CYIL 2015

VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW… International agreements are a common tool used by international organisations when establishing relations with third parties, and international organisations are free 69 to include in such treaties human rights commitments, including explicit provisions on reparation for victims in cases of breaches of individuals’ rights. However, in practice international organisations are rather reluctant to do so, even in fields in which their potential to violate human rights and the capability of doing so is particularly significant, for example military operations. In the course of military operations typically so-called SOFAs (Status of Forces Agreements) are concluded, i.e. agreements regulating the status and conduct of activities on the territory of the host state and, among other things, also settlement of disputes and handling of claims. By the insertion of human rights provisions such treaties could serve as a possible basis from which a right to reparation could be derived. However, when looking for example at the treaty practice of the European Union, it becomes clear that no such case has occurred yet. 70 International agreements concluded by international organisations thus constitute a possible, although in practice (not surprisingly) sparely, used option. The most important treaty for international organisations is their constituent document (with related documents), 71 which may contain obligations imposed on the organisation by its Member States, including a human rights catalogue. 72 69 Of course due regard has to be paid to constraints typical for international organisations, most importantly the principle of speciality. As the ICJ explained in its advisory opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 66, para. 25), international organisations “do not, unlike States, possess a general competence. International organisations are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.” Another obstacle for binding an international organisation to human rights treaties may be a lack of capacity to accede human rights treaties due to the functional nature of the particular organisation. 70 In the course of Operation Atalanta, transfer agreements solely confirm the respect for human rights, thus reiterating human rights commitments of the organisation. See the Exchange of Letters between the EU and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer (O.J. L 79, 25 March 2009, 49) and the Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the Republic of Seychelles and for their Treatment after such Transfer (O.J. L 315, 2 December 2009, 37). On human rights in EU’s military operations see: FAIX, Martin. Application of Human Rights to EU Military Operations: Mission Impossible? Slovak Yearbook of International Law, 2013, Vol. IV, No. 1, pp. 28-48. 71 Charter of Fundamental Rights of the European Union, O.J. C 83, 30 March 2010, p. 839. Related documents are, however, usually rather unlikely to contain obligations in the area of human rights. Documents such as the EU Charter of Fundamental Rights are truly exceptional. 72 From human rights incorporated into the founding treaty it would be then possible to also derive the secondary right to reparation, as mentioned above in the context of agreements concluded with third parties.

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