States as Guardians of the Rights of Individuals

The doctrine of ‘international responsibility’ is applicable to any subject bearing legal personality in international law. A subject of international law may be held responsible for an act or omission that violates international law. In the same manner, an individual, as a subject of international law, may claim an injury caused by the breach of that international obligation. "International responsibility" under the rules protecting individuals from official abuses has undergone a significant evolution.

Traditionally, a state-centric approach protected individuals only vis-à -vis certain conduct by States other than their own - whether enemy nations (under the laws and customs of war) or States where they might reside or exercise commercial activities (under the law of state responsibility for injury to aliens).

With this approach, the right to reparation was attributed to the State of the injured national to claim against the offending State at the inter-State level. As explained by Professor van Boven: "the subject who has suffered the injury is not the individual person, or for that matter, a group of persons, but the State of which the person or the group of persons is or are national(s). It is in this perspective that States may claim reparation from the offending State but the victims themselves have no standing to bring international claims."

The theory of international remedies originally developed in this context; focusing on claims and arbitral proceedings mostly as lodged between belligerent States. A State had the right (but not the obligation) to take up the claims of its nationals before an international body. The claims were determined by negotiation, mediation, arbitration, adjudication, and the State maintained full control over them. Although direct injuries to States and injuries to its nationals were considered differently when estimating damages, the reparation was awarded solely to the State as the injured party.

The violation that was redressed was not the injury to the individual victim(s), but the violation (and its consequences) of the international duty to respect certain rights of the nationals of that State. If the State was awarded monetary compensation, it would normally then turn the award over to the injured national.

After World War II, this state-centric approach was dramatically transformed. There was an increasing concern with the individuals involved in atrocities, both the individual criminal responsibility of perpetrators and the rights of victims to reparation (as human being with intrinsic rights under international law and not only by extension of the rights of their States). At Nuremberg, it was recognized that “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Of equal importance, the adoption on 10 December 1948 of the Universal Declaration of Human Rights heralded the inherent rights of individuals to dignity and respect.

What is Reparations law? Read more