CYIL 2015

MARTIN FAIX CYIL 6 ȍ2015Ȏ made with regard to the existence of the right to reparation under general international law against States will be analysed, focusing on the issues of international responsibility as the possible foundation for such construction. Finally, I attempt to argue that such a right under current international law can be theoretically constructed, although the relevant practice, however, seems currently, for various reasons, to be insufficient to confirm its existence. 2. Individuals’ right to reparation as part of customary international law? A duty of States to provide reparation for the harm caused is an accepted principle of international law. 15 With regard to violations of individual rights, it can be argued that the same principle applies, 16 as can be derived, for example, from numerous international instruments 17 or decisions of international courts. 18 International human rights conventions and declarative documents often contain norms explicitly granting a right to reparation 19 in the context of a specific right (for 15 The PCIJ stated in the Chorzów Factory case: “It is a principle of international law that the breach of an engagement involves an obligation to make reparation … Reparation therefore is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself.” ( Chorzów Factory Case (Jurisdiction), 26. July 1927, PCIJ Series A, No. 9, p. 21). The Draft Articles on State Responsibility provide that “the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act” (Draft Articles on State Responsibility, Article 31). 16 Such a conclusion would arguably not be valid if one would consider human rights as a self-contained regime to which rules and principles of general international law are (partially or fully) not applicable. Such an approach is to be refused, as it was also refused by the ILA Committee on International Human Rights Law and Practice , which was given the task of preparing a report on the relationship between general international law and international human rights law. The Committee decided to follow the “reconciliation” approach, i.e. trying to reconcile these two branches of law with each other. See KAMMINGA, Menno T., SCHEININ, Martin. The impact of human rights law on general international law . New York: Oxford University Press, 2009, pp. 1-2. 17 A victims’ right to reparation is a well founded concept in international law, cf. ECHEVERRIA, Gabriela. Do Victims of Torture and Other Serious Human Rights Violations Have an Independent and Enforceable Right to Reparation? The International Journal of Human Rights , June 2012, Vol. 16, No. 5, pp. 698-716; NOWAK, Manfred. The Right to Reparation of Victims of Gross Human Rights Violations, op.cit. , p. 304; BASSIOUNI, M. Cherif, International Recognition of Victims’ Rights. Human Rights Law Review, 2006, Vol. 6, pp. 203-279, at p. 213. 18 For example the Inter-American Court of Human Rights on several occasions invoked the general principle of State responsibility when deciding on compensation on the basis of Article 63 ACHR; see for example Velásques Rodr í gues v. Honduras, Compensatory Damages , Series C, No. 7, para. 25; The Mayagna (Sumo) Awas Tingni Community , Series C, No. 79, para. 163; Las Palmeras Case (Reparation) , Series C, No. 96, para. 37 (cases as cited in SCHWAGER, Elke. The Right to Compensation for Victims of an Armed Conflict. In: Chinese Journal of International Law , 2005, Vol. 4, No. 2, pp. 417 439, at p. 428). 19 Cf. BLANK, Robert, SCHWAGER, Elke. Is there a Substantive Right to Compensation for Individual Victims of Armed Conflicts against a State under International Law? German Yearbook of International Law , 2006, Vol. 46, pp. 367-412, at pp. 399-401.

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