Writ of summons - Van Diepen Van der Kroef
Writ of summons - Van Diepen Van der Kroef Writ of summons - Van Diepen Van der Kroef
paragraph 2 of the ILC Articles for States. That Plaintiff and the Foundation neverthelessalso have a right of action will be addressed below with the discussion of theenforcement of liability.420. Article 31 paragraph 2 ILC Articles for States provides that the concept of damagecomprises every form of material and non-material damage caused by the wrongfulconduct:‘Injury includes any damage, whether material or moral, caused by the internationallywrongful act of a State.’The Explanatory Memorandum to the ILC Articles for States elaborates what is to beunderstood by non-material damage, namely, that it includes the loss of loved ones, painand suffering, ill-treatment or an intrusion into one’s personal private life. Such nonmaterialdamage must be compensated, according to the Explanatory Memorandum (see,Explanatory Memorandum to Article 36 ILC Articles for States, number 16, page 252):‘Compensable personal injury encompasses not only associated material losses, suchas loss of earnings and earning capacity, medical expenses and the like, but also nonmaterialdamage suffered by the individual (sometimes, though not universally, referredto as “moral damage” in national legal systems). Non-material damage is generallyunderstood to encompass loss of loved ones, pain and suffering as well as the affront tosensibilities associated with an intrusion on the person, home or private life. No lessthan material injury sustained by the injured State, non-material damage is financiallyassessable and may be the subject of a claim of compensation (…).’421. It is generally acknowledged that the UN is also obliged to pay compensation forbreaches of public international law committed by its bodies (see, R.J. Dupuy et al., AHandbook on International Organisations, second edition, 1998, page 887, and A.Simon, op. cit., page 264.) That is also acknowledged by the UN itself (Report of theSecretary-General on Financing of the United Nations Protection Force (…), of 20September 1996 (A/51/389, paragraphs 6-8, page 4). A ccodification of the ILC Articles© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com176
for International Organisations comparable to Articles 31 et seq. ILC Articles for Statesis not yet finished. That does not detract from the fact that the international customarylaw for international organisations is comparable to Articles 31 et seq. of the ILCArticles for States (see, R.J. Dupuy et al, op. cit., page 887, and M. Zwanenburg, op. cit.,pages 70 and 71).422. The UN and the State of the Netherlands must consequently pay compensation toPlaintiff and Foundation for the breaches of the international law set out above (see, K.Schmalenbach, Die Haftung Internationaler Organisationen, 2004, page 453, and A.Simon, op. cit., page 265).II.6. Enforcement of liability423. A distinction must be drawn when describing the enforcement of liability according tothe type of norm that is violated. In the case of breaches of norms of publicinternational law in principle only states can enforce liability. This situation is regardedas unsatisfactory in the literature and the caselaw. Following research by the CAVVand the UN it has been established that this principle should be set aside and thatindividuals also can bring a claim against states and the UN on the basis of norms ofpublic international law.424. Plaintiff and the Foundation have above already introduced the CAVV. The CAVVconcluded that an exception exists to the principle that only a state can enforce a claimon the ground of public international law. That exception applies to norms of publicinternational law that confer rights directly on individuals on the ground of publicinternational law. Into this category fall, inter alia, norms of human rights (see, CAVVOpinion, no. 3.5).425. The UN appointed independent experts to research the problematic of the enforcementof the rights of the individual. These experts conducted their investigations over aperiod of fifteen years. Member States of the UN, international organisations and NGOswere consulted during that investigation. The investigation led to the UN resolution of16 December 2005 (number 60/147), ‘Basic Principles and Guidelines on the Right to a© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com177
- Page 125 and 126: Subašić282. Plaintiff Subašić w
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paragraph 2 <strong>of</strong> the ILC Articles for States. That Plaintiff and the Foundation neverthelessalso have a right <strong>of</strong> action will be addressed below with the discussion <strong>of</strong> theenforcement <strong>of</strong> liability.420. Article 31 paragraph 2 ILC Articles for States provides that the concept <strong>of</strong> damagecomprises every form <strong>of</strong> material and non-material damage caused by the wrongfulconduct:‘Injury includes any damage, whether material or moral, caused by the internationallywrongful act <strong>of</strong> a State.’The Explanatory Memorandum to the ILC Articles for States elaborates what is to beun<strong>der</strong>stood by non-material damage, namely, that it includes the loss <strong>of</strong> loved ones, painand suffering, ill-treatment or an intrusion into one’s personal private life. Such nonmaterialdamage must be compensated, according to the Explanatory Memorandum (see,Explanatory Memorandum to Article 36 ILC Articles for States, number 16, page 252):‘Compensable personal injury encompasses not only associated material losses, suchas loss <strong>of</strong> earnings and earning capacity, medical expenses and the like, but also nonmaterialdamage suffered by the individual (sometimes, though not universally, referredto as “moral damage” in national legal systems). Non-material damage is generallyun<strong>der</strong>stood to encompass loss <strong>of</strong> loved ones, pain and suffering as well as the affront tosensibilities associated with an intrusion on the person, home or private life. No lessthan material injury sustained by the injured State, non-material damage is financiallyassessable and may be the subject <strong>of</strong> a claim <strong>of</strong> compensation (…).’421. It is generally acknowledged that the UN is also obliged to pay compensation forbreaches <strong>of</strong> public international law committed by its bodies (see, R.J. Dupuy et al., AHandbook on International Organisations, second edition, 1998, page 887, and A.Simon, op. cit., page 264.) That is also acknowledged by the UN itself (Report <strong>of</strong> theSecretary-General on Financing <strong>of</strong> the United Nations Protection Force (…), <strong>of</strong> 20September 1996 (A/51/389, paragraphs 6-8, page 4). A ccodification <strong>of</strong> the ILC Articles© <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> Advocaten 2007www.vandiepen.com176
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