Do victims of torture and other serious human rights violations have an independent and enforceable right to reparation?

• Published in: The international journal of human rights Vol. 16; no. 5; pp. 698 - 716
• Main Author: Echeverria, Gabriela
• Format: Journal Article
• Language: English
• Published: Abingdon Routledge 01.06.2012; Taylor & Francis Ltd
• Subjects: Citizens; Claims; Compensation; Courts; Human Rights; Human rights violations; individual(s); Individuals; International community; International Court; International Law; Legal Cases; remedies; remedy; reparation(s); Reparations; Rule of law; Rules; secondary rights; serious violations; State responsibility; subject(s); Torture; victim(s); Victims; Violations
• ISSN: 1364-2987; 1744-053X
• DOI: 10.1080/13642987.2012.685315

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.