CYIL 2015

VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW… in the context of military operations assumes that if “ liability rules exist, they are too varied and too heavily dependent on the individual mandate to automatically form an independent source of international law that is binding under international law for all … international organizations. ” 77 Regardless of this fact, even Schmalenbach admits (even only in the context of military activities) that the widespread practice of international organisations for compensating human rights violations constitutes sufficient basis for considering the obligation to compensate violations attributable to international organisation as “ a general principle of liability law of international organizations. The refusal to pay compensation to individuals unlawfully damaged through negligence or intent would therefore constitute a violation of international law. ” 78 3.2.2 Principles of international responsibility as basis for application of the right to reparation against international organisations As much as conventional norms or unilateral acts can be considered the preferred means of ensuring respect for human rights by international organisations, including the right to reparation (and liability in general), the corresponding practice can be described as inhomogeneous. This is regrettable, even though understandable, as application of traditionally state-centred human rights enshrined in written documents of international law in the context of international organisations constitutes a significant challenge, legally and politically. From the legal point of view there is another option to consider, which builds upon ideas and conclusions drawn in the first part of this study. Once established that a right to reparation exists under general international law, this conception should be applicable also to international organisations, as international organisations are also bound by customary international law. 79 Nevertheless, this would be a hasty conclusion. I derived the existence of a right to reparation as a corollary right from the principles of international responsibility applicable between States. Thus it must be explored whether principles of international responsibility of international organisations allow reaching the same conclusion. Settlement in the Course of Military Operations and International Administrations. International Peacekeeping: The Yearbook of International Peace Operations , 2006, Vol. 10, pp. 33-51, at p. 43. 77 SCHMALENBACH, Kirsten. Third Party Liability of International Organizations, p. 51. 78 Ibid. 79 The applicability of customary rules to international organisations was confirmed by the ICJ in the Advisory Opinion on the WHO – Egypt Agreement of 1951: “International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.” ( Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt , Advisory Opinion , ICJ Reports 1980, pp. 89-90, para. 37). This approach was taken also by the ILA Committee on the Accountability of International Organisations (ILA Committee on Accountability of International Organisations, Berlin Conference, Final Report, 2004, p. 18 and p. 20).

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