185 / 464
171
VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW…
from the breach of a substantive right, not from the availability of mechanisms to
claim its injury.
42
Such a requirement should thus be objected to similarly as was
the requirement of “Deliktsfähigkeit” (delictual capacity).
43
Whereas it makes sense
to explore the capacity to act with regard to the wrongdoing entity,
44
it appears
obsolete for the victim, regardless of the fact of whether the victim is a State or a
non-State entity. Consequently, a violation of individual rights induces international
responsibility, including the obligation to provide reparation, even in cases when the
individual is not able to claim it in its own capacity.
45
This was clearly confirmed also
by the ICJ in the
LaGrand Case
.
46
2.4 General right to reparation as part of the right to effective remedy?
One could ask whether a general right to reparation could be derived from
the right to effective remedy, as it is enshrined in some international human rights
conventions and documents, for example in Article 13 ECHR, Article 8 Universal
Declaration ofHumanRights,
47
Article 2 para. 3 lit. a ICCPRor Article 6 International
Convention on the Elimination of All Forms of Racial Discrimination.
48
Such an attempt however appears problematic. First, in my view there is a certain
structural ambiguity in the interrelation between the notions “right to remedy” and
“right to reparation” and also ambiguity in the notion of “reparation” as such. Is the
obligation to provide reparation a part of the right to effective remedy, or
vice versa
;
i.e. is the obligation to provide effective domestic remedy a procedural part of States’
obligation to provide reparation? It seems that both ways of thinking are possible
42
Such an assumption runs contrary to the current understanding of the
Chorzów Factory
principle,
which the ILC interpreted as follows: “
The general obligation of reparation is formulated … as the
immediate corollary of a State’s responsibility, i.e., as an obligation of the responsible State resulting from
the breach.
[Report of the International Law Commission, UN Doc. A/56/10, Article 31 (Reparation),
p. 224, para. 4].
43
This term denotes the specific capacity of both the injuring and the injured party to violate international
rights and obligations and to be a victim of such violations. Such a proposal was refused, for example,
by the ILC, see Yearbook of the ILC 1971 Vol. II Part 1, p. 224.
44
This might be problematic (and is being denied), for example, in the case of failed states.
45
RANDELZHOFER, Albrecht. The Legal Position of the Individual under Present International
Law, 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, p. 231, 234; SCHRÖDER, Meinhard. Verantwortlichkeit, Völkerstrafrecht,
Streitbeilegung und Sanktionen. In: VITZTHUM, Wolfgang Graf von, PROELß, Alexander (Hrsg.),
Völkerrecht
. Berlin/Boston: De Gruyter, 6. Auflage, 2013, p. 529; STAMMLER, Philipp.
Der Anspruch
von Kriegsopfern auf Schadensersatz
. Berlin: Duncker and Humblot, 2009, p. 155.
46
ICJ,
LaGrand Case
(Germany v. United States of America), Judgment, ICJ Reports 2001, pp. 466
et
seq.
, paras. 77-78.
47
UN GA Res. 217 A (III) of 10 December 1948.
48
This path seems to follow
Bank
and
Schwager
; see BANK, Roland, SCHWAGER, Elke. Right to
Compensation for Victims of Armed Conflicts.
German Yearbook of International Law
, 2006, No. 49,
pp. 367-412, esp. pp. 401-403.