CYIL 2015

VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW… The very foundation of such a right under international law is constituted by basic principles of international responsibility, including the principle that every breach of international law entails the obligation to provide reparation. With regard to international organisations, the situation is ambiguous. They are not parties to the most important multilateral human rights treaties; thus the explicit provisions on the right to reparation contained there will not apply to them. International conventions still may constitute a basis for the right to reparation in various forms, for example as founding treaties of international organisations, in multi- and bilateral relations, establishing such a right explicitly or as part of the development of an internal liability system. However, the relevant practice in this regard is rather inconsistent, far from being unified and thus hardly being capable of constituting a basis of a general rule. Nevertheless, with regard to States I argued that such a right is based on fundamental principles of international responsibility, including the obligation to provide reparation. The obligation to provide reparation was already considered by the PCIJ as “a principle of international law, … even a general conception of law” , 85 highlighting it as one of the cornerstones of the current international law system, the enforcement of which relies, compared to municipal law, on the system of international responsibility. As such the concept is applicable also in the context of international organisations. Moreover, if the right to reparation is a part of customary international law, then it seems applicable mutatis mutandis also against international organisations by virtue of its customary nature. I admit that acceptance of my conclusions and arguments presumes the acceptance of a certain point of view on where the process of human rights permeating international law currently stands. It is clear that the views adopted here are rather progressive, and one may object that they carry the legal position beyond international law as it stands today, especially because the currently existing practice in the field can be regarded as insufficiently uniform to provide a satisfactory basis and argument. However, can we really expect at any point of time that such uniform and general practice will exist?This appears doubtful. What needs to be remembered is the great variety of international organisations with respect to their functions, activities, competences and other aspects. This, of course, has an impact on how (if at all) organisations recognize and adress their accountability, including for violations of individuals’ rights. Moreover, international organisations, as well as their Member States, are rather cautious when creating legal obligations for international organisations, especially obligations concerning the murky waters of their accountability under international law. Finally, the currently existing obstacles to implementation of international organisations‘ accountability for human rights violations virtually prevent the creation of the respective practice. If the United Nations refuses to respond to victims‘ claims (for example by establishing

85 PCIJ, Chórzow Factory Case (Claim for Indemnity, Merits), 13. September 1928, PCIJ Series A, No. 13, p. 29.

183