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The right of refugees and
displaced persons to compensation is anchored in several bodies of
international law. Under the Law of State Responsibility states are
responsible for the commission of an internationally wrongful act.
Elements of an internationally wrongful act include conduct
consisting of an action or omission that is attributable to the
state under international law and conduct that constitutes a breach
of an international obligation of the state. When a person becomes a
refugee it violates any rights that depend to any extent for their
full and effective enjoyment on a person's ability to live in his
own country. Successor governments remain bound by the
responsibility incurred by predecessor governments.
Under humanitarian law states have an obligation
to pay compensation for breaches of their obligations in accordance
with Article 3 of the 1907 Hague Convention (IV) respecting the Laws
and Customs of War on Land, Article 148 Fourth Geneva Convention,
and Article 91 Protocol I. The Hague Regulations annexed to the 1907
Convention provide for the individual right to demand an indemnity
for losses sustained in cases of violations. The Geneva Convention
relative to the Protection of Civilian Persons in Time of War also
provides that an Occupying Power make arrangements to ensure that
fair value is paid for any requisitioned goods.
Numerous human rights
instruments include express provisions relating to the right of
every individual to an effective remedy for human rights violations.
The right to an effective remedy is found in the Universal
Declaration of Human Rights and the International Covenant on Civil
and Political Rights. The International Covenant on Civil and
Political Rights recognize an "enforceable right to compensation."
The International Convention on the Elimination of All Forms of
Racial Discrimination provides for the right to seek "just and
adequate reparation or satisfaction for any damage suffered." The
right to adequate, fair or an enforceable right to compensation is
also found in all three regional human rights conventions (i.e.,
African, inter-American and European).
Under international refugee law states have focused on return and
housing and property restitution rather than refugee compensation. Compensation is not a substitute for return and restitution. In 1992 the International Law Commission adopted the Declaration
of Principles of International Law on Compensation to Refugees.
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