In This Article Reparations

  • Introduction
  • General Overviews and Introductory Works
  • The Purpose of Reparation
  • The Rights of Individuals to Reparation
  • State Responsibility
  • Liability of Individuals before Domestic and International Courts
  • Nonstate Actors, Corporations, and Other Entities
  • International Organizations
  • Reparations for Large-Scale Historical Wrongs
  • Reparations for Injurious Consequences of Lawful Acts

International Law Reparations
by
Carla Ferstman
  • LAST MODIFIED: 23 March 2012
  • DOI: 10.1093/obo/9780199796953-0003

Introduction

Reparation refers to the process and result of remedying the damage or harm caused by an unlawful act. The purpose of reparation is generally understood to reestablish the situation that existed before the harm occurred. It can also serve as a measure to end ongoing breaches and to deter future ones, as a vehicle for reconciliation or to restore relations between the violator and injured parties, as well as a basis to repair or rehabilitate physical and psychological integrity and dignity. In international law, a breach of an international obligation gives rise to a duty to repair the harm caused. The obligation to make reparation follows a determination that a particular act caused, or sufficiently contributed to, the harm or damages and implies a level of wrongfulness. However, certain international law agreements may also impose an obligation to afford reparation for losses irrespective of fault. It has been recognized that reparation must “fully” repair any injury, including any material or moral damage caused by the wrongful act. It must, so far as possible, wipe out all the consequences of the illegal act and reestablish the situation that would, in all probability, have existed if that act had not been committed. The recognized forms of reparation are variably understood as restitution, compensation, rehabilitation, satisfaction, and guarantees of nonrepetition. These forms, afforded singly or in combination, feature in the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation, adopted by the UN General Assembly in 2006. Article 34 in the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts lists restitution, compensation, and satisfaction as the forms of reparation. Cessation and nonrepetition are dealt with separately, as independent obligations stemming from the wrongful act. Restitution relates to the reestablishment of the situation that existed before the wrongful act was committed. Compensation is for any pecuniary and nonpecuniary losses, including loss of profits and employment. Rehabilitation refers to long-term medical and psychological care and surgeries as well as legal care, whereas satisfaction refers to measures such as formal acknowledgment of the unlawful character of the breach, apologies, and prosecutions. Guarantees of nonrepetition are forward-looking remedies focusing on prevention that can refer to either measures of deterrence aimed at protecting a victim from further harm or broader measures, such as legal and institutional reform and vetting of public officials aimed at avoiding the wider conditions that allowed for the breach.

General Overviews and Introductory Works

The literature on reparation in international law tends to be specialized, narrow, and issue or context specific. General public international law textbooks and more theoretical treatises, such as Brownlie 2008; Shaw 2006; and Daillier, et al. 2009 include, in sections covering state responsibility, some reference to compensation and damages, though the overall treatment of reparations is limited. These texts provide only limited guidance on the topic beyond the iteration of the International Law Commission (ILC) in its consideration of reparations. An exception is Gray 1987, which still provokes new insights almost twenty-five years after its original publication. Other overview texts that delve deeply into the topic of reparations tend to focus on human rights and humanitarian law, though they review the broader materials. The most important of these is Shelton 2005, the first edition of which was awarded the Certificate of Merit from the American Society of International Law in 2000. Shelton’s treatise was the first to capture the often opaque reparations processes of regional and international courts, in many ways setting the stage for a new discipline of inquiry, which had previously focused almost exclusively on the didactic components of judgments, not on their practical enforcement. Other seminal readings on reparations are contained in the following edited collections: Randelzhofer and Tomuschat 1999; Evans 1998; International Bureau of the Permanent Court of Arbitration 2006; and de Feyter, et al. 2006. Randelzhofer and Tomuschat 1999 contains a number of gem articles written by leading public international law academics and also captures the lively discussions of the eminent colloquium participants after each section of the text. Particularly instructive chapters include the introductory one by Tomuschat, Riccardo Pisillo-Mazzeschi’s chapter on international obligations, and the chapter on rehabilitation and compensation programs relating to violations in East Germany written by Bardo Fassbender. Randelzhofer and Tomuschat 1999 is complemented by Evans 1998, a collection that considers the remedial practice of numerous public international institutions. The institutional focus is taken one step further in the Permanent Court of Arbitration 2006 volume, which, through comparisons of numerous mass claims processes, attempts to define the best-practice procedures for reparations claims. This stands in contrast to the contributions in de Feyter, et al. 2006, which take a broader, multidisciplinary approach to the topic of reparations, analyzing not only its legal basis, but also the social, political, and moral contexts that underpin it.

  • Brownlie, Ian. Principles of Public International Law. 7th ed. Oxford: Oxford University Press, 2008.

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    Classic international law textbook by the late Professor Brownlie, QC, which provides important insights into the development of his thinking about fundamental areas of public international law.

  • Daillier, Patrick, Mathias Forteau, and Alain Pellet. Droit international public. 8th ed. Paris: Librairie Générale de Droit et de Jurisprudence, 2009.

    E-mail Citation »

    The most important French-language textbook on public international law from leading experts in the field.

  • de Feyter, Koen, Stephan Parmentier, Marc Bossuyt, and Paul Lemmens, eds. Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations. Antwerp, Belgium: Intersentia, 2006.

    E-mail Citation »

    Sets out the normative underpinning of the concept of reparations, considering also the broader social and political contexts, then turns to an exploration of reparations in the context of transitional justice. It is the product of a research study undertaken by the University of Antwerp and the Catholic University of Leuven between 2000 and 2004.

  • Evans, Malcolm, and Stratos Konstadinides, eds. Remedies in International Law: The Institutional Dilemma. Oxford: Hart, 1998.

    E-mail Citation »

    Includes essays by scholars and practitioners on reparations before a range of institutions, including the International Court of Justice, the Law of the Sea Convention, the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO), and environmental settlement systems as well as under the European Union and Community law.

  • Gray, Christine. Judicial Remedies in International Law. Oxford Monographs in International Law. Oxford: Clarendon, 1987.

    E-mail Citation »

    Provides one of the first studies of remedies in international law, considering the practice of international arbitral tribunals, the Permanent Court of International Justice, and the International Court of Justice as well as the practice of human rights courts.

  • International Bureau of the Permanent Court of Arbitration, ed. Redressing Injustices through Mass Claims Processes: Innovative Responses to Unique Challenges. Oxford: Oxford University Press, 2006.

    E-mail Citation »

    Provides an insider look at the handling and processing of massive-scale claims, including Holocaust restitution programs, with a view to distilling “lessons learned” or best practices.

  • Randelzhofer, Albrecht, and Christian Tomuschat, eds. State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights. The Hague: Kluwer, 1999.

    E-mail Citation »

    Prepared following a colloquium on the same topic that took place in Berlin in 1998, with the backdrop of the ongoing consideration by the ILC of the Draft Articles on State Responsibility. The collection includes the lively discussions from the eminent colloquium participants after each chapter.

  • Shaw, Malcolm. International Law. 6th ed. Cambridge, UK: Cambridge University Press, 2006.

    E-mail Citation »

    Superb introductory text that provides an overview of the topic and persuasive analysis from one of the leading scholars in the field.

  • Shelton, Dinah. Remedies in International Human Rights Law. 2d ed. Oxford: Oxford University Press, 2005.

    E-mail Citation »

    A classic and authoritative text providing arguably the most comprehensive overview of the subject.

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