Carmen Thiele

Das Verhältnis zwischen Staatenverantwortlichkeit und Menschenrechten

Section: Treatises
Archiv des Völkerrechts (AVR)

Volume 49 () / Issue 4, pp. 343-372 (30)

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The responsibility of states for internationally wrongful acts is based on mutual obligations between states – the violating and injured state -, that is, in a horizontal relationship. This concept seems to have no counterpart in the protection of human rights, which relies upon a vertical relationship between a state and individuals under its jurisdiction. Thus, the ILC Articles on Responsibility of States for Internationally Wrongful Acts of 2001 mention human rights only in a single provision, Art. 50 para. 1 lit. b). Certain questions emerge, therefore, concerning the nature of the relationship between state responsibility and human rights and/or the applicability to human rights violations of the codified rules of state responsibility as regulated in the ILC Articles. Both the international law of treaties and customary international law in the field of human rights protection obviously contain mutual obligations between states, alongside obligations of states towards individuals. As international treaties on human rights protection on both the universal (CCPR) and the regional level (ECHR and ACHR) do not constitute self-contained regimes, the ILC Articles are under certain circumstances applicable in cases of a breach of norms regulated in those treaties. Furthermore the ILC Articles are also applicable where norms of customary international law on human rights have been violated, especially where such norms have acquired the character of jus cogens or erga omnes-obligations. The breach of human rights obligations is, as a rule, the consequence of an internationally wrongful act committed by a state organ. However, acts of non-state actors are, under certain conditions, also attributable to a state as well, in particular where they acted on the instructions of, or under the direction or effective control of, the state concerned in carrying out the questionable conduct. In case of a breach of an international human rights norm not only the injured state but also third states, including the international community as a whole, may invoke the responsibility of a violating state. Besides this, under international human rights law individuals can directly invoke the responsibility of a state for a breach of an international obligation by using individual complaint procedures established in several international human rights treaties.

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