The right to compensation for victims of racial discrimination

Abstract: This thesis analyses the question of the right to compensation for victims of racial discrimination. The purpose is first of all to determine whether or not victims of racial discrimination have a right to compensation under international human rights law and to establish the content and limits of such a right. In order to achieve this purpose four specific questions are examined, namely: 1. Is there a right to compensation for victims of racial discrimination under international human rights law? 2. Who is the holder of such a right? 3. Who is the part liable for compensation? and 4. What kind of damage is compensated? After a brief presentation of the practise of racial discrimination today and its legal definition follows a comprehensive analysis based mainly of jurisprudence examined according to the judicial method and on studies undertaken by Theo van Boven, expert and member of the Committee on the Elimination of Racial Discrimination. I conclude that at least art 6 International Convention on the Elimination of All Forms of Racial Discrimination entitle victims of racial discrimination a right to reparation, including compensation in appropriate cases. It is further the individual victim who is the holder of this right. The party liable for providing reparation is primarily the direct perpetrator, which in turn could be either the state or a private actor. In cases where the direct perpetrator is a person acting in his or her own capacity but where the victim is denied reparation because of failure on behalf of the state to provide an effective remedy can the state be held responsible for reparation. A reasonable interpretation of the International Convention on the Elimination of All Forms of Racial Discrimination means that pecuniary and physical harm and suffering shall be fully compensated. Regarding mental suffering is an affirmative judgement on the merits considered a form of reparation and jurisprudence is restrictive regarding additional relief. States further seem to have a margin of appreciation to require certain level of gravity of harm. This might be a consequence of the fact that art 6 is primarily a right to seek and obtain reparation in accordance with national law as long as national legislation or enforcement is not in conflict with international standards, and such international standards are still very vague.