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NUMERO 15 - 29/07/2009

stato » dottrina - di Giulio Bartolini

 Reparation for violations of human rights: possible co-ordination in the case law of International supervisory bodies

In the context of the possible coordination of international jurisdictions in contemporary international law, the issue of reparations for human rights violations can be interpreted in several ways.
A simple initial approach to analysing this subject is to examine the relevant case-law on reparation for human rights violations developed by international tribunals and quasi-judicial organs, in order to identify explicit references to practice decided by other international supervisory bodies on legal issues related to reparation. If cross-references could be identified, it would be easier to demonstrate the existence of coordination among these institutions on reparation, as they would probably operate according to common criteria, based on the reciprocal influence on these issues.
However, an examination of the relevant case-law allows us to affirm both that “explicit” references to praxis developed by other international bodies in relation to the consequences of wrongful acts can only be found in a few cases, and that only a limited number of international supervisory bodies have accepted to refer to “external” case law on reparation in developing principles to be applied in their internal systems. Moreover, even the case-law of these bodies does not appear to be systematic, as they do not use these references to deal with any kind of legal problem on reparation.
In the absence of “explicit” coordination among international institutions, it would be reasonable to assume that the case law on reparation established by these organs should be extremely inhomogeneous, creating a phenomenon of “fragmentation” in this area of international law, due to different interpretations of common legal problems. However, an overall exam of international praxis suggests that such a conclusion does not seem correct. In fact, such an analysis allows us to highlight that these international bodies have developed similar case-law on reparation, based on common principles regarding the most relevant legal problems. In a sense these bodies have established a sort of “implicit” coordination on the consequences of human rights violations as they have resolved similar issues in the same way, even without cross-references and quotations of principles in force in other systems. This fact has a significant impact on our analysis of the existence of coordination among international bodies in contemporary international law and it would be relevant to identify the legal reasoning behind the phenomenon.
 
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