CYIL 2015

MARTIN FAIX CYIL 6 ȍ2015Ȏ and appear reasonable. The second option starts apparently from the premise that the right to reparation is (conventionally) guaranteed in both the substantive dimension, translating into the obligation of States to provide redress in the form of restitution, compensation, rehabilitation, satisfaction or potentially of non-repetition, and also the procedural dimension, which is understood as part of the duty to provide an effective domestic remedy. 49 In such a case it would, however, be hardly possible to derive the general right to reparation from its partial, procedural aspect – the right to remedy. The first option seems to be favoured for example by the Human Rights Committee, which confirmed with regard to Art. 2 para. 3 lit. a ICCPR that the obligation to provide an effective remedy encompasses the legal duty of the State to pay compensation (if necessary). 50 However, even this approach does not provide us with a suitable solution. The current understanding of the obligation to provide effective remedy is that it requires the States to provide for compensation under domestic law, thus not allowing recognition of an individual right to reparation under international law . 51 Leaving Article 2 para. 3 lit. a ICCPR aside, one could think of Article 13 ECHR, which seems to provide for a direct right of individuals to effective remedy under international law. In my view even here there are two main obstacles which prevent the possibility of considering it as a source of a general right to reparation: its accessory nature under the ECHR system 52 and its exceptionality when compared to provisions on the right to effective remedy contained in other international conventions. Consequently, the right to effective remedy does not appear to constitute a suitable basis from which individuals’ right to reparation under customary international law can be derived. 2.5 Individual right to reparation as corollary secondary right All the positions explored above, as a result, deny the existence of a general right of individuals to reparation under international law or recognize it only under specific conditions, mainly when there is explicit will of States, as expressed, for example, in the form of conventions. However the position which holds that breaches of human rights give rise to an individual right to reparation also under general international law appears as convincing. Its very foundation is constituted by the interdependency 49 VAN BOVEN, Theo. Victims’ rights. In: Max Planck Encyclopaedia of Public International Law (August 2007), Oxford University Press, paras. 4 and 6. 50 For example with regard to Art. 2 para. 3 lit. a ICCPR, the Human Rights Committee confirmed that the obligation to provide an effective remedy encompasses the legal duty of the state to pay compensation (if necessary); cf. Albert Wilson vs. Philippines , Communication No. 868/1999 of 11 November 2003, UN Doc. CCPR/C/79/D/868/1999 (2003). 51 The fact that domestic rules are enacted to implement the international ones does not influence this conclusion in any way. 52 Cf. GRABENWARTER, Christoph. Europ äische Menschenrechtskonvention. München: C.H. Beck, 2008, p. 390, no. 161.

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