When victims of international law violations turn to domestic legal systems to enforce their potential claims before the courts of the violating state, they face various legal hurdles. These include doctrines of judicial abdication, the lack of direct effect of international law, or the inaccessibility of domestic liability regimes. That is particularly so when it comes to cases that arise in the field of military and security operations (for instance: Markovic (Italy, 2000), Kunduz (Germany, 2016) or Rahmatullah (UK, 2017)). These enforcement difficulties stand in contrast to both an increasing trend to propagate individual rights in international law and the long-acknowledged importance of domestic legal systems for the enforcement of international law. Against this background, my dissertation project discusses how international law itself and international individual rights in particular influence the domestic enforceability of claims arising from violations of international law.
To this end, the thesis, firstly, proposes and develops the notion of ‘tertiary rights’ which complements the familiar dichotomy of primary and secondary rights. Tertiary rights, under this conceptual framework, are those rights that aim at supporting the enforcement of other (primary or secondary) rights. Examples of such tertiary rights are the right of access to a court and the right to an effective remedy. The addition of a third category of rights is useful because their design and function differ from their primary and secondary counterparts.
On this conceptual basis, the thesis’ second part analyses the impact of tertiary rights on the domestic enforceability of individual claims from a doctrinal perspective. With a focus on claims arising in the context of military and security operations abroad, it shows where domestic legal systems currently do not fulfil the requirements of tertiary rights on the one hand and where there is doctrinal room for further strengthening individual rights enforcement on the other.
Thirdly, the thesis argues that tertiary rights provide a useful normative framework for the analysis of the relationship between international law and domestic legal systems. While having inherent limits, they can serve as a platform for a more structured and consistent balancing between the competing interests at stake. Thus, an analysis of tertiary rights provides valuable input for the discussion whether a further individualisation or ‘rightsification’ of international law, and international law enforcement, is at all feasible and desirable.
Beinlich, Leander. Der Amtshaftungsanspruch und Auslandseinsätze der Bundeswehr – Eine verfassungsrechtliche und rechtsvergleichende Betrachtung aus Anlass des Kunduz-Urteils des Bundesgerichtshofs“ (gemeinsam mit Paulina Starski), in: Jahrbuch des öffentlichen Rechts der Gegenwart 66 (2018), 299-336.
Beinlich, Leander. Access granted, access barred? Exploring the interplay of human rights and states’ domestic liability regimes in the context of individual reparation claims. In: Marxsen/Peters (Hrsg.), Reparation for Victims of Armed Conflict: Impulses from the Max Planck Trialogues, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 78/3, 625-628 (2018).