CYIL 2015

MARTIN FAIX CYIL 6 ȍ2015Ȏ the harming State to make reparation to the victim (thus creating an international obligation), and this obligation depends on the initiative of the individual whose rights were violated and who consequently raised a complaint before the respective international mechanism. Nevertheless, Pisillo-Mazesschi considers both provisions as regional particularism– as a part of highly developed, but still regional conventional law. 37 Even if one would consider them as reflecting (regional) international custom, their existence is not sufficient to conclude that a general right to reparation exists under international law against States ( a fortiori against international organisations). Tomuschat , who recognizes the content and importance of both provisions as the most advanced rules on the subject adopts a similar position, but argues that from the existing relevant jurisprudence of both courts it is not possible to draw “definitive conclusions. ” 38 Tomuschat seems to be convinced that individuals do not enjoy a “full” right to reparation under both these conventional norms; therefore it is hardly possible that customary international law goes beyond them by establishing a general right to reparation. 39 2.3 No capacity of individuals to bring claims at the international level Some commentators agree on the existence of an obligation of the wrong doing State to provide reparation to other States and also to individuals, but deny its existence under general international law on the basis of individuals’ lack of capacity to claim rights under international law. In accordance with this view, individuals do not possess such capacity and the individual right to reparation can be claimed on the international plane only through States ( e.g. through diplomatic protection), unless States decide to establish specific procedures or grant the capacity to individuals, for example by way of setting claims commissions. 40 Such a distinction evokes the traditional distinction in the German doctrine of international law between “Rechtsfähigkeit” (capacity to bear rights and duties) and “Handlungsfähigkeit” (capacity to act) under international law. 41 Nevertheless, it is not obvious why the existence of an individual right (to reparation) should be dependent on the procedural capacity to bring it before a forum. The obligation to provide reparation emanates 37 Ibid. , p. 171. Stanislava Hýbnerová confirms this, arguing even that such a right simply does not exist, neither in conventional nor in customary form; see HÝBNEROVÁ, Stanislava. Compensation in international law of human rights , in: ŠTURMA, P. et al. , Odškodňování v mezinárodním právu . Praha: Univerzita Karlova, 2013, p. 99; Veronika Bílková states more carefully that it is “less clear whether a right to reparation has emerged under customary human rights law and, if so, whether it would result from any violations of human rights or just the most serious ones.” (BÍLKOVÁ, Veronika, Towards a General Right to Reparation for Internally Displaced Persons? Czech Yearbook of International Law , 2011, Vol. 2, pp. 95-112, at p. 102). 38 TOMUSCHAT, Christian. Individuals. In: CRAWFORD, James, PELLET, Alain, OLLESON, Simon (eds.), The Law of International Responsibility, Oxford: Oxford University Press, 2010, p. 987. 39 TOMUSCHAT, Christian. Human Rights: Between Idealism and Realism . op.cit. , p. 371. 40 On this position and further arguments against it, see ECHEVERRIA, Gabriela, op.cit., pp. 706-709. 41 Cf. HERDEGEN, Matthias. Völkerrecht. München: C.H. Beck, 5. Auflage, 2006, p. 64.

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