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and appear reasonable. The second option starts apparently from the premise that the
right to reparation is (conventionally) guaranteed in both the substantive dimension,
translating into the obligation of States to provide redress in the form of restitution,
compensation, rehabilitation, satisfaction or potentially of non-repetition, and also
the procedural dimension, which is understood as part of the duty to provide an
effective domestic remedy.
49
In such a case it would, however, be hardly possible to
derive the general right to reparation from its partial, procedural aspect – the right
to remedy.
The first option seems to be favoured for example by the Human Rights
Committee, which confirmed with regard to Art. 2 para. 3 lit. a ICCPR that the
obligation to provide an effective remedy encompasses the legal duty of the State to
pay compensation (if necessary).
50
However, even this approach does not provide
us with a suitable solution. The current understanding of the obligation to provide
effective remedy is that it requires the States to provide for compensation under
domestic
law, thus not allowing recognition of an individual right to reparation
under
international law
.
51
Leaving Article 2 para. 3 lit. a ICCPR aside, one could
think of Article 13 ECHR, which seems to provide for a direct right of individuals
to effective remedy under international law. In my view even here there are two main
obstacles which prevent the possibility of considering it as a source of a general right
to reparation: its accessory nature under the ECHR system
52
and its exceptionality
when compared to provisions on the right to effective remedy contained in other
international conventions. Consequently, the right to effective remedy does not
appear to constitute a suitable basis from which individuals’ right to reparation under
customary international law can be derived.
2.5 Individual right to reparation as corollary secondary right
All the positions explored above, as a result, deny the existence of a general right
of individuals to reparation under international law or recognize it only under specific
conditions, mainly when there is explicit will of States, as expressed, for example, in
the form of conventions. However the position which holds that breaches of human
rights give rise to an individual right to reparation also under general international
law appears as convincing. Its very foundation is constituted by the interdependency
49
VAN BOVEN, Theo. Victims’ rights. In:
Max Planck Encyclopaedia of Public International Law
(August
2007), Oxford University Press, paras. 4 and 6.
50
For example with regard to Art. 2 para. 3 lit. a ICCPR, the Human Rights Committee confirmed that
the obligation to provide an effective remedy encompasses the legal duty of the state to pay compensation
(if necessary);
cf. Albert Wilson vs. Philippines
, Communication No. 868/1999 of 11 November 2003,
UN Doc. CCPR/C/79/D/868/1999 (2003).
51
The fact that domestic rules are enacted to implement the international ones does not influence this
conclusion in any way.
52
Cf.
GRABENWARTER, Christoph.
Europ
äische Menschenrechtskonvention. München: C.H. Beck,
2008, p. 390, no. 161.