Notes
la Romanie, deuxieme phase, avis consultatif, C.I.J., Recueil, 1950, p. 228. See also
Article 1 of the draft Articles on State Responsibility adopted by the International
Law Commission in 2001: Every internationally wrongful act of a State entails the
international responsibility of that State.
(UN Doc. A/CN.4/L.602/Rev.1, 26 July 2001
(“ILC draft Articles on State Responsibility”)).
162. Permanent Court of Arbitration, Chorzow
Factory Case (Ger. V. Pol.), (1928) P.C.I.J.,
Sr. A, No.17.
163. Albert Wilson v. the Philippines, Communication No. 868/1999, U.N. Doc. CCPR/
C/79/D/868/1999 (2003). The Human
Rights Committee has referred in several
decisions to the duty to afford “appropriate” compensation. See Bozize v. Central
African Republic (No. 449/1990); Mojica v.
Dominican Republic (No. 449/1991). In Griffin v. Spain (No. 493/1992) the Committee
ordered “appropriate compensation for the
period of his detention in the prison in Melilla”. See also Bossuyt, Marc J. “Guide to
the ‘travaux preparatoires’ of the international covenant on civil and political rights”
(2002 ed. Kluwer Academic Publishers).
164. Adopted by General Assembly Resolution
A/Res/60/147, 16 December 2005.
165. See also, Principles 8 - 10 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Adopted
by General Assembly resolution 40/34 of 29
November 1985.
166. Commentary to the Draft Articles on State
Responsibility for Internationally Wrongful Acts; Report of the International Law
Commission on its Fifty-three Session, GA,
Supplement No. 10 (A/56/10); cph. IV.E.”).
167. Velásquez Rodríguez Case, Interpretation
Of The Compensatory Damages Judgment,
Judgment of August 17, 1990, Para. 27.
168. See for example the UN Convention on
the Rights of the Child and its Optional
Protocol; UN Convention against Torture;
Declaration on Enforced Disappearances;
Declaration on the Elimination of Violence
against Women.
169. Principle 24, Final report of the Special
Rapporteur, Mr. M. Cherif Bassiouni, submitted in accordance with Commission
resolution 1999/33, E/CN.4/2000/62, 18
67
January 2000.
170. Question of the impunity of perpetrators of
human rights violations (civil and political); E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 17.
171. For an overview of universal and national
human rights instruments recognising the
right to an effective remedy see REDRESS,
Sourcebook on Reparation, 2003.
172. See, for example, General Comment 29 on
States of Emergency (Art. 4) if the UN Human Rights Committee, CCPR/C/21/Rev.1/
Add.11, 31 August 2001, at para. 14: “Article
2, paragraph 3, of the Covenant requires a
State party to the Covenant to provide remedies for any violation of the provisions of
the Covenant. This clause is not mentioned
in the list of non-derogable provisions in
article 4, paragraph 2, but it constitutes a
treaty obligation inherent in the Covenant
as a whole. Even if a State party, during a
state of emergency, and to the extent that
such measures are strictly required by the
exigencies of the situation, may introduce
adjustments to the practical functioning of
its procedures governing judicial or other
remedies, the State party must comply with
the fundamental obligation, under article
2, paragraph 3, of the Covenant to provide
a remedy that is effective.” The Committee considered further that “It is inherent
in the protection of rights explicitly recognized as non-derogable […] that they must
be secured by procedural guarantees[…]
The provisions of the Covenant relating to
procedural safeguards may never be made
subject to measures that would circumvent the protection of non-derogable rights
[…].” Similarly the Inter-American Court of
Human Rights explained that the judicial
remedies to protect non-derogable rights
are themselves non-derogable. (Advisory
Opinion OC-9/87 of 6 October 1987. Judicial
Guarantees in States of Emergency (Arts.
27(2), 25 and 25(8) American Convention
on Human Rights. Series A No. 9.)
173. Some instruments explicitly call for the
development of judicial remedies for the
rights they guarantee; the African Charter
of Human and Peoples’ Rights for example,
provides that all remedies should be judicial. See Art. 7 of the African [Banjul] Charter on Human and Peoples’ Rights, adopted
June 27, 1981, OAU Doc. CAB/LEG/67/3 rev.
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