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VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW…
It seems therefore plausible to conclude that under international human rights
law every primary right is inevitably connected with the secondary obligation (and
corresponding right) to reparation as a corollary right, and this connection relies on
and is governed by the principles of international responsibility. Such a right can exist
as an explicit conventional norm as a result of the respective free will and consent
of States, and/or it can exist under customary international law by virtue of human
rights guaranteed under general international law. In other words, if we admit the
existence of customary international human rights norms, we must also admit the
existence of a corresponding individual right to reparation, which then shares its
origin with the primary right in general international law.
It is interesting to add that
Orakhelashvili
seems to consider (at least in cases
when individual rights of
ius cogens
status were violated) the obligation to provide
reparation as a
peremptory
norm. He not only accepts that individuals have a right
to reparation, but it follows from the
ius cogens
concept that, if the particular right
violated is of peremptory character, then its enforcement is outside of the disposition
of States, and thus the right to reparation is equally of
ius cogens
character.
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However,
the acquisition of
ius cogens
character requires that a respective consensus exists in
the international community, on the basis of which the particular norm can be
elevated into such status. The consensus also has to be substantiated and confirmed
by relevant international practice. I am therefore not convinced that the general right
to reparation can be considered as sharing the peremptory character of a primary
norm, the violation of which gives rise to it.
3. A right to reparation against international organisations?
3.1 Some preliminary issues
It is without any doubt that an obligation to provide reparation for human rights
violations exists among states. As shown in the previous chapter, also victims are
beneficiaries of such an obligation and have a corresponding right under international
law, even outside of conventionally established regimes. The question to be addressed
in this part is not anymore that of who is beneficiary of a right to reparation, but
that of what is the entity owing the corresponding obligation. It shall be thus asked
whether the concept of an individual right to reparation against states also applies in
relations against
international organisations
.
International law currently already contains norms which oblige non-state
actors to provide reparation. Such norms can be found, for example, in the field
of international humanitarian law or in international criminal law.
64
In the latter
field the trend is clearly visible, as for example Article 75 of the Rome Statute
63
ORAKHELASHVILI, Alexander. Peremptory Norms and Reparation for the Wrongful Acts.
Baltic
Yearbook of International Law
, 2003, Vol. 3, pp. 19-57, esp. pp. 27-32.
64
SCHWAGER, Elke.
Ius bello durante et bello confecto
. Berlin: Duncker and Humblot, 2008, pp. 170 -176.