The UN basic principles and guidelines on the right to a remedy and reparation : a landmark or window-dressing? An analysis with special attention to the situation of indigenous peoplesThe UN basic principles and guidelines on the right to a remedy and reparation : a landmark or window-dressing? An analysis with special attention to the situation of indigenous peoples
Faculty of Law
South African journal on human rights. - Braamfontein
24(2008):1, p. 71-103
The growing international responsiveness to the rights of victims materialised in 2005 in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for the Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (BPGs). Their analysis leads to a nuanced conclusion. On the one hand, the BPGs significantly contribute to strengthening victims rights, as they adopt a victim-oriented perspective and provide a structured enunciation of their rights. They may inspire the African human rights system and national states in the development of their jurisprudence and policy on remedies. On the other hand, the expert text has been substantially weakened during the intergovernmental consultations. In some aspects, the BPGs even fall short of their intention to uphold international standards. Looking at the instrument through indigenous peoples eyes unveils some specific deficiencies. Particularly regrettable is the reluctance of states to incorporate provisions concerning collective rights, whereas it is essential for indigenous peoples to be able to file a collective claim and receive reparation collectively. The challenges for the future lie first, in the implementation of the BPGs within national legal systems and second, in a further strengthening of the international norms on victims rights, preferably by working towards a binding convention on the rights of victims of all human rights violations.