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MARTIN FAIX
CYIL 6 ȍ2015Ȏ
shows. This provision explicitly enshrines the right of victims to obtain reparation
from the
perpetrator
, i.e. an individual.
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It may be argued that discussions towards
recognizing individual rights also in such traditional areas of interstate legal relations
as international humanitarian law seem to confirm the overall shift to the victims’
perspective, including application of the right to reparation outside of its traditional
understanding and limits. Whether this also applies in the context of international
organisations requires exploration of the following central question: what constitutes the
basis under international law for broadening the scope of application of such a construct
to international organisations and what are the possible limits of such an attempt?
3.2 Towards a right to reparation against international organisations –
on what basis?
3.2.1 International obligations created by the organisation itself
Before we approach the question of whether the right of reparation under
customary
international law can be applied also against international organisations, it
appears reasonable to explore whether it can be also based on conventional norms, as
is established with regard to States. As a matter of principle this is not only possible
but even desirable. Compared to international custom conventional norms make
it easier to establish whether an obligation to provide reparation exists and what
its scope of application is. Moreover, control over implementation of conventional
norms is often vested into the hands of (sometimes highly) effective mechanisms.
Therefore the almost ideal option seems to be international organisations becoming
treaty parties to main human rights instruments providing for a right to reparation.
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The practical problem occurring in this regard is simply that a vast majority of
multilateral human rights treaties, including the major ones, are only open for
accession and ratification by States. The envisaged EU accession
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to the ECHR
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continues to constitute an exception.
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Article 75 para. 2 ICC Statutue provides:
“The Court may make an order directly against a convicted
person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and
rehabilitation.”
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It may be added that human rights obligations resulting from
treaties concluded by Member States
of an international organisation are not to be considered as binding to that organisation, as in my
understanding there is no sufficient legal basis in current international law for such a conclusion. This
certainly creates the risk of Member States evading their obligations by acting through international
organisations; but this risk can be mitigated by way of responsibility of Member States for their own
activities in the framework of the international organisation.
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Cf.
Protocol No. 14 to the European Convention of Human Rights (1 June 2010) amending the ECHR,
providing now explicitly for the possibility of accession of the European Union to the ECHR. On the issue
see for example JACQUE, Jean Paul. The Accession of the European Union to the European Convention on
Human Rights and Fundamental Freedoms.
Common Market Law Review
, 2011, Vol. 48, pp. 995-1023.
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European Convention for the Protection of Human Rights and Fundamental Freedoms, Roma,
4 November 1950.