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The Law of International Responsibility edited by Crawford, James; Pellet, Alain; Olleson, Simon; Parlett, Kate

Part V The Implementation of International Responsibility, Ch.67 Individuals

Christian Tomuschat

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 19 June 2019

Subject(s):
Responsibility of individuals — Aliens, treatment — Armed conflict

(p. 985) Chapter 67  Individuals

Protection of foreigners

Aliens enjoy protection by virtue of a body of traditional rules of international law (the so-called ‘minimum standard’) which in our time have been more or less absorbed, substantively speaking, by the regime of human rights, with the exception of those protections relating to property. However, these customary rules do not confer rights directly on the interested party. When the State on whose territory they reside infringes those rules, it is the rights of the victim’s State of nationality which are prejudiced. Notwithstanding certain criticisms, this interpretation has been maintained in the ILC’s 2006 Articles on Diplomatic Protection.1 Therefore, despite having suffered harm in fact, a foreigner cannot—from the point of view of aliens’ law—be considered an injured person in the legal sense.

The protection of individuals through human rights

The position is otherwise from the point of view of human rights. Following the appearance of the concept of human rights, the protection of the individual by the State of nationality has been overshadowed. Given that human rights essentially protect individuals against their States of nationality, there is some paradox in the State, a potential violator of human rights, simultaneously protecting them at the international level.

(p. 986) (a)  Conventional regimes

Many human rights treaties permit the individual to commence infringement proceedings of some kind. However, as a general rule, the availability of such actions requires either a special declaration by the respondent State, or the ratification of a special protocol. Originally, a petition to the European Commission of Human Rights under the European Convention of Human Rights was dependent on the making of a declaration which many States were hesitant to make. The United Kingdom accepted the right of individual petition only in 1966, France in 1981 and Turkey in 1987. Since 1 November 1998, the acceptance of the right of individual petition, which, following the abolition of the European Commission, is made directly to the European Court of Human Rights, is obligatory for all States parties to the Convention. Under the system of the International Covenant on Civil and Political Rights, an individual communication can be directed against States which have ratified the (first) Optional Protocol to the Covenant. In the case of the Convention on the Elimination of All Forms of Discrimination against Women, such a remedy was introduced 20 years after its adoption.2 Individual petition forms also an integral part of the system of the American Convention on Human Rights.3

An individual who has access in this manner to some court, commission, or committee has a subjective status under international law which is independent of the will of the national government. If the body before which the individual brings a complaint concludes that a violation exists, that violation is officially acknowledged. This acknowledgement in itself already constitutes at least partial reparation. Particularly when the harm caused by State interference is intangible in kind, the acknowledgement may be held to erase all negative consequences resulting from the breach.

Often, however, a violation of human rights will have caused material damage. A mere verbal declaration may in these circumstances not provide sufficient reparation. In this regard, international human rights treaties offer only fragmentary responses. A few conventional provisions stipulate that the individual injured has the right to reparation directly by virtue of the provisions. This meaning can also be given to article 5(5) of the European Convention on Human Rights, as well as to article 9(5) of the International Covenant on Civil and Political Rights. Thus, in Germany, Austria, and Switzerland, the highest courts have given direct effect to these provisions, even in the absence of national legislation regulating the details of implementation.

In the majority of cases, however, the treaties specify that the States parties are obliged to guarantee to the victims of an infringement the right to be indemnified. The right to reparation is not conferred on the individual directly under international law in such cases but only indirectly, on the basis of national law. Such a provision can be found in article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination,4 according to which any person affected by such discrimination has the right to seek ‘just and adequate reparation or satisfaction for any damage suffered …’ from national tribunals, and in article 14(1) of the 1984 UN Convention Against Torture.5 Under the International Covenant on Civil and Political Rights, such an obligation to seek reparation by means of national legislation is provided for in the case of convictions (p. 987) occurring as a result of miscarriages of justice.6 The International Covenant on Economic, Social and Cultural Rights contains no clause to this effect. Most other treaties are equally mute on this issue. As discussed further below, national legislation may independently confer on victims a right to reparation, without being specifically required to do so by international law.

Certain treaties provide that the tribunals charged with overseeing their implementation may afford reparation to victims of a rights violation. An example is article 41 of the European Convention on Human Rights. It provides, as a residual matter—if the internal law of the State concerned allows the negative consequences of the illegal behaviour affecting the victim to be erased only partially—that the European Court of Human Rights shall ‘if necessary, afford just satisfaction’ to the injured party. Initially, the European Court was of the opinion that article 41 empowered it only to award financial indemnification to the victim, even if in the reasons for its judgment it explained that the finding of a violation obliged the State responsible to restore the status quo as far as possible. Nonetheless, since its judgment in Papamichalopoulos v Greece,7 affirmed in Brumarescu v Romania,8 the Court no longer hesitates to rule that the State responsible for a violation of its obligations is bound to restore to the interested party the goods illegally taken from him. However, by invoking the words ‘if necessary’, the European Court lays claim to a broad margin of appreciation. Thus, it is of the view that in a vast group of cases the official acknowledgement of a violation constitutes sufficient reparation. Moreover, the Court refuses to afford indemnification if, in its view, the victim was engaged in reprehensible activity.9 In these circumstances, it is difficult to maintain that the individual holds a true right to reparation under article 41 of the European Convention.

The same ambiguity exists in relation to article 63 of the American Convention on Human Rights. This provision stipulates that if the Inter-American Court of Human Rights concludes that a violation of the rights of the person concerned has occurred, it ‘shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated’. Otherwise, as concerns damage caused by the illegal measure, the Court must equally order ‘that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party’, but only ‘if appropriate’. Although the Court has pronounced itself unreservedly in favour of the victim’s right to reparation in all cases of violation,10 the jurisprudence is not yet sufficiently consolidated for definitive conclusions to be drawn from it.

The boldest jurisprudence has been developed by the Human Rights Committee under the International Covenant on Civil and Political Rights. Basing itself on article 2(3)(a) of the Covenant, according to which the States parties undertake to guarantee to all victims of violations of their rights an ‘effective remedy’, the Committee has, from the outset of receiving communications under the Optional Protocol, held that there exists an obligation on the part of the responsible State to cease its conduct and to accord an indemnification to the victim. The high point of this jurisprudence was a series of cases concerning Jamaica and Trinidad and Tobago where the Committee observed that persons sentenced (p. 988) to death according to a defective procedure and awaiting their execution should be freed. However, two elements must be taken into consideration. On the one hand, the ‘views’ of the Committee of Human Rights are not decisions with binding effect, but constitute recommendations or suggestions. And this is the way in which States parties to the Covenant view them. The record of respect for and compliance with the Committee’s ‘views’ is distressingly poor. Despite the great efforts of the Committee to give real effectiveness to its ‘views’, a large number of States do not even respond to its requests for information.

(b)  General international law

Given that conventional regimes abstain from establishing complete regimes of responsibility in relation to rights of the victims which are clearly defined, it seems natural to borrow responses from general international law. It is easy to argue that, just as international organizations have been integrated into the network of general rules of international law since being acknowledged as subjects of international law, individuals should benefit from the same advantage by virtue of their entry into the international juridical order. Following this line of reasoning, it is conceivable that all of the secondary rights provided for in ARSIWA extend to individuals. In effect, a project initially developed within the Sub-Commission for the Promotion and Protection of Human Rights11 sought to introduce perfect equality between injured States and injured individuals. After a number of years of discussion in the course of which Western States in particular expressed reservations, the draft was finally approved by the General Assembly (Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law).12 However, modifications to the text during the drafting process make clear that this is ultimately a collection of recommendations, and not a codification of existing customary law.

Indeed, strong arguments militate against conceiving of the Basic Principles and Guidelines as a set of binding rules. Often, violations of humanitarian law and human rights accompany armed conflicts between two States. Accordingly, such occurrences may give rise to thousands of claims, and the number could easily amount to millions in a case where, for example, prohibited weapons were used. If, in such circumstances, all persons affected had an entitlement to a right to reparation under international law individually, the settlement of the consequences of armed conflicts by a peace treaty would be impossible. Traditionally, peace treaties provide for the payment of lump sums by way of indemnifi cation, distribution of such sums being undertaken by the victim State. Of course, it is always permissible for the parties to derogate, by way of a special treaty, from this somewhat crude model, taking into account the specifics of the damage suffered. In particular, it is relatively simple to restore to the former owner property which has been illegally taken from him. Nevertheless, it remains the case that an individualization of the settlement of consequences of an armed conflict would block the re-establishment of peace.

As far as mass violations committed by dictatorial regimes are concerned, it is equally clear that individuals cannot hope for complete reparation of the harm suffered. After the (p. 989) end of the apartheid regime in South Africa, a reparation programme would have had to include as beneficiaries all those persons who had for decades suffered the worst discrimination imaginable. However, the benefits of financial value provided under such a programme would have had to be paid in large part by these same persons, that is to say, by all taxpayers. By the same token, a poor country such as Guatemala cannot count on external aid to implement the recommendations made by the Truth Commission (Comisión para el Esclarecimiento Histórico) in 1999 to meet the basic needs of the persons most gravely affected by the armed conflict which took place in the period 1962–1996. Even if the government and the legislature had demonstrated greater willingness than was in fact the case, payments by the State could never have provided compensation for the entirety of the damage inflicted on the victims of the conflict. Even Germany has had a great deal of difficulty in ensuring adequate indemnification for victims of discriminatory measures taken by the Communist regime of the German Democratic Republic against all dissidents (imprisonment, prohibitions on working, refusals of higher education for their children). Financial reparation must, in all cases, be in line with the available economic and financial resources.

Even in instances where international crimes have been committed to the detriment of a person, the evaluation of the legal situation leads to the same results. At the level of principle, all seems to indicate that the individual affected by such crimes enjoys a right to full reparation, given that an international crime may never be justified by national legislation. However, one must be careful to guard against confusing decisions relating the crime itself and decisions relating to its consequences. Whereas international law takes little or no notice of the economic capacity of a State obliged to repair damage caused to another State, the same rigidity in the case of crimes committed within a State would be absurd. Inevitably, the problem of the limitation of resources within a national community must be considered. Particularly after a national catastrophe, when a people has succeeded in rebuilding a democratic regime having overthrown a dictatorship, the first priority will be to revive the economy by appealing to all members of the nation. In such circumstances, no-one may insist on the community’s duty to repair comprehensively the consequences of the injustice he has suffered. Under the principle of self-determination, international law must leave the regulation of such situations to national decisions. When the crime concerned merely has the character of an irregularity in an otherwise well-ordered system of governance, the issue of reparation evidently falls to be considered in a different context. In any case, the fact that the response depends broadly on the factual context shows that it is difficult for international law to lay down a general rule.

Protection of the individual in specialized treaty systems

(a)  The European Community

The European Community is the first (and so far virtually the only) international system in which the individual benefits from full protection of the rights conferred by the corresponding treaties. If the organs of the EC cause injury by infringing an individual’s rights, the victim can invoke article 288(2) of the EC Treaty (now article III-337 of the Treaty on the Functioning of the EU) which guarantees reparation in conformity with the general principles common to the laws of the member States. The treaties make no explicit provision in relation to those cases where it is the member States which infringe individuals’ (p. 990) rights; nevertheless, in its Francovich judgment13 the European Court of Justice held that according to the general principle of effectiveness of Community law, which underlies European integration, the individual must even in such situations be considered to be vested with a right to reparation. Initially controversial, this case law has very quickly been recognized by the courts of all the member States. The victory achieved by the European Court in this respect is explained by the simple fact that the right to reparation can be enforced before national tribunals and that the latter are placed under the control of the European Court of Justice by means of the system of preliminary references.14

(b)  The ICSID Convention

The individual can also defend rights qua investor directly under the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington Convention).15 The Convention, developed under the auspices of the World Bank, foresees that States and private investors can conclude contracts in which an arbitration procedure is prescribed for all disputes resulting from the implementation of the contract. There are several levels to this method of mixed regulation. Whilst the Convention is itself undoubtedly part of international law, like any investment protection treaty concluded between the host state and the home state of the investor, the agreements concluded on this basis between States and private persons are situated halfway between international law and a legal relationship of pure commercial law. In any case, the great advantage of those contracts which fall under the Convention consists in their protection against unilateral decisions on the part of the governments concerned. This stability is conferred on them by the conventional inter-State bond. In this system, the investor is himself considered as the injured party if the State party violates the relevant investment protection treaty and/or breaks the contractual bond. The investor does not need the aid of his State of nationality for the defence of his interests. In this way, disputes occurring are largely depoliticized.

Mixed regimes: reparation under national law

The best-known example of national legislation which independently affords a right to reparation to persons injured by a violation of international law is the US Alien Tort Claims Act. According to this statute, which dates back to 1789, an action is available before federal courts in cases where a non-national claims to have suffered damage because of a violation of international law committed against him. Although often saluted as a useful step in the progressive realization of human rights, the Act is not free from doubt to the extent that the United States claims jurisdiction over all violations of international law irrespective of where they occurred.

Further reading

Footnotes:

Report of the ILC, 58th Session, 2006, A/61/10, ch IV.

GA Res 54/4, 6 October 1999.

Art 44, American Convention on Human Rights, 1144 UNTS 123.

660 UNTS 195.

1465 UNTS 85, ‘Each State Party shall ensure in its legal system …’

999 UNTS 171, art 14(6).

Papamichalopoulos v Greece (App No 14556/89), ECHR, Series A, No 330-B (1995).

Bramarescu v Romania (App No 28342/95), ECHR Reports 2001-I.

McCann and Others v United Kingdom (App No 18984/91), ECHR, Series A, No 324 (1995).

10  Velásquez Rodríguez v Honduras, I/ACHR, Series C, No 4 (1988).

11  Commission on Human Rights, ‘The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final report of the Special Rapporteur, Mr M Cherif Bassiouni’, UN Doc E/CN.4/2000/62, 18 January 2000.

12  GA Res 60/147, 16 December 2005.

13  Joined Cases C-6/90 and C-9/90, Francovich and Bonifaci v Italy [1991] ECR I-5357.

14  Art 234, ECT.

15  575 UNTS 515.