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Abstract
This article investigates whether victims of torture and other serious human rights violations have an independent and enforceable right to reparation in international law (outside specific state-created remedies). It analyses whether international responsibility rules apply to individuals as they do to states and whether individual claims can be brought in domestic or foreign courts when no international remedy is available. By examining the different doctrinal positions in regards to individual rights and reparation, it concludes that it is incoherent to acknowledge the existence of substantive individual rights under general international law while contesting a corollary right to reparation. It further establishes that if it were considered that only states have the corresponding secondary rights, there would be clear gap in the human rights protection system. As the article illustrates, diplomatic protection is insufficient to protect individuals nowadays when international law recognises that states can breach the human rights of their own citizens. Likewise, even if it is recognised that in a limited number of cases the international community/third states can claim reparation on behalf of individuals, in practice the current legal framework cannot sufficiently secure their rights.
Notes
See for example, Roland Bank and Elke Schwager, ‘Is there a Substantive Right to Compensation for Individual Victims of Armed Conflicts against a State under International Law?’, German Yearbook of International Law 49 A (2006): 367–412; Andrew Clapham, ‘Non-State Actors’, in Postconflict Peace-Building: A Lexicon, ed. Vincent Chetail (Oxford: Oxford University Press, 2009), 200–12; Cordula Droege, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, Israel Law Review 40, no. 2 (2007), 310–55.
PCIJ, Chorzow Factory Case, 1928 P.C.I.J., Sr. A, No. 17, at 47.
Ibid.
Adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005.
Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report submitted by Mr Theo van Boven, Special Rapporteur, E/CN.4/Sub. 2/1993/8 of 2 July 1993, para. 42.
The International Court of Justice (ICJ) made clear in the Barcelona Traction case that a state has a discretionary right to protect its nationals but it is under no legal duty under international law to do so: ‘…within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal persons on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. … The State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease’, Barcelona Traction Co. Case (Second Phase), 1970 I.C.J. Rep., p. 3 at 44 (hereinafter Barcelona Traction). At the same time, international custom and general principles of law set limits on the conferral of nationality. This position is reflected in article 4 of the Draft Articles on Diplomatic Protection. See International Law Commission, Report on the work of its 58th Session, A/61/10 (2006) and Commentary to art. 4, in International Law Commission, Draft Articles on Diplomatic Protection with Commentaries (2006), paras 3–4.
Lassa Oppenheim, International Law: A Treatise, Vol. I: Peace (London, New York, Bombay, Calcutta and Madras: Longmans, Green, and Co., 1905).
Peter Malanczuk, Akehurst's Modern Introduction to International Law (London and New York: Routledge, 1997).
‘Judgment of the International Military Tribunal’, in The Trial of German Major War Criminals: Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22 (London: H.M. Stationery Office, 1950), 447.
For a discussion of the development of human rights law and the right to a remedy, see Dinah Shelton, Remedies in International Human Rights Law (Oxford: Oxford University Press, 2005), 1–37.
Wolfgang Friedmann, The Changing Structure of International Law (London: Stevens, 1964).
Edith Brown Weiss, ‘Invoking State Responsibility in the Twenty-First Century’, American Journal of International Law 96, no. 4 (2002): 798–816; Francisco Orrego Vicuna, ‘Individuals and Non-State Entities before International Courts and Tribunals’, Max Planck Yearbook of United Nations Law 5 (2001): 53–66.
For example, art. 8 Universal Declaration of Human Rights, GA Res. 217 A (III) of 10 December 1948; art. 2(3), arts 9(5) and 14(6) International Covenant on Civil and Political Rights (entry into force 23 March 1976); art. 6 International Convention on the Elimination of All Forms of Racial Discrimination (entry into force 4 January 1969); art. 39 Convention of the Rights of the Child (entry into force 2 September 1990); art. 14 Convention against Torture and other Cruel Inhuman and Degrading Treatment (entry into force 26 June 1987); and art. 75 of the Rome Statute for an International Criminal Court (entry into force 1 July 2002, UN Doc. A/CONF.183/9). It has also figured in regional instruments, e.g. the European Convention on Human Rights (entry into force 3 September 1953, arts 5(5), 13 and 41); the American Convention on Human Rights (entry into force 18 July 1978) (arts 25, 68 and 63(1)); the African Charter on Human and Peoples' Rights (entry into force 21 October 1986) (art. 21(2)). See also, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res. 40/34 of 29 November 1985; Declaration on the Protection of all Persons from Enforced Disappearance (art. 19), GA Res. 47/133 of 18 December 1992; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (Principle 20), recommended by Economic and Social Council resolution 1989/65 of 24 May 1989; and Declaration on the Elimination of Violence against Women, GA Res. 48/104 of 20 December 1993.
See REDRESS, Enforcement of Awards for Victims of Torture and Other International Crimes (London: The Redress Trust, 2006), http://www.redress.org/downloads/publications/master_enforcement%2030%20May%202006.pdf (accessed 4 April 2012), 11.
Reproduced in Report of the International Law Commission, 53rd Session (2001), UN Doc. A/56/10.
See Yearbook of the International Law Commission, 121, para. 70, Vol. II, Pt Two (1976).
Draft Articles on State Responsibility (DASR), Commentary to Article 40, para 7. The Commentaries to the DASR are reproduced in Report of the International Law Commission, 53rd Session.
Lutz Oette, ‘Bringing Justice to Victims’, in Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making, ed. Carla Ferstman, Mariana Goetz and Alan Stephens (Leiden and Boston: Martinus Nijhoff Publishers, 2009), 217–42, 225.
Paola Gaeta, ‘On What Conditions Can a State Be Held Responsible for Genocide?’, European Journal of International Law 18, no. 4 (2007): 631–48, 641.
ICTY Trial Chamber II in the judgement delivered on 10 December 1998, Prosecutor v. Furundzija, IT-95-17/1-T, at para. 141.
A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law: Its Rationale in the International Protection of Individual Rights (Cambridge: Cambridge University Press, 1983), 1.
There is a serious debate over the question of whether the exhaustion of local remedies rule is substantive or procedural or both. For a detailed analysis of the history, purpose and use of the rule of exhaustion of domestic remedies in general international law and international human rights law see Silvia D'Ascoli and Kathrin Scherr, ‘The Rule of Prior Exhaustion of Local Remedies in the International Law Doctrine and its Application in the Specific Context of Human Rights Protection’ (Fiesole: European University Institute, 2007). See also John Dugard, ‘Diplomatic Protection’, in The Law of International Responsibility, ed. James Crawford, Alain Pellet and Simon Olleson (Oxford: Oxford University Press, 2010), 1061–7.
Sir Hersch Lauterpacht, Recognition in International Law (Cambridge: Cambridge University Press, 1947), 438.
The notion in traditional diplomatic protection that the injury to the individual is an injury to the state itself has been criticised as an exaggeration. According to John Dugard, Special Rapporteur on Diplomatic Protection, even if ‘diplomatic protection is premised on a fiction, it is an important institution of customary international law which serves as a valuable instrument for the protection of the persons and property aliens’. Dugard, ‘Diplomatic Protection’, 1052.
‘By establishing and consenting to human rights limitations on their own sovereignty, states actually define, delimit, and contain those rights, thereby domesticating their use and affirming the authority of the state as the source from which such rights spring.’ Martti Koskenniemi, International Law (International Library of Essays in Law and Legal Theory) (Dartmouth: Aldershot, 1991), 406.
See part four.
Christian Tomuschat, ‘Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position under General International Law’, in State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights, ed. Albrecht Randelzhofer and Christian Tomuschat (The Hague, London and Boston: Martinus Nijhoff, 1999), 1–23.
Christian Tomuschat, Human Rights: Between Idealism and Realism (Oxford: Oxford University Press, 2003), 305.
On the initiative of the Japanese military, ‘comfort stations’ were set up and operated between 1930 and 1945, where an estimated 200,000 ‘comfort women’ were pressed into prostitution. For a discussion of the facts and the Japanese court rulings see Masahiro Igarashi, ‘Post-War Compensation Cases, Japanese Courts and International Law’, Japanese Annual of International Law 43 (2000): 45–82.
High Court Tokyo, So Shinto, 30 November 2000, analysed by Hideyuki Kasutani and Seigo Iwamoto, ‘Japan’, Yearbook of International Humanitarian Law 3 (2000): 544.
Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials who have Passed into the Polish Service, against the Polish Railways Administration), Advisory Opinion, PCIJ, Series B, No. 15, 17, 18, (1928), para. 37.
LaGrand (Germany v. United States of America), ICJ Reports 29 (2001), para. 77.
‘This Part is without prejudice to any right, arising from the international responsibility of a Sate, which may accrue directly to any person or entity other than a State’, article 32(2) DASR. See also Commentary to the DASR, Report of the International Law Commission, 53rd Session, paras 3–4.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 131 (2004), (Hereinafter Wall Opinion).
Wall Opinion, 198, paras 152–3.
Ibid.
Rainer Hofmann, ‘Victims of Violations of International Humanitarian Law: Do They Have an Individual Right to Reparation against States under International Law?’, in Völkerrecht als Wertordnung/Common Values in International Law: Festschrift für/Essays in Honour of Christian Tomuschat, ed. Pierre-Marie Depuy, Bardo Fassebender, Malcolm N. Shaw and Karl-Peter Sommermann (Kehl: N.P. Engel Verlag, 2006), 341–60; Rene Provost, International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press, 2005), 27 et seq.
Frits Kalshoven, ‘State Responsibility for Warlike Acts of the Armed Forces’, International and Comparative Law Quarterly 40 (1991): 827–58; Christopher Greenwood, ‘International Humanitarian Law (Law of War)’, in The Centennial of the First International Peace Conference, ed. Frits Kalshoven (The Hague: Kluwer Law International, 2000), 161–259, 250; Liesbeth Zegveld, ‘Remedies for Victims of Violations of International Humanitarian Law’, International Review of the Red Cross 85 (2003): 497–526, 506.
The report of the International Commission of Inquiry on Darfur states that even if art. 3 of the Hague Convention IV was not initially intended to provide compensation for individuals, it does so in the present day, as the emergence of human rights in international law has altered the concept of state responsibility. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 (25 January 2005), paras 593 et seq.
See for example, the Preamble of the UN Principles on Reparation and expert opinions by Frits Kalshoven, Eric David, Christopher Greenwood, in War and the Rights of Individuals, Renaissance of Individual Compensation, ed. Hisakazu Fujita, Isomi Suzuki and Kantato Nagano (Tokyo: Nippon Hyoron-sha, 1999), 39 et seq.
Wall Opinion, paras 154–9.
Ibid., para. 122.
Separate Opinion of Judge Higgins, Wall Opinion, paras 24–37.
Tomuschat, Human Rights, 250.
See, for example, Pisillo-Mazzeschi, ‘International Obligations to Provide for Reparation Claims’, in State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights, ed. Albrecht Randelzhofer and Christian Tomuschat (The Hague, London and Boston: Martinus Nijhoff, 1999), 149–72.
Ibid., 160–4.
Tomuschat, Human Rights, 296.
Series A, No. 260-B; Application No. 14556/89, ECHR (1993) 16 EHRR 440.
Christian Tomuschat, ‘Individuals’, in The Law of International Responsibility, ed. James Crawford, Alain Pellet and Simon Olleson (Oxford: Oxford University Press, 2010), 987.
The ECtHR has denied compensation when the victims are engaged in misconduct or organised crime. For example, in McCann v. United Kingdom, the court found it inappropriate to make an award because ‘the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar’. McCann v. United Kingdom (1995) 324 EurCtHR (Ser. A), (1996) 21 EHRR 97, at p. 62, para. 219.
Tomuschat, ‘Individuals’, 987.
Tomuschat, Human Rights, 306.
Tomuschat, ‘Individuals’, 988.
Shelton, Remedies, 56.
See, for example, Avena and other Mexican Nationals (Mexico v. United States of America), Judgement, ICJ Reports 12 (2004), para. 119.
For an analysis of national and international practice see Shelton, Remedies, 255–68.
James Crawford and Simon Olleson, ‘The Nature and Forms of International Responsibility’, in International Law, ed. Malcolm Evans, 3rd ed. (Oxford: Oxford University Press, 2010), 441–71, 467.
Commentary to the DASR, Chapter IV.E.
Shelton, Remedies, 56–8.
REDRESS, Enforcement of Awards for Victims of Torture and Other International Crimes, 42.
Ibid.
According to art. 48 of the DASR, in cases of serious breaches of erga omnes obligations any state could in principle espouse a claim on behalf of injured individuals. However, there is no international practice in this regard and it is not clear how such claims would relate to the practice of diplomatic protection. See more detailed discussion in part four.
See, for example, Pisillo-Mazzeschi, ‘International Obligations’, 171.
Robert McCorquodale, ‘The Individual in International Law’, in International Law, ed. Malcolm Evans, 3rd ed. (Oxford: Oxford University Press, 2010), 284–310.
Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal, Judgement 1933 PCIJ, Ser. A/B, No. 61, 208, 231.
East Timor Case (Portugal v. Australia), Judgement, ICJ Reports 1995, p. 90; General List No. 84.
Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal, 231.
In addition to McCorquodale, ‘Individual’, see for example, Albrecht Randelzhofer, ‘The Legal Position of the Individual under Present International Law’, in State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights, ed. Albrecht Randelzhofer and Christian Tomuschat (The Hague, London and Boston: Martinus Nijhoff, 1999), 231–42, 233–4.
Randelzhofer says that a closer reading of the judgement shows that the court is ‘of the opinion that this proposition is not confined to civil law, but typical of any legal order’. Randelzhofer, ‘Legal Position’, 234.
For example, Peter Kooijmans points out: ‘[I]n the East Timor case, the International Court of Justice explicitly said that the people of East Timor are indisputably entitled to the right of self-determination as a right erga omens. Actually the Court says here that entities which themselves have no right to bring a claim, like the people of East Timor, are entitled to a right which must be respected by everyone. […] If one has the primary right, however, one has also the secondary right to compensation if this primary right is not respected; this does not coincide, however, with the right to bring a claim as is clear from the East Timor case.’ See Discussion (Part 1), in Randelzhofer and Tomuschat, State Responsibility, 45.
East Timor Case, paras 36–37.
Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United states of America), ICJ Report 19 (1954).
East Timor Case, 102.
Dissenting Opinion of Judge Weeramantry, East Timor Case, 56.
Ibid.
Kooijmans goes further and proposes that a distinction between ‘legal personality’ and ‘subjectivity’ can be made based on this judgement: ‘If for arguments’ sake we assume that international legal personality (e.g. of a state or an international organization, like in the Reparation case) entails the capacity to bring a claim, then the lesson of the East Timor case is that the concepts of international legal personality and that of being a subject of international law are not by necessity identical or interchangeable.' See Discussion (Part 1) in Randelzhofer and Tomuschat, State Responsibility, 45.
Wall Opinion, paras 152–3.
Barcelona Traction, para. 33.
South West Africa, Second Phase, Judgement, ICJ Reports 6 (1966), para. 88. Judge Jessup who delivered a strong dissent was nevertheless disinclined to accept a general right to actio popularis.
Barcelona Traction, para. 91.
Article 48(2)(b) ILC Draft Articles on State Responsibility.
ILC Commentary to art. 48, para. 12.
Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgement of 19 December 2005, 45 ILM 562 (2006).
Ibid., para. 333.
Separate Opinion of Judge Simma, ibid., para. 37.
Iain Scobbie, ‘The Invocation of Responsibility for the Breach of Obligations under Peremptory Norms of General International Law’, European Journal of International Law 13, no. 5 (2002): 1201–20.
Annemarieke Vermeer-Künzli, ‘A Matter of Interest: Diplomatic Protection and State Responsibility Erga Omnes’, International and Comparative Law Quarterly 56 (2007): 553–81.
For a detailed analysis on erga omnes obligations and reparation see Annie Bird, ‘Third State Responsibilities for Human Rights Violations’, European Journal of International Law 21, no. 4 (2010): 883–900.
Crawford and Olleson, ‘International Responsibility’, 470.
See art. 33(2) and para. 233 of ILC Commentary.
Wall Opinion, 198, paras 152–3.
Prosecutor v. Furundzija, para. 155.
Victims' Compensation and Participation, Judges' Report of 13 September 2000, Appendix to the Letter from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2000/1063, 12.
UN General Assembly resolution 60/147 of 16 December 2005.
‘Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms.’ UN Principles on Victims' Reparation, preamble.
Tomuschat, ‘Individuals’, 988.
Chrozow Factory Case.
Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1973, at pp. 197–8.
Velásques Rodrígues v. Honduras, Compensatory Damages, Inter-American Court of Human Rights, Judgement of 21 July 1989, Series C No. 7, para. 25; The Mayagna (Sumo) Awas Tingni Community, Inter-American Court of Human Rights, Judgement of 31 August 2001, Series C No. 79, para. 163.
Wall Opinion, para. 152 et seq.
See above note 13.
See, for example, Velásquez Rodríguez Case, para. 174. See also Papamichalopoulos v. Greece, 36.
Jurisdiction of the Courts of Danzig, Advisory Opinion, PCIJ, Series B, No. 15, at 17.
LaGrand Case, para. 77.
Victims' Compensation and Participation, para. 22.
Prosecutor v. Furundzija, para. 155.