CYIL 2015

VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW… example Article 5 para. 5 ECHR, right to liberty and security), or they provide for a competence of the respective judicial mechanism to grant compensation, such as Article 41 ECHR, which allows the European Court of Human Rights to afford just satisfaction. Consequently, a question emerges whether, outside of its codification in international treaties or resolutions, there is a general rule of international law providing for such right. However, currently no common position among scholars exists in this regard. Different positions 20 based on a variety of arguments can be identified and shall therefore be discussed in the following. 2.1 No individuals’ rights under (general) international law Traditionally, only States were considered as wrongdoers, and applicable rules (for example, in the area of protection of aliens) only created rights and obligations between States. 21 Even in cases of injuries inflicted upon individuals, it was the home state which had the discretionary right to take on a loss on behalf of the individual. Consequently, the traditional approach denied individuals any right at the primary and secondary level and considered them merely as a beneficiary of the rules. Hence no individual right to reparation could exist in international law. It is almost obsolete to say that the application of such an approach to human rights violations under the current system of international law is outdated, mainly for two reasons. It does not correspond with the prevailing view in current theory and practice of international law, as it relies on the perception of individuals as objects of international law, neglecting the emergence of human rights in the post World War Two era. 22 It is also 20 For the different options forming a basis from which the right of victims to reparation can be derived, see also Manfred Nowak’s contribution: NOWAK, Manfred. The Right to Reparation of Victims of Gross Human Rights Violations, op.cit. , p. 305. Nowak considers as a possible source, besides the specific State obligations provided for in international instruments concerning particular gross violations of human rights treaties (such as the 1984 UNConvention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or the 1994 Inter-American Convention on the Forced Disappearance of Persons), also provisions in general human rights treaties, in concreto the obligation to provide victims with an effective domestic remedy and the power of international human rights courts to order the respondent Party to grant reparation to the victim in case a violation has been established. The last option mentioned by Nowak is the obligation of State Parties to ensure human rights. 21 PCIJ, The Mavrommatis Palestine Concessions , 30. August 1924, PCIJ Series A, No. 2, p. 12; VERDROSS, Alfred, SIMMA, Bruno. Universelles Völkerrecht: Theorie und Praxis , 3rd ed., Duncker & Humblot, 1984, § 47. 22 The phenomenon of human rights permeating international law includes both “human-rightism” as the process of influencing the international law directly through the explicit inclusion of human rights norms into international agreements or indirectly through becoming a common “feature” of modern international law-making and application, and “humanization” in the sense of a continuing shift of international law’s focus from the state to the individual. Cf. MERON, Theodor. The humanization of international law . Boston: Martinus Nijhoff, 2006), but also KAMMINGA, Menno T., SCHEININ, Martin. The impact of human rights law on general international law . New York: Oxford University Press, 2009; PRONTO, Arnold N. ‘Human-Rightism’ and the Development of General International Law. Leiden Journal of International Law, 2007, Vol. 20, No. 4, p. 754. But see e.g. Pellet , who views

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