
neither in conventional nor in customary form; see HÝBNEROVÁ, Stanislava. Compensation in
international law of human rights
,
in: ŠTURMA, P.
et al.
,
Odškodňování v mezinárodním právu
. Praha:
Univerzita Karlova, 2013, p. 99;
Veronika Bílková
states more carefully that it is
“less clear whether a right
to reparation has emerged under customary human rights law and, if so, whether it would result from any
violations of human rights or just the most serious ones.”
(BÍLKOVÁ, Veronika, Towards a General Right
to Reparation for Internally Displaced Persons?
Czech Yearbook of International Law
, 2011, Vol. 2,
pp. 95-112, at p. 102).
38
TOMUSCHAT, Christian. Individuals. In: CRAWFORD, James, PELLET, Alain, OLLESON, Simon
(eds.), The Law of International Responsibility, Oxford: Oxford University Press, 2010, p. 987.
39
TOMUSCHAT, Christian.
Human Rights: Between Idealism and Realism
.
op.cit.
, p. 371.
40
On this position and further arguments against it, see ECHEVERRIA, Gabriela,
op.cit.,
pp. 706-709.
41
Cf.
HERDEGEN, Matthias.
Völkerrecht.
München: C.H. Beck, 5. Auflage, 2006, p. 64.