... Тричі вбивця той, хто вбиває думку (Р. Ролан) ...

Головне меню

Міжнародна науково-практична конференція 10.12.20 - СЕКЦІЯ №2
Since the end of the Second World War the international community has acknowledged the importance of human rights protection and this recognition was materialized through the adoption of various human rights treaties. Although the requirement to observe such treaties is indisputable, sometimes the States Parties do not comply with the provisions of the given legal instruments and violate the human rights or fundamental freedoms enshrined in them. Thus, the responsibility of the «culprit» is to be engaged, due to the binding nature of treaties for the Contracting Parties. 
In other words, the breach of a human rights treaty leads to the State’s «accountability» because of its non-compliance with its international obligation originating from the treaty – to respect the right in question. This idea is based on the concepts addressed by the International Law Commission in Part One of the Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001, which clearly show the link between a breach of an international obligation and State responsibility. While Part One might apply to cases of State responsibility for human rights violations, Part Two of the Draft Articles has a more limited scope. In accordance with the Commentaries, «it does not apply to obligations of reparation to the extent that these arise towards or are invoked by a person or entity other than a State» [1, p.87-88].
In 1989 professor Theodor Meron emphasized that international lawyers have traditionally discussed human rights in terms of implementation, rather than trying to relate human rights to the general law of State responsibility [2, p.372]. At present, we can develop a different approach on this matter and concepts such as «human rights» and «State responsibility» may be examined in the same context.
Usually, human rights treaties stipulate remedial provisions aimed at repairing the damage caused through the committed violation. For instance, according to Article 41 of the European Convention on Human Rights, «if the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party» [3]. In conformity with Article 63 § 1 of the American Convention on Human Rights, «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» [4]. Lastly, Article 27 § 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the Court provides the following: «If the Court finds that there has been violation of a human or peoples’ right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation» [5]. As to the term «reparation», it seems that the Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001 refer to it as a generic concept, since it might take three forms underlined by Article 34 (Chapter II, Part Two): restitution, compensation and satisfaction.
Therefore, the international human rights courts are empowered by the treaties governing their activity to award redress for the victims of human rights violations. Such remedial provisions imply the responsibility of the State that committed the breach, since the latter has to remedy the damage it caused.
In order to hold a State «accountable» for human rights violations, the breach has to be found through a judgment delivered by an international human rights court, such as the European Court of Human Rights, the Inter-American Court of Human Rights or the African Court on Human and Peoples’ Rights. Each of these international judicial institutions will examine the alleged violation in accordance with the treaty governing its own activity and within the jurisdictional limits established by the given international legal instrument. Their remedial powers are not quite the same, yet all of the above-mentioned courts are redress-oriented.
For example, through its case-law, the European Court of Human Rights noted that a judgment in which it finds a breach imposes a legal obligation on the respondent State to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach [6, § 41]. Accordingly, a judgment issued by an international human rights court has a reparatory nature and can be regarded as a judicial foundation for State «accountability» in this field. 
In conclusion, State responsibility proves itself to be a valuable tool for the redress of human rights violations and the international human rights courts play a major part in the process of its validation through their jurisprudence.
    
References:
1. Draft Articles on Responsibility of States for Internationally Wrongful Acts (with Commentaries), adopted by the International Law Commission at its fifty-third session, in 2001.
2. Meron T. State Responsibility for Violations of Human Rights. American Society of International Law Proceedings 83 (1989): p. 372—384.
3. Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680063765 (accessed on 8 December 2020).
4. American Convention on Human Rights of 1969, https://www.oas.org/dil/treaties_b-32_american_convention_on_human_rights.htm (accessed on 8 December 2020).
5. Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights of 1998, https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-establishment-african-court-human-and (accessed on 8 December 2020).
6. Ojog and Others v. the Republic of Moldova, App. No. 1988/06, Judgment on Just Satisfaction (Committee), 18 February 2020.
 
 

-
English French German Polish Romanian Russian Ukrainian
2021
October
MoTuWeThFrSaSu
    123
45678910
11121314151617
18192021222324
25262728293031
Національний розвиток держави і права повинен ґрунтуватися, у першу чергу, на:
 
На Вашу думку чи забезпечують реалізацію принципу верховенства права законодавчі реформи 2020 року?
 
Система Orphus
Повну відповідальність за зміст опублікованих тез доповідей несуть автори, рецензенти та структурні підрозділи вищих навчальних закладів та наукових установ, які рекомендували їх до друку.

Лічильники і логотипи

Актуальна Юриспруденція