Abstract
As we have seen in Part One of the present work, most of the international norms related to the different categories of victims are of institutional nature and only three are treaties. Concerning the first one, they are almost all institutional norms adopted in the frame of international organizations of co-operation, whereas a minority have been adopted in the frame of the European Union. That is an international organization of integration to which Member States have ceded competences in different material fields. Within these competences, too, also legislative competences and this is why norms of the European Union bind Member States and these are obliged to fulfil with.
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Notes
- 1.
So the European Convention on the Compensation of Victims of Violent Crimes adopted on 24 November 1983 (entered into force on 1st February 1998), the United Nations International Convention for, the Protection of All Person from Enforced Disappearance, adopted on 20 December 2006 (not yet in force) and the Inter-American Convention on enforced disappearance of persons, of the 9th July 1994 (this convention entered into force on 28 March 1996).
- 2.
Cf. Macgibon, “Means for the Identification …”, op. cit., 10 et seq. Vid. Also Roucunas (1987-VI), p. 9 et seq.; Sepulveda (1990), 444 et seq.; Abbot and Snidal 421–456.
- 3.
Vid. Carrillo Salcedo, Curso…, op. cit., 123.
- 4.
- 5.
Thus, for example, those decisions regarding the approval of the general budget of the Organisation and those concerning the specialized agencies (article 17), the choice of non-permanent members of the Security Council, the election of members of the Economic and Social Committee of the Trusteeship Council, the admission of new members to the United Nations, the suspension of the rights and privileges of the Members, the expulsion of Members (article 18), the decisions regarding the establishment of subsidiary institutions (article 22), those concerning the Trusteeship System and those which affect the Trusteeship Council (articles 85 and 87).
- 6.
On this question Article 15 of the Statute of the Council of Europe states: “a) On the recommendation of the Consultative Assembly or on its own initiative, the Committee of Ministers shall consider the action required to further the aim of the Council of Europe, including the conclusion of conventions or agreements and the adoption by governments of a common policy with regard to particular matters. Its conclusions shall be communicated to members by the Secretary General. b) In appropriate cases, the conclusions of the Committee may take the form of recommendations to the governments of members, and the Committee may request the governments of members to inform it of the action taken by them with regard to such recommendations.”
- 7.
On this question Article 59 of OAS Charter states: “Decisions of the General Assembly shall be adopted by the affirmative vote of an absolute majority of the Member States, except in those cases that require a two thirds vote as provided in the Charter or as may be provided by the General Assembly in its rules of procedure.”
- 8.
So, the Basic Principles and Guidelines of the Right a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted on 19 April 2005 by Resolution 2005/35 and later by the General Assembly on 16 December 2005 through Resolution 60/147 (UN E/CN.4/2005/L.10/Add. 11).
- 9.
Vallat (1959-II), 225 et seq. Vid. also Roucunas, op. cit., 174 et seq.
- 10.
Which leads Reuter to state that “when the consent or the institutions arise from a sufficiently representative set of states mainly interested in one question, the consent or institution can sometime generate effects for third party states” (Principes de Droit…”, op. cit., 448 et seq.).
- 11.
Vid. Jacque (1991-II), 388.
- 12.
Although as P.M. Dupuy points out, in fact, the debate is restricted to a limited number of these (cf. Droit International Public, op. cit., 277).
- 13.
See note 10 of the present work.
- 14.
Like the content of the norm, its language, the procedure for its approval, how it was adopted, and consequently, the attitude of the States towards the institutional norm in question. With regard to General Assembly resolutions, Sloan points out that given the difficulty or perhaps the impossibility of “making generalisations which cover all the resolutions, one has to consider all the circumstances involving a determined resolution before making an evaluation” (Sloan, op. cit., 42).
- 15.
For example, Barberis and Shaw (1991).
- 16.
Vid. González Campos, Sánchez Rodriguez and Andrés Sáenz de Santa Maria, op. cit., 90.
- 17.
See ICJ, Reports 1974, 23. With regard to the second matter, see ICJ Reports 1969, 38. The non-existence of this consensus means that the 10-mile rule has not acquired “the authority of a general rule of international law” but, at any rate, it could not be used against Norway “inasmuch as she has always opposed any attempts to apply this to the Norwegian coast” (Fisheries case, ICJ, Reports 1951, 131).
- 18.
ICJ, Reports 1971, 50.
- 19.
ICJ, Reports 1962, 163. The part in italics is from the original.
- 20.
It can also draw up and adopt conventions which are annexed to the resolution in question.
- 21.
The Institute of International Law (IIL) takes in the different types of documents under the form of recommendations (Resolution of the Cairo meeting, September 13–21, 1987, Vol. 62-II, 1987, 273 et seq.
- 22.
Cf. ibid., Conclusion 4.
- 23.
Cf. ibid., Conclusion 12.
- 24.
ICJ, Reports 1986, paragraph 188. Along the same lines, the ICJ mentions the resolution of the Sixth Inter-American Conference held on February 18, 1928, which condemned aggression and Resolution 78 of the General Assembly of American States (OAS), adopted on April 21, 1972 regarding the principles of non-intervention and the free determination of peoples.
- 25.
Vid. Sloan, op. cit., 69.
- 26.
Ibid.
- 27.
Cf. Zappalá (2009), p. 226. In its opinion, this is the case of GA Resolution 60/147 of 16 December 2005 adopting the Basic Principles and Guidelines of the Right a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
- 28.
Vid. Jiménez de Aréchaga (1978-I), 31.
- 29.
An example of this is the statement from the ICJ in the case concerning Military and Paramilitary Activities in and against Nicaragua (cf. ICJ, Reports 1986, 100). In this regard, vid. Pastor Ridruejo, Curso de …, op. cit., 175.
- 30.
Castañeda (1970-I), 171.
- 31.
A/RES/40/34.
- 32.
A/RES/47/133.
- 33.
In the same line cf. Zappalá (2009), 226, and Th. Van Boven, “The right to a remedy as contained in international instruments: access to justice and reparation in treaties and the new United Nations principles”, in ibid., 46.
- 34.
Approved by the General Assembly on December 19, 1966, it was signed in London, Moscow and Washington on January 27, 1967. It has been in force since October 10, 1967.
- 35.
Thus, Part XI of the 1982 Convention defines the legal regime of the International Zone of the seabed and ocean bed and includes and develops the principles of Resolution 2749 (XXV) and sets up an International Organisation (The International Authority on the Sea and Ocean Beds) responsible for organizing and controlling activities in the Zone in accordance with the Convention.
- 36.
See ut supra note 33.
- 37.
Cf. Carrillo Salcedo, Curso…, op. cit., page 131. The italics are from the original. Vid. also Sloan, op. cit., 70.
- 38.
IIL (1987), 279.
- 39.
ICJ, Reports 1971, 31. Cf. Also, the advisory opinion of the ICJ on the Western Sahara Case (Reports 1975, especially page 32). This Resolution was repeated and developed in subsequent Resolutions, 1541 (XV), 1980 (XVII) and 2625 (XXV). In opinion of B. Sloan, these types of resolutions also constitute a “species of General Assembly resolutions based on established practice outside the express provisions of Chapter IV of the Charter” (op. cit, 140).
- 40.
Ibid., 57.
- 41.
Vid. ibid., 57 et seq.
- 42.
Cf. SLOAN, op. cit., page 59. This presumption could only be destroyed if the rejection of the resolution were to be proved by subsequent practice (ibid.).
- 43.
Ibid., 60.
- 44.
Vallat, op. cit., 231.
- 45.
Sloan, op. cit., 140. He adds that “at least in some circumstances the obligation does go further and is a duty not only to consider in good faith but to act in good faith as well. Such duty arises out of the obligations of co-operation implicit in organizational theory and expressly stated in Articles 1(3), 2(5) and 56 of the Charter of the UN” (ibid., 125).
- 46.
Italics are mine.
- 47.
Cf. Jaque, op. cit., 397.
- 48.
Cf. in this regard Carrillo Salcedo, Curso …, op. cit., 132 et seq. Yes, The General Assembly is almost a universal forum in which the presence of almost all the States which make up the International Community, and it facilitates the operability of the process for drafting the institutional norm. Within the Assembly, the states manifest their attitude as regards the resolution at the same time and collectively through adopting the resolution. This resolution may contain a norm of International Law, which already exists or is emerging, or which might be the basis and starting point for the progressive development of International Law (cf. Jiménez de Aréchaga, op. cit., 34.)
- 49.
Vid. Virally (1984). Especially 299.
- 50.
On this question from the perspective of the protection of human rights, see Carrillo Salcedo (1993). Especially 173–175.
- 51.
The ICJ refers to these criteria in the case of the Legal Consequences for States regarding of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1970) (Vid. ICJ, Reports 1971, 50).
- 52.
Vid., Dupuy, Droit…, op. cit., 279.
- 53.
For example, Principle 21 which contains the obligation on prevention.
- 54.
In Carrillo Salcedo’s opinion, as a result of its political nature, the General Assembly adopts many resolutions, which are clearly political in content “most of the time by majority, which naturally has little legal significance as concerns the process for the drafting of the general legal norms” (Curso …, op. cit., 130).
- 55.
At doctrinal level, some authors choose to put institutional norms at the same level as conventional norms for the purposes of interpretation, and propose that the analysis of the content be done by analogy in accordance with the rules of the 1969 and 1986 Vienna Conventions. B. Sloan (op. cit. page 129) adds that “when the resolution contains a binding decision expressly authorized by the Charter or if this constitutes an agreement, it would seem reasonable to apply the rule of where it constitutes an agreement, it would appear reasonable to apply the treaty rule on travaux préparatoires” (preparatory works). Virally maintains that the acceptance of the adoption of a resolution also constitutes acceptance of the terms of the resolution “so it is necessary to formulate reservations in order to disassociate, in the event of consensus” (“Résolution et ….”, op. cit., 304.
- 56.
The adoption of a resolution would only express “an informal agreement regarding the text among all the states which, through their representatives, have contributed to this adoption”, whether by majority, unanimously or by consensus (Virally, “Résolution et …”, op. cit., 301).
- 57.
Thus, Virally himself is inclined to recognize that the adoption of the resolution confers on the regulatory provisions of the text a legal authority which is above its formal classification, and he states that the resolution is of a mixed nature: “formally it is a unilateral act of the committee of the conference which produced it. Due to the conditions of its adoption, it expresses the content of the inter-governmental agreement and is thus of a conventional colouring” (“Résolution et …”, op. cit., 301 et seq.)
- 58.
Following this line of thought, the resolution of the IIL at its Cairo meeting in 1987 in its conclusion number 13 states: “A law declaring resolution, adopted without negative vote or abstention, creates a presumption that the resolution contains a correct statement of law. That presumption is subject to rebuttal”. And Conclusion number 14 adds: “In situations where a rule of customary law is emerging from State practice or where there is still doubt whether a rule, though already applied by an international organ or by some States, is a rule of law, a resolution adopted without negative vote or abstention may consolidate a custom or remove doubts that might have existed” (op. cit., 283–285).
- 59.
Cf. Sloan op. cit., 131.
- 60.
Cf. Dupuy, Droit …, op. cit., 279 et seq.
- 61.
Vid. in this regard, Carrillo Salcedo, Curso …, op. cit., 130. Other criteria apart from the representative nature is, according to P. M. Dupuy, the establishment of a control mechanism, which is more or less institutionalized for the monitoring of the resolution by the member states. This control could consist of a periodical examination of the conditions of application laid down in the resolution by an institution of the Organisation (Droit..., op. cit., 280)
The criteria of the representative nature appear backed by the IIL in its Cairo Resolution, “The authority of a resolution is enhanced when it is adopted by a representative majority that includes the main legal systems” (op. cit., 285).
- 62.
As stated by the ICJ in the case of Military and Paramilitary Activities in and against Nicaragua (ICJ, Reports 1986, para. 188)
- 63.
Cf. Virally, “Résolution…”, op. cit., 301.
- 64.
Sloan, op. cit., 131.
- 65.
Vid. IIL, op. cit., 285.
- 66.
In accordance with Conclusion number 16 of the Resolution of the IIL of 1987, at the Cairo session, “the authority of a resolution is enhanced when it is adopted by consensus”.
The Declaration of Stockholm in 1972 constitutes an example of a Resolution adopted by consensus.
It should be added that when the resolution is voted unanimously, it force seems, in principle, greater than when it is adopted by consensus.
- 67.
Vid. Jacque, op. cit., 398. This author describes this agreement as “an informal legal agreement among states”, which must be deduced from the examination of the circumstances involved in the adoption of the resolution (ibid).
- 68.
As concerns the reservations, the Cairo Resolution of the IIL in its Conclusion number 17, states that “Where a resolution may be subjected to reservations either in the explanations of votes or in other statements, the effect of such reservations is to qualify or limit the extent of approval by the reserving State. Depending on its contents a reservation may mean less than rejection of the rule. It may be merely an expression of doubt. If a resolution expresses existing law, a State cannot exclude itself from the binding force of that law by making a reservation” (op. cit., 285)
- 69.
Vid. Jacque, op. cit., 398.
- 70.
Vid. Virally, “Résolution …”, op. cit., 303.
- 71.
Which leads P.M. Dupuy to state that in such cases, whether it is wished or not, “it is a matter of the expression of a meeting of wills, although rather diluted… which is facilitated by the organic framework of the intervention, whose nature is conventionally deaf and difficult to respond to” (op. cit., 281)
- 72.
J.A. Pastor Ridruejo, Curso…, op. cit., 710. Also Carrillo Salcedo who, after he had stressed the negotiation process of the resolution among the states which make up the political groups which constitute the General Assembly, he states that “when this negotiation becomes fruitful and makes the adoption of a resolution possible by consensus or by general agreement, the resolution in question is in fact a concerted judicial act of a non-conventional nature, that is to say, an agreement between states expressed at a judicial act as distinct from an international agreement, with undeniable legal value as a new procedure for drafting legal norms in contemporary International Law…” (Curso…, op. cit., 134)
- 73.
The IIL in Conclusion number 10 of the Cairo Resolution of 1987 highlights as criteria for appreciating the intention of states both the drafting and the context of a resolution as these help to determine the scope of the norm, and adds that the presence of “references to international law or equivalent phrases, or the deliberate omission, are relevant but not in themselves” (IIL, op. cit., 281). Vid. Also Amerasinghe (1994), 175 et seq.
- 74.
ICJ, Reports 1986, para. 193.
- 75.
Vid. Carrillo Salcedo, Curso …, op. cit., 130.
- 76.
According to Sloan, the “resolutions -or at least the votes of States on resolutions- are a part of state practice”, and constitute “a material source of customary law and must be taken into account in considering the current state of the law” (op. cit., 74) And he adds, the “resolutions are evidence” (ibid., 85).
- 77.
From this perspective, the changes that have occurred in the international community since the Charter was drafted are evident. The balance consigned to the Charter after the Second World War has been extensively altered, first, due to the universalizing of the Community itself as a result of decolonization and, more recently, due to the disappearance of the Soviet block and the subsequent break up of the USSR and other East-Europe States. The Charter is the same but the context in which it is applied has changed profoundly. So, some of the provisions (for example, Chapter VII) recover vitality and the Organization is confronted with new challenges. Within the framework of this Chapter, the provisions of the Charter concerning the prohibition of the use of force and the protection of human rights receive new applications, and questions arise such as the control of the legality of the acts of the Security Council.
- 78.
Dupuy, Droit…, op. cit., 283. Sloan adds other factors such as the time and the circumstances, “the international climate in which the resolution was adopted must influence its weight” (op. cit., 128). These changes give rise to another problem which is the replacement of the commitments and the text of the past by new individual and collective consent. Cf. also Amerashinge, “Interpretation of texts…”, op. cit., 198 et seq.
- 79.
Vid. Dupuy, Droit…, op. cit., 290.
- 80.
Pastor Ridruejo, Curso…, op. cit., 177. One of the results of the current situation after the changes that have occurred is the new leading role not only of the Great Powers but of all States of the International Community and the role they play in the General Assembly. This has led to the fact that international law declarations or texts are not being adopted as frequently as between 1960 and 1990.
- 81.
ICJ, Reports 1971, 31.
- 82.
Cf. ICJ, Military and Paramilitary Activities in and against Nicaragua, Reports1986, para. 188.
- 83.
According to Virally, the resolutions of the International Organisations “are the expression of a political agreement made between states which have participated in its adoption. Insofar as they share specific commitments for the states, these commitments must be considered as politically binding the states which have accepted them, and they do not have a value inferior to those the states assume in other actions apart from the institutions of the international organisations or at conferences convened to adopt an agreement” (“Résolution …”, op. cit., 305 et seq.). However as P. M. Dupuy points out, “the nature and the intensity of the relations maintained between the two regulation orders, the political order and the legal order” remain to be known. (Droit…, op. cit., 281).
- 84.
For example, the 1972 Declaration of Stockholm, the Universal Declaration of Human Rights of December 10, 1948, the Declaration on Protection Against Torture or Cruel, Inhuman or Degrading Treatment or Punishment of December 9, 1975, etc As regards the Human Rights sector cf. Kiss (1988), 51 et seq. The same can be said as regards the principle of the freedom of movement of people.
- 85.
Due to the characteristics of the law of the EU (specially the binding nature of the principal legal acts) in the frame of the EU it is not necessary that the institutional norm become followed by an international treaty.
- 86.
So, the Declaration on the Protection of All Persons from Enforced Disappearance adopted by A/RES/47/133 of 18 December 1992 was followed by the International Convention for the Protection of All Persons from Enforced Disappearance adopted on 20 December 2006 by A/RES/61/177.
- 87.
So, the Declaration on the Elimination of All Forms of Racial Discrimination adopted by A/RES/1904 (XVIII) of 20 November was followed by the International Convention on the Elimination of All Forms of Racial Discrimination adopted and opened for signature by A/RES/2106 (XX) of 20 December 1965.
- 88.
So, the Declaration on the Elimination of Discrimination against Women adopted by A/RES/2263 (XXII) was followed by the Convention on the Elimination of All Forms of Discrimination against Women adopted on 18 December 1979.
- 89.
So, the Declaration on the Protection of All Persons from being subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by A/RES/3452 (XXX) of 9 December 1975 was followed by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984.
- 90.
So, the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 was followed by the Convention on the Rights of the Child adopted and opened for signature, ratification and accession on 20 November 1989 by A/RES/44/25.
- 91.
In concrete, in Chapter VI of the present work.
- 92.
When I say “general”, I refer to the treaties, both at the universal and regional level, claiming a catalogue of rights and freedoms. It is the case, for example, of the two international Covenants of the United Nations of 1966, as well as of the regional conventions: European (1950), American (1966) and African (1980).
- 93.
Due to the high number of ratifications, Bottigliero considers that the Torture Convention forms one of the pillars in the codification of the fundamental principle of victims’ right to redress for human rights violations (Bottigliero (2004), 123).
- 94.
So, Article 39 of UN Convention on the Rights of the Child of 20 November 1989: “States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child”.
- 95.
UN E/CN.4/2005/L.10/Add. 11. It was adopted by a recorded vote of 40 to none, with 13 abstentions.
- 96.
Italics are mine.
- 97.
Cf. Tomuschat (2007), 572.
- 98.
Cf. Tomuschat (2009), 11.
- 99.
Consequently, they are not rights of lege ferenda but lex data.
- 100.
Tomuschat, “Reparation in Favour of Individual Victims of Gross Violations of Human Rights and International Humanitarian Law”, op. cit., 325.
- 101.
Ibid., 338.
- 102.
In the same line, Article 14 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment of 10 December 1984 obliges States Parties to ensure in their legal systems that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, “including the means for as full rehabilitation as possible”. See the recognizing of the competence of the Committee against Torture and Article 22.7. Also, Article 6 of the Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, linked to the recognizing of the competence of the Committee on the Elimination of Racial Discrimination; Articles 7.4 and 7.5 of the Convention on the Elimination of Discrimination against Women of 18 December 1979, linked to the optional character of the 1999 Protocol to the Convention which envisages the recognizing of the competence of the Committee on the Elimination of Discrimination against Women and the decisions of the Committee declaring the violation of rights protected under the Convention. Last but not least, see also Article 4.1.a) of the Convention on the Rights of Persons with disability of 13 December 2006, linked to the recognizing of the competence of the Committee on the Rights of Persons with Disabilities which is provided in Article 1 of the Optional Protocol to that Convention, to Article 3 of the Optional Protocol (which obliges the concerned State Party to submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State) and to Article 5 of the Optional Protocol (which provides that, after examining a communication sent to it in the frame of this Protocol, the Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner).
- 103.
Despite its name of “recommendations”, they have legal effects on State Parties to the treaty. About this question, see Fernández de Casadevante Romani (2011).
- 104.
See points 2 and 3 of General Comment No. 31 of 29 March 2004. It replaces the former General Comment of 29 July 1981.
- 105.
Ibid., point 3.
- 106.
Ibid.
- 107.
Ibid.
- 108.
This Special Rapporteur began its work on March 2001, since the 71st period of session of the Human Rights Committee. This mechanism makes clear the binding effects of Humans Rights Committee decisions Cf. UN, Reports of the Human Rights, Volume II, Eighty-eighth session (16 October–3 November 2006), A/62/40 (volume II); Volume I, Eighty-nine session (12–30 March de 2007), A/62/40 (volume I); Volume I, 90 session (9–27 July 2007), A/62/40 (volume I).
- 109.
Cf. Human Rights Committee, General Comment No. 31, adopted on 29 March 2004, para. 15 (CCPR/C/21/Rev.1/Add. 13), 26 May 2004.
- 110.
Cf. ECHR, Case of Cyprus v. Turkey, Application no. 25781/94, Judgement of 10 May 2001, para. 219. In this judgement, the ECHR refers to the Case L.C.B. v. the United Kingdom, Judgement of 9 June 1998, Reports 1998-III, p. 1403, § 36). This jurisprudence is reiterated in the Case Berktay v. Turkey, Judgement of the 1st March 2001 (see para. 154) and in its decision on the admissibility in the Case Nitecki v. Poland, of 21 Mach 2002 (Application No. 65653/01).
- 111.
So, for example in the Case Hurtado v. Switzerland in which the European Commission of Human Rights unanimously expressed the view that Article 3 of the Convention (prohibition of torture) had been violated, in particular inasmuch as the applicant was not examined by a doctor until 8 days after his arrest. This case concluded with a friendly settlement and the ECHR struck it off list through Judgement of 28 January 1994. See also the Case McGlinchey and Others v. The United Kingdom, Judgement of 29 April 2003, in which medical assistance is analysed in the context of Article 3 (prohibition of torture) with regard to the conditions in which a person is detained. The ECHR stated that under this provision “the State must ensure that a person is detained in conditions which are compatible with respect for her human dignity, that the manner and method of the execution of the measure do not subject her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, her health and well-being are adequately secured by, among other things, providing her with the requisite medical assistance (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq., and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI)” (Application no. 50390/99, Judgement of 29 April 2003, para. 46).
- 112.
Cf. ICHR, I/A Court H.R., Case of La Cantuta v. Peru . Merits, Reparations and Costs. Judgement of November 29, 2006, Series C No. 162, para. 149.
- 113.
Cf. ibid., para. 160.
- 114.
It states: “1. If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, 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.”
- 115.
I/A Court H.R., Case of Velásquez-Rodríguez v. Honduras. Reparations and Costs. Judgement of July 21, 1989. Series C No. 7, para. 25.
- 116.
So in the Case of Barrios Altos v. Peru, Judgement of 14 March 2001, para. 41 (cf. I/A Court H.R. Case of Barrios Altos v. Peru, Merits. Judgment March 14, 2001. Series C No. 75, para. 41).
- 117.
So in the Case of La Cantuta v. Peru. Merits, Reparations and Costs. Judgement of November 29, 2006 ((I/A Court H.R., Series C No. 162, para. 225).
- 118.
Related to Spain, see Fernández de Casadevante Romani (2010).
- 119.
Such a construction is present in the jurisprudence both of the ECHR and of the I/ACHR. See 137 et seq. of the present work.
- 120.
International norms on victims recognize the right of victims not to receive such information unless such communication thereof is compulsory under the terms of the relevant criminal proceedings. See 194 et seq. of the present work.
- 121.
See in extenso 239 et seq. of the present work.
References
Abbot KW, Snidal D (2000) Hard and soft law in International Governance. Int Organ 54(3):421–456
Amerasinghe CF (1994) Interpretation of texts in Open International Organizations. Br Yearb Int Law:175
Barberis J (1994) Formación del derecho internacional, ed. Abaco de Rodolfo De Palma, Buenos Aires
Blokker N (1999) Decisions of international organizations: the case of the european union. NY Int Law XXX:45
Bottigliero I (2004) Redress for victims of crimes under international law. M. Nijhoff, Leiden
Carrillo Salcedo JA (1993) Algunas Reflexiones sobre el valor jurídico de la Declaración Universal de Derechos Humanos. In the collective work, Hacia un nuevo orden internacional y europeo. Homenaje al Profesor M. Díez de Velasco, Tecnos, Madrid
Castañeda J (1970-I) Valeur juridique des résolutions des Nations Unies. HR 129:171
Fernández de Casadevante Romani C (coord.) (2010) España y los órganos internacionales de control en materia de derechos humanos
Fernández de Casadevante Romani C (dir) (2011) Derecho Internacional de los Derechos Humanos
IIL (1987) Yearbook of the Institute of International Law vol. 62-II
Jacque JP (388) Acte et norme en Droit International Public. R des C 227:388
Jiménez de Aréchaga E (1978-I) General course in public international law. HR 159:31
Kiss A Ch (1988) Le rôle de la Déclaration universelle des droits de l’homme dans le développement du droit international. Bulletin des Droits de l’Homme, éd spéciale, Nations Unies, New York
Maluwa T (2000) International law-making in the organization of African unity: an overview. Rev Afr DI Comp 12(2):201
Roucunas E (1987-VI) Engagements parallèles et contradictoire. R des C VI 206:9
Sepulveda C (1990) Methods and procedures for the creation of legal norms in the international system of states: an inquiry into the progressive development of international law in the present era. German Yearb Int Law 33:444
Tomuschat C (2007) Reparation in favour of individual victims of gross violations of human rights and international humanitarian law. In the collective work, Promoting justice, human rights and conflict resolution through international law. Liber Amicorum Lucius Caflish, p 572.
Tomuschat C (2009) La protection internationale des droits des victimes. In: Flauss J-F (ed) La protection internationale des droits de l’homme et les droits des victimes, p 11
Vallat FA (1959-II) The competence of the United Nations General Assembly. R des C 97:225
Virally M (1984) Résolution et Accord International, in the collective work Essays in International Law in Honour of Judge Manfred Lachs. Nijhoff, The Hague
Zappalá S (2009) The rights of victims of terrorism: the teaching of international law. In: the collective work, Flauss J-F (ed) La protection internationale des droits de l’homme et les droits des victimes. Bruylant, Bruxelles
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de Casadevante Romani, C.F. (2012). A Previous Question: The Legal Nature of Victims’ Rights. In: International Law of Victims. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-28140-2_5
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