CYIL 2015

174

MARTIN FAIX

CYIL 6 ȍ2015Ȏ

Further support is provided by another two documents. First is the

UN Principles

on Victims’ Reparation

, a document adopted by the UN General Assembly in 2005.

Its preamble emphasizes in paragraph 7 that

“the Basic Principles and Guidelines

contained herein do not entail new international or domestic legal obligations but identify

mechanisms, modalities, procedures and methods for the implementation of existing legal

obligations under international human rights law and international humanitarian law”.

Even from these words it follows that the Principles contained therein cannot be

understood as seeking a codification of a general right for reparation for individuals;

the adoption of the document reflects the recognition of the existence of such a

rule under customary international law. The other UN document, the

Report of the

International Commission of Inquiry on Darfur

, goes even further by stating that

“whenever a gross breach of human rights is committed … customary international law

… imposes an obligation … to make reparation (including compensation) for the damage

made.”

Support for the approach claiming existence of a general right to reparation for

individuals is also provided by the

Draft Articles on State Responsibility

, which seem

at least to not contradict such a conclusion. Despite the fact that the Draft Articles

generally address principles governing responsibility between States, Article 33(2)

states that Part II of the Draft Articles (“Content of the international responsibility of

a State”)

“is without prejudice to any right, arising from the international responsibility of

a State, which may accrue directly to any person or entity other than a State”

From this

provision it is apparent that, even if the Draft Articles do not regulate the secondary

right of reparation of individuals explicitly, neither do they question or exclude the

possibility of its existence.

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross

Violations of International Human Rights Law and Serious Violations of International Humanitarian

Law (GA Res. A/RES/60/147 adopted on 16 December 2005). In the same year the then United

Nations Commission on Human Rights endorsed the Updated Set of principles for the protection

and promotion of human rights through action to combat impunity (Impunity Principles) (E/

CN.4/2005/102/Add.1).

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General

pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, para. 598.

The commentary on Article 33 furthermore states that:

“When an obligation of reparation exists

towards a State, reparation does not necessarily accrue to that State’s benefit. For instance, a State’s

responsibility for the breach of an obligation under a treaty concerning the protection of human rights

may exist towards all the other parties to the treaty, but the individuals concerned should be regarded

as the ultimate beneficiaries and in that sense as the holders of the relevant rights.”

(International Law

Commission, Commentary on Article 33 of the

Draft Articles on State Responsibility of States for

Internationally Wrongful Acts

, Report of the International Law Commission, Fifty-third session,

2001, Supplement No. 10 (A/56/10), p. 234, para 3.

Cf.

ŠTURMA, Pavel. Odškodňování jako příklad konstruktivní neurčitosti a dynamické povahy

současného mezinárodního práva. In: ŠTURMA, Pavel

et al., Odškodňování v mezinárodním právu

Praha: Univerzita Karlova v Praze, Právnická fakulta, 2013, p. 10.