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Donald Francis Donovan of Debevoise & Plimpton’s International Disputes Group moderated the panel, which addressed various approaches to implementing reparations for states’ internationally wrongful actions under international law. Panelists included Judge Margarette May Macaulay, Inter-American Commission on Human Rights (IACHR); Andrés Jana, Bofill Mir & Alvarez Jana Abogados; Makane Moïse Mbengue, University of Geneva Law School; and Judge Heikki Kanninen, General Court of the European Union.
After overviewing the IACHR’s work, Judge Macaulay highlighted the IACHR’s comprehensive approach to ordering reparations. Depending on the circumstances of the underlying violation, the IACHR has ordered compensation, restitution, and just satisfaction. Judge Macaulay also delineated the various purposes that reparation may serve, including compensating the victim and his or her family for the wrong committed, bringing the victim back to the position he or she was in prior to the wrong, establishing truth and justice, and ensuring non-repetition of the underlying wrong. In discussing the various goals that reparations may advance, Judge Macaulay, as well as Mr. Jana (discussed below), underscored the importance of just satisfaction as a means to signal to states that, with especially egregious behaviors, traditional damages are not alone sufficient. Instead, there needs to be additional acknowledgement of the state’s wrong, which just satisfaction may provide.
Mr. Jana’s presentation focused on reparations regarding investment arbitration matters. Throughout his discussion, Mr. Jana highlighted the tendency to issue compensation and restitution reparations as a means to either undo the wrongful act or undo the harm that emanated therefrom. Noting that claims arising from arbitration disputes rarely yield just satisfaction awards, Mr. Jana questioned why this was the case. In certain instances, more than compensation and restitution may be necessary to acknowledge and address the state’s wrongful act. Investment tribunals have seldom explored or utilized just satisfaction as a form of reparation, but doing so may serve important deterrent purposes to ensure non-repetition.
Professor Mbengue addressed reparations in the context of international environmental law. Underscoring the existing boundaries of applying reparations schemes to environmental matters, Professor Mbengue explained that reparations are based on the idea of restitution. However, most environmental damages are irreversible, precluding the possibility of ever truly restoring or reviving the status quo ante. This creates difficulties in transposing traditional reparations principles onto environmental issues. Though attempts have been made to enhance responsibility for environmental wrongs through imposing strict liability and strengthening liability for non-state actors, the international community still struggles to formulate effective rules regarding liability, responsibility, and compensation for environmental damages. Nevertheless, as Professor Mbengue emphasized, the rules of responsibility are hardly static, and the international community can go beyond the existing frontiers and develop a reparations regime more responsible to the peculiarities of environmental damage.
Judge Kanninen discussed the interplay between EU law and its member states’ domestic laws and reparations schemes. Judge Kanninen explained that EU directives are binding on member states; however, it is incumbent on the member state to itself implement those directives via domestic legislation. A member state’s failure to implement an EU directive constitutes a violation of EU law, which may be brought before domestic courts or the EU Court of Justice.
An individual may initiate a claim for this violation in his or her state’s domestic courts, when (1) the EU law infringed was intended to confer rights on the individual; (2) the relevant damage was sufficiently serious; and (3) there was a causal link between the state’s breach and the underlying damages. The EU may also investigate the alleged breach, potentially bringing the claim before the EU Court of Justice, which may then issue a declaratory judgment binding on the concerned state (though there is no enforcement mechanism). In the event that the state still neglects to implement the directive or abide by the declaratory judgment, the EU can then demand the non-complying state pay a lump sum or penalty payment until the state complies. Nevertheless, the factors to be considered in calculating this lump sum are hardly clear-cut and are often shaped by the violating state’s individual circumstances.
Laura Livingston is a Law Fellow at the Public International Law & Policy Group.