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VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW…
as belonging to that group of entities to which the obligation of reparation under the
responsibility regimen of international organisations is owed. In principle nothing
speaks against relying on the conclusion made in the first part of this contribution in
this regard. Taking into consideration the object and purpose of human rights norms
and their character, as well as the general trend of strengthening the victims’ position
in current international law, the question has to be answered in the affirmative.
Support for this argument provides a view into the Commentary to the Draft
Articles on Responsibility of International Organisations (DARIO). Article 31 para. 1
DARIO reiterates the
Chorzów Factory
principle by stating that
“The responsible
international organization is under an obligation to make full reparation for the injury
caused by the internationally wrongful act.”
Article 33 DARIO, following the wording
of Article 33 of the
Draft Articles on Responsibility of States
, limits the personal scope of
entities towards which the responsibility consequences regulated in Part III DARIO
are owed to States, other international organisations and the international community
as a whole. Important is the second paragraph of Article 33, which states that this
limitation does not mean that obligations entailed by an internationally wrongful
act do not arise towards persons or entities
other
than States and/or international
organisations. It simply means that DARIO does not regulate this issue. The ILC
explained this in the Commentary to DARIO by giving specific examples:
“one
significant area in which rights accrue to persons other than States or organizations is that
of breaches by international organizations of their obligations under international law
concerning employment. Another area is that of breaches committed by peacekeeping forces
and affecting individuals. The consequences of these breaches with regard to individuals,
as stated in paragraph (1), are not covered by the present draft articles.
”
82
The view that international organisations are under the obligation to provide
reparation and that individuals enjoy the corresponding right has been recognized
also by the ILA in the context of reparation for victims of armed conflicts. Article 5
of the ILA Resolution 2/2010 includes international organisations explicitly as a
“responsible party”, and Article 6 (Right to Reparation) stipulates that “
Victims of
armed conflict have a right to reparation from the responsible parties.
”
83
Of course,
the resolution concerns rights of victims of armed conflict; nevertheless, taking
into account the protection of individuals as a basic common denominator of
international human rights and international humanitarian law, there is no reason
why international organisations should not be regarded as an international entity
with the duty to provide reparation also in the context of human rights. Moreover,
in the area of human rights the possibility for an individual to obtain reparation in
82
ILC, Commentary to Article 33, Draft articles on the responsibility of international organizations,
with commentaries, adopted by the International Law Commission at its sixty-third session, in 2011,
and submitted to the General Assembly as a part of the Commission’s report covering the work of that
session (A/66/10), para. 5.
83
International Law Association, Resolution No. 2/2010, Reparation for Victims of Armed Conflict.