193 / 464
179
VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW…
in the context of military operations assumes that if “
liability rules exist, they are too
varied and too heavily dependent on the individual mandate to automatically form an
independent source of international law that is binding under international law for all …
international organizations.
”
77
Regardless of this fact, even
Schmalenbach
admits (even
only in the context of military activities) that the widespread practice of international
organisations for compensating human rights violations constitutes sufficient basis
for considering the obligation to compensate violations attributable to international
organisation as “
a general principle of liability law of international organizations. The
refusal to pay compensation to individuals unlawfully damaged through negligence or
intent would therefore constitute a violation of international law.
”
78
3.2.2 Principles of international responsibility as basis for application
of the right to reparation against international organisations
As much as conventional norms or unilateral acts can be considered the preferred
means of ensuring respect for human rights by international organisations, including
the right to reparation (and liability in general), the corresponding practice can
be described as inhomogeneous. This is regrettable, even though understandable,
as application of traditionally state-centred human rights enshrined in written
documents of international law in the context of international organisations
constitutes a significant challenge, legally and politically.
From the legal point of view there is another option to consider, which builds
upon ideas and conclusions drawn in the first part of this study. Once established that
a right to reparation exists under general international law, this conception should
be applicable also to international organisations, as international organisations
are also bound by customary international law.
79
Nevertheless, this would be a
hasty conclusion. I derived the existence of a right to reparation as a corollary right
from the
principles of international responsibility
applicable between States. Thus it
must be explored whether principles of international responsibility
of international
organisations
allow reaching the same conclusion.
Settlement in the Course of Military Operations and International Administrations.
International
Peacekeeping: The Yearbook of International Peace Operations
, 2006, Vol. 10, pp. 33-51, at p. 43.
77
SCHMALENBACH, Kirsten. Third Party Liability of International Organizations, p. 51.
78
Ibid.
79
The applicability of customary rules to international organisations was confirmed by the ICJ in the
Advisory Opinion on the WHO – Egypt Agreement
of 1951:
“International organizations are subjects of
international law and, as such, are bound by any obligations incumbent upon them under general rules of
international law, under their constitutions or under international agreements to which they are parties.”
(
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt
,
Advisory Opinion
,
ICJ Reports 1980, pp. 89-90, para. 37). This approach was taken also by the ILA Committee on
the Accountability of International Organisations (ILA Committee on Accountability of International
Organisations, Berlin Conference, Final Report, 2004, p. 18 and p. 20).