CYIL 2015

183

VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW…

The very foundation of such a right under international law is constituted by basic

principles of international responsibility, including the principle that every breach of

international law entails the obligation to provide reparation.

With regard to international organisations, the situation is ambiguous. They

are not parties to the most important multilateral human rights treaties; thus the

explicit provisions on the right to reparation contained there will not apply to them.

International conventions still may constitute a basis for the right to reparation in

various forms, for example as founding treaties of international organisations, in

multi- and bilateral relations, establishing such a right explicitly or as part of the

development of an internal liability system. However, the relevant practice in this

regard is rather inconsistent, far from being unified and thus hardly being capable

of constituting a basis of a general rule. Nevertheless, with regard to States I argued

that such a right is based on fundamental principles of international responsibility,

including the obligation to provide reparation. The obligation to provide reparation

was already considered by the PCIJ as

“a principle of international law, … even a

general conception of law”

highlighting it as one of the cornerstones of the current

international law system, the enforcement of which relies, compared to municipal

law, on the system of international responsibility. As such the concept is applicable

also in the context of international organisations. Moreover, if the right to reparation

is a part of customary international law, then it seems applicable

mutatis mutandis

also against international organisations by virtue of its customary nature.

I admit that acceptance of my conclusions and arguments presumes the acceptance

of a certain point of view on where the process of human rights permeating international

law currently stands. It is clear that the views adopted here are rather progressive, and

one may object that they carry the legal position beyond international law as it stands

today, especially because the currently existing practice in the field can be regarded as

insufficiently uniform to provide a satisfactory basis and argument. However, can we

really expect at any point of time that such uniform and general practice will exist?This

appears doubtful. What needs to be remembered is the great variety of international

organisations with respect to their functions, activities, competences and other aspects.

This, of course, has an impact on how (if at all) organisations recognize and adress their

accountability, including for violations of individuals’ rights. Moreover, international

organisations, as well as their Member States, are rather cautious when creating legal

obligations for international organisations, especially obligations concerning the

murky waters of their accountability under international law. Finally, the currently

existing obstacles to implementation of international organisations‘ accountability

for human rights violations virtually prevent the creation of the respective practice. If

the United Nations refuses to respond to victims‘ claims (for example by establishing

PCIJ,

Chórzow Factory Case

(Claim for Indemnity, Merits), 13. September 1928, PCIJ Series A,

No. 13, p. 29.