Peace and sustainability in reparations: an analysis of the debate on ‘capping reparations’ in relation to State responsibility due to a State’s level of wealth

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Under international law, States responsible for the harmful consequences of armed conflict must make ‘full reparation’. Reparations must re-establish the situation that would, in all probability, have existed had the responsible State not committed the internationally wrongful act. In the context of an armed conflict, reparations can pave the way for lasting peace and help States and their populations to rebuild sustainably post-conflict. However, there has been a debate about whether there should be a limit to the responsibility to provide full reparation when the responsible State claims that it cannot afford to provide it. A school of thought suggests that compensation should be ‘capped’ under international law to take account of the responsible State’s ostensible economic capacity to pay. This limitation on the customary international law norm is usually justified on the grounds of promoting and sustaining peace within/with that State. This article discusses the so-called ‘reparations cap’ with two inter-State cases in which the international courts or tribunals considered a State’s economic capacity a relevant consideration to the calculation of compensation: (i) the proceedings of the Eritrea–Ethiopia Claims Commission resulting from the armed conflict between Eritrea and Ethiopia and (ii) the International Court of Justice’s 2022 reparations judgment in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda). These two cases provide lessons for future litigation where a State considers in good faith that it does not have the economic capacity to pay compensation requested by another State.