Albrecht Randelzhofer, Christian Tomuschat; State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights

Martinus Nijhoff 1999

The book reviews the modern tendency to recognize individuals aggrieved by a (grave) violation of their rights as holders of claims to reparation directly under international law. Indeed, the European as well as the American Convention on Human Rights empower the relevant Courts to grant appropriate compensation to any person whose complaint is successful. Under general international law, however, this tendency still lacks solid foundations, although a draft declaration currently pending before the UN Human Rights Commission (‘van Boven Principles’) would confirm the individual’s entitlement to reparation as a matter of international law. Likewise, some US Courts have already tried to entertain suits against foreign States in instances of egregious human rights violations. At first glance, to accept persons victims of grave violations as actors at the level of international law seems to be a big step forward, strengthening significantly the regime of human rights. Yet care must be taken not to lose sight of the advantages of the traditional configuration according to which the State alone is entitled to assert reparation claims in cases where its nationals have suffered injury at the hands of another State. In particular, the consequences of developments of catastrophic dimensions like wars cannot be sensibly settled in the same way as any other tort claim. At the inter-State level, in particular, globalization of reparation is indispensable. To apply the simple maxim that all the consequences of an internationally wrongful act must be wiped out would in many instances be tantamount to negating the possibility ever to make a fresh start after a devastating international conflict.