Full Reparation Research Articles

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

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.

INDENIZAÇÃO PUNITIVA NO CÓDIGO CIVIL BRASILEIRO: A REPETIÇÃO DE INDÉBITO EM DOBRO DO ARTIGO 940 COMO INSTITUTO JURÍDICO EQUIPARADO

ABSTRACT: Conceived within the Anglo-American tradition of the 18th century, punitive damages emerge as a distinct form of sanction intended to reflect the role of civil liability through a modern perspective. Originating from case law and customary practices, this foreign institution underscores the inadequacy of compensatory and restitutive functions in restoring the status quo ante in cases of bad faith or significant culpability of the offender, particularly when the wrongdoing stems from the pursuit of personal gain. Thus, the details of the case become crucial in assessing the agent’s conduct, with a rigorous examination of intent. By adopting the Theory of Deterrence, civil law acquires a preventive character, countering the recurrence of egregious harmful acts within social interactions, aiming to safeguard objective good faith in private relations. This article, therefore, traces the historical roots and conceptual evolution of this model over time, highlighting its distinctions from traditional compensatory methods, under the principles of unjust enrichment and full reparation. Finally, the study explores the potential equivalence to the double recovery provision under Article 940 of the Civil Code. Through a theoretical and deductive approach, utilizing qualitative, foundational, explanatory, and bibliographic methods, and viewed through the lens of comparative law, the initial hypothesis is confirmed, with reservations.

Rethinking the ‘Full Reparation’ standard in energy investment arbitration: how to take climate change into account

Abstract One crucial measure to curb global warming is the phasing out of fossil fuel production, but doing so can deprive the value of foreign investments in fossil fuels and amount to breaches of investment treaties. Normally, investment treaties are silent about the standards of compensation when treaty violations are established. Tribunals mostly refer to the ‘full reparation’ standard in general international law, potentially resulting in high amounts of compensation that place a significant burden on States implementing climate actions. This paper argues that the amount of compensation under the ‘full reparation’ standard can be reduced on four grounds: (i) depressed energy price in the peak demand era, (ii) unviability of fossil fuel projects, (iii) international environmental obligations, and (iv) international environmental principles. An interpretation document entered into by States can clarify the application of the ‘full reparation’ standard and ensure that these factors are taken into account in quantifying compensation.

Contributory Fault in International Investment Arbitration

As a general rule, if a state commits a wrongful act, it is under an obligation to make full reparation for the injury caused. Yet, arbitral tribunals have used the doctrine of contributory fault to reduce the amount of damages awarded to the investor for the state’s breach of an investment treaty. This article analyses fifteen arbitration cases in which the respondent argued that the claimant contributed to its injury, either as a result of the investor’s bad business judgment or because the investor’s behaviour provoked the state’s wrongful conduct. The analysis shows that arbitral tribunals supported their decisions to reduce the amount of compensation by as much as 50% with strikingly brief reasoning and instead relied on their wide margin of discretion. The article discusses possible avenues to remedy deficiencies in arbitral practice dealing with contributory fault, both through the reform of investor-state dispute settlement and practical solutions that may be adopted by arbitral tribunals when considering allegations of contributory fault.

Reparation as a condition of the non-prosecution agreement in crimes against the tax system

This article problematizes the reparation of damage as a condition of the non-prosecution agreement (NPA) in crimes against Brazilian tax system. The applicability of this condition is addressed in crimes where the full reparation of the damage (payment of the tax) already has the effect of extinguishing criminal liability. This research is intended to answer the following problems: (i) Is the NPA applicable in tax crimes? (ii) Must the reparation of the damage, as a condition of the NPA, cover the full value of the tax, including interests and fines? (iii) Is the reparation of the damage always necessary to sign a NPA? The expectation of advantage to the accused, provided by the agreement as a negotiated justice instrument, is considered as a condition of its own meaning and effectiveness. On the other hand, the expectation of protection of the legal interest is considered in light of the sufficiency of the agreement as an instrument of prevention and repression of tax crimes. Possible ways of reconciling these expectations are delimited as hypotheses, through solutions such as a restricted understanding of the reparation of damage and the viability of partial reparation. The research is qualitative, exploratory, and propositional, based on the analysis of specialized legislation and literature.

El desarrollo decisional de la jurisprudencia del Consejo de Estado colombiano en cuanto a la reparación del daño ambiental consecutivo directo

Between 2004 and 2021, the jurisprudence of the Colombian Council of State on tort liability addressed the study of cases in which the plaintiff, attributing environmental damage to the State, sought full reparation of damages. Given that these damages may deprive certain persons of the use or enjoyment of the values that the ecosystems they inhabit provide them, this research aims to answer the question of what is the ideal way to order the reparation of harm attributable to the State, of the individual facet of the constitutional right to a healthy environment. For this purpose, the methodology of the jurisprudential line proposed by López Medina (2006) is applied to those cases where direct consequential environmental damage is attributable to the State, arguing that the ideal way to compensate for this type of damage is reparation in kind. It is suggested that disregard for the individual facet of the right to a healthy environment in the contentious administrative jurisdiction implies that the reparation of environmental damage is partial; therefore, the study proposes as a solution a sentence in which the Council of State unifies its jurisprudence recognizing the individual facet of this right.

Analysis of the application and impact on fundamental rights of the principle of full reparation in Ecuador

The article examines the application of the principle of comprehensive reparation in the Ecuadorian Constitution and its impact on the protection and effectiveness of fundamental rights. This analysis is conducted through a bibliographic review, exploring academic literature, legal texts, jurisprudence, and human rights documents, combined with an examination of the Constitution, laws, regulations, government policies, and reports from international organizations. The analysis employs both legal and content analysis methodologies. The result is a study of the legal and jurisprudential framework related to comprehensive reparation, reviewing its implementation in specific cases and its impact on social justice and equity in the country. Additionally, it identifies the challenges and opportunities presented by this approach to strengthen the human rights system in Ecuador.

Is full reparation in the constitutional context a fundamental right: general analytical references?

The history of law has shown us that although there are certain institutions that have appeared throughout its development in certain branches of law, it is no less true that in the course of its development other areas have incorporated them to their field of action. This is what presents the current situation of integral reparation in the constitutional context, which has conditioned its most elementary needs in its fulfillment of concrete designs like any other sector of the Law. Due to the characteristics of this juridical institution that starts in Private Law, but that nevertheless the constitutional law also takes it and imposes its own functions on it, we do not hesitate to affirm that reparation is a constitutional right.

Remedying the environmental impacts of war: Challenges and perspectives for full reparation

AbstractWhile the law of State responsibility, particularly the principle of full reparation, provides general guidance for achieving full reparation, it is not quite obvious what kinds of reparation qualify as “full” and how to actualize full reparation. This article centres on the principles, approaches and methods surrounding full reparation for armed conflict-related environmental damage in the law of State responsibility. It examines how the environment is legally defined as an object of protection under international law, and discusses practical challenges in international compensation for wartime environmental damage. In doing so, it ascertains the underlying objective of full reparation, develops an approach to assessing wartime environmental damage, and draws on experiences of international jurisprudence to quantify compensation for wartime environmental damage.

Specificity of the Patrimonial Liability in Labor Law, as a Form of the Civil Legal Liability

Increasingly common in labor law disputes, the petitions regarding the award of non-material damages to applicant are subject to judicial review they are working to ensure full compensation in case of illegal conduct also in labor law. Despite the fact that the labor law does not protect and does not have as its object the non-patrimonial aspects of the parties, as repercussions on the injured person, the full reparation is ensured by repairing the moral suffering that is generated by the illegality, including with regard to the employment relationship. All the more we could say that the repair can also have a moral side in the conditions in which the parts of the employment relationship, especially the employee, invest his knowledge, time, and skills, elements related to his personality and attitude. The analysis proposed by that article seeks precisely to justify non-material damages, on the principles of tortious liability, in the context of contractual liability such as that in employment relationships, including the fact that it is possible to engage the employee's moral responsibility towards an individual employer.

Cashing-In on the Energy Transition?

Abstract Damages assessment in investor-State dispute settlement (ISDS) entail major financial, behavioural, and political consequences upon host States. In fact, damages unreflecting the actual value of investments in energy assets can over-induce investments on the investors’ side and curtail host States’ regulatory space against the unfolding climate change crisis. This contribution investigates the practice of ISDS tribunals on damages assessment in cases dealing with the rollback of support schemes for renewable energy infrastructures brought against Italy and Spain. It acknowledges a narrow, yet consistent approach to quantum, which foregoes elements of balancing and equity in applying the general standard of full reparation enshrined under public international law. Hence a change of paradigm is advocated, whereby ISDS tribunals engage deeply with both the inherent elements of renewable energy investments as well as the ongoing regulatory constraints posed by the dire need to adopt more stringent climate policies domestically.

Unjust enrichment in investor–State arbitration: A principled limit on compensation for future income from fossil fuels

AbstractIf States take seriously the Paris Agreement's mitigation goal by phasing out the use of fossil fuels in energy production, investor–State arbitration could allow claimants to recoup lost value. In awards of compensation, tribunals typically apply forward‐looking, income‐based valuation methods to quantify future cash flows. But such methods may lead to upward redistribution of wealth and expansion of fossil fuel production. This article recalls the prohibition against unjust enrichment as a general principle of law that complements the obligation to make full reparation by ensuring that any compensation does not undermine some legally recognized allocation of benefits and burdens. The Paris Agreement's distributive scheme may thus impose a principled limit on compensation for future income from stranded fossil fuel assets when a tribunal determines the appropriate method of valuation, thereby ensuring that investor–State arbitration does not enrich claimants to the detriment of State capacity in climate mitigation and adaptation.

Evaluation of Damage to Wetland Ecosystems in International Compensation: Compensability, Quantification and Equitable Considerations

Abstract Wetlands are among the most productive and sensitive ecosystems of particular importance and harm to this type of environment should be treated with a high degree of seriousness. The obligation to protect wetland ecosystems can be derived both from treaties and from general international law, and damage to wetland ecosystems entails an obligation to make reparation in an adequate form. Where appropriate, compensation should be provided in order to ensure full reparation. However, no specific method of valuation is prescribed by international law for the purpose of compensation for environmental damage, and the need to have operable guidelines for valuing environmental damage thus arises. This article aims to contemplate the approach for evaluating damages to wetland ecosystems, that is, how to decide on the amount of compensation due for damages to wetland ecosystem services. At the outset, the sources of an international obligation to protect wetland ecosystems and the compensability of damage to wetland ecosystems, notably ecosystem services, are analyzed. After explaining the difficulties concerning the quantification of wetland ecosystem services, the article introduces a range of valuation techniques relating to valuing wetland services. Then it outlines the key considerations that facilitate the choice among competing techniques and approaches in international judicial proceedings. In the end, it points out that under certain circumstances, equitable considerations may be drawn upon to determine the quantum of compensation. The ultimate goal is to facilitate the development of a legal framework for evaluating damages to wetland ecosystems.

Crippling Compensation in the International Law Commission and Investor–State Arbitration

Abstract Is there an exception to the principle of full reparation in international investment arbitration for cases in which full compensation is crippling for the responsible State or its peoples? The routine presentation and consideration of billion-dollar-plus investment arbitration claims in the first half of 2021 suggests that this subject has not been invented in order to enable it to be written about but is one of considerable importance for the field of international investment law and its actors. The frame of reference in a discussion about compensation in investment law is provided by the law of State responsibility, strongly shaped by the 2001 International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (2001 ILC Articles on State Responsibility), which treat crippling compensation as permissible as a matter of content of responsibility. The argument for the permissibility of crippling compensation explicitly assumed the rarity of such claims; safeguards in primary, secondary, and tertiary rules for the few cases when they did arise; and the enlightened self-interest of States as repeat-playing actors in not making them—and perhaps implicitly scepticism about compound interest and Discount Cash Flow valuation. None of these assumptions holds true in modern investor State arbitration. Nevertheless, the predominant reaction to crippling compensation claims has been silence by tribunals and respondent States, suggestive in legal terms of endorsement of their permissibility in line with the 2001 ILC Articles on State Responsibility. There is some scope for addressing crippling compensation within the 2001 ILC Articles on State Responsibility, both indirectly (challenging the meaningfulness of the question in the first place or considering crippling compensation as part of the general discussion of the content of responsibility) and directly, under the rubrics of circumstances precluding wrongfulness and enforcement. The case can also be made for moving beyond the 2001 ILC Articles on State Responsibility, by emphasising the difference between implementation of responsibility in inter-State and investor–State legal relations or even directly arguing for a change of the applicable customary rule.

International Humanitarian Law Perspective on Un-Targeting Attack

The Syrian conflict started on January 26th, 2011. At first, the conflict in Syria was an internal conflict between the government of Bashar Al Assad and the Rebel, the descent into war began with the violent and brutal repression of peaceful pro-reform protests, which later turned into an armed uprising against the regime of Bashar al-Assad, and has since become a regional conflict involving state and non-state actors. In the development of the conflict, some parties intervened to provide support for the Bashar al-Assad. One of the countries that intervene against Syria is Russia. In the armed conflict which happened in Syria on September 2015 and early October 2016, more than 9,000 people, including 4,000 Syrian civilians, were killed by the Russian airstrikes. The International Humanitarian Law hostilities regulate the protection of victims of conflict and restrictions on the means and methods of warfare. This study aims to identify the obstacles of legal enforcement of international humanitarian law toward un-targeting attack in Syria. In addition, this study tries to reveal the responsibility of these states, both Russia and Syria for the loss and injury caused by an un-targeting attack. The result shows that the obstacles of law enforcement in Syria case caused Syria is not a state party in several international conventions. Therefore, these conventions are not applicable formally in the armed conflict in Syria. Based on International Humanitarian Law, Syria Government is responsible for the un-targeting attack that occurred in Syria, and required to make full reparation for the loss or injury caused by such violations. They are required to make full reparation for the loss or injury caused by an un-targeting attack. Furthermore, Individuals belonging to an Organizations or State are held personally responsible before the law. Then, the United Nations Security Council (UNSC) must carry out UN Charter Articles 41 and 42 and UNSC as the main organ responsible for maintaining international peace and security.

Managing the Risk of Self-Judging Security Exceptions Through Insurance: How Recent Mergers and Acquisitions Practice Copes with Investment Screening

Abstract In light of the limited possibility to seek legal recourse against screening of foreign investments on grounds of national security, can insurance provide an alternative avenue to compensate affected investors? The answer is: Yes, but with caveats. For investors, even if insurance does not provide an equivalent to full reparation, it can serve as a useful mitigant of the risk that contemplated investment transactions cannot be consummated as anticipated due to screening measures. For host States, insurance provides a useful mechanism by which they can facilitate compensation of investors without having to disclose information contrary to their essential security interests and thus a means by which host States can remain attractive to foreign direct investment in spite of investment screening.

Revisiting the Chorzów Factory Standard of Reparation – Its Relevance in Contemporary International Law and Practice

Abstract The Chorzów Factory standard of reparation has been consolidated in the mind-set of international actors since the International Law Commission’s Articles on State Responsibility were adopted in 2001. This article analyses to what extent the recent case law of the International Court of Justice and other international practice concerning injury to aliens and property rights, especially expropriations, reflect the Chorzów Factory standard. It does so by considering whether ‘full reparation’ is the central issue in international disputes that involve state responsibility, if restitutio in integrum prevails over other forms of redress, and if the amount of compensation is established in light of the principle of ‘full reparation’. The interaction between the secondary rules of state responsibility and the primary rules of expropriation will be considered in investor-state disputes. In addressing these questions, the role that adjudicating bodies understand they play in international law and the interests pursued by stakeholders – states and private investors – are examined.

Damages and Reparation in Energy Related Investment Treaty Arbitrations

Abstract International investment tribunals are frequently required to interpret and apply rules of Customary International Law (CIL) in investor-State disputes. This article examines how investor-State tribunals, in particular those constituted on the basis of the Energy Charter Treaty (ECT), have interpreted the CIL ‘full reparation’ standard regarding damages and reparation. By reference to ECT jurisprudence it is established that tribunals often utilize teleological interpretive tools to give content to this norm. Furthermore, some critical comments are made concerning the manner in which ECT tribunals subsequently apply the ‘full reparation’ standard. It is argued that the combination of the commonly adopted approaches to interpretation and application may explain why investors are occasionally capable of obtaining significant amounts of compensation in these public law disputes.

International Environmental Responsibility and Liability

The accountability of the subjects of international law for their acts and omissions, and the consequences thereof, is fundamental to the effectiveness and legitimacy of international law. Yet, the international environmental accountability of states remains a difficult and controversial topic, for both doctrinal and policy reasons. With few exceptions, states have not addressed this question in international environmental treaties, neither have international courts been burdened with cases or requests for advisory opinions on questions of environmental responsibility or liability of states. This article provides an analysis of the relationship between international environmental law and state responsibility, including a discussion of primary obligations, environmental harm, and the standard of care/due diligence. For the purpose of this article, accountability is used as an “umbrella term” and refers both to the responsibility of states and international organizations for internationally wrongful acts, as well as to their liability to make reparation for harm and damages resulting from their activities. Accountability for internationally illegal acts, such as breach of a treaty or the violation of customary law rules, is relatively well developed in general international law under the concept of state responsibility, though not in a codified, treaty-based manner and some uncertainties exist. In general, state responsibility refers to the accountability of a state for a violation of international law and is premised upon an internationally wrongful act which can be attributed to a state. Such internationally wrongful act can arise from the breach of an international legal obligation (“primary law”), established by treaty law (e.g. bilateral or multilateral environmental agreements) or by a customary norm of international law (for example the prohibition of environmental harm). The consequences of international responsibility for a wrongful act are the obligation of the wrong-doer to cease that act, to offer assurances of non-repetition, and to make full reparation of the injury caused by the internationally wrongful act, including compensation for environmental damage. On the other hand, rules for strict liability for environmental harm resulting from lawful activities are not so well established, and remain singular and exceptional. In general, states have shown little interest in setting up a general liability framework for environmental damage and only very few international environmental regimes impose liability and compensation schemes on states. Some issue-specific international environmental treaties impose civil liability on private actors, but do not establish a compensation scheme for states. Those liability rules are not used to prevent pollution or damage, but serve as a “backstop” to provide access to compensation when damage occurs despite the implementation of treaty rules that aim at preventing damage. Such damage can occur by accident or non-accidentally. In the later cases, compensation can be rewarded where a state did not exercise proper care so as not to cause adverse environmental effects to other states or areas beyond national jurisdiction or to prevent others in its territory from causing such effects. This standard is captured by the doctrine of “due diligence” which has been defined to require what a responsible government can be reasonably expected to do under normal conditions in a similar situation; applying its best practicable and available means. Due diligence does not refer only to unlawful omissions by a state, but also predominantly to the obligation of conduct to show proper care by exercising good government, management and control, for example, through enacting necessary legislation, effective law enforcement to prevent or terminate illegal activities.

Desenvolvimentismo e resistência no contexto de implantação de grandes projetos na Amazônia brasileira: a disputa territorial em torno das usinas hidroelétricas do Programa de Aceleração do Crescimento (PAC)

O presente artigo objetivou realizar uma reflexão sobre os efeitos da construção de usinas hidroelétricas na Amazônia Legal, sendo a articulação da sociedade civil frente a esses grandes empreendimentos a tônica de nossa análise. Buscamos observar os principais conflitos territoriais envolvendo as obras hidroelétricas do Programa de Aceleração do Crescimento (PAC), implementadas no período entre 2007 e 2014. Realizamos, ainda, uma análise a partir de uma Geografia Política da construção das usinas hidroelétricas e o surgimento de disputas territoriais entre agentes políticos, econômicos e empresariais e a sociedade civil e movimentos sociais. Nossa metodologia consistiu no levantamento de fontes bibliográficas e documentais acerca do tema, dados secundários e realização de trabalhos de campo nas localidades estudadas. Concluímos que a atuação articulada dos movimentos sociais de resistência é imprescindível para a existência de um contrapoder, no sentido da garantia de direitos fundamentais às populações afetadas pela implantação de projetos hidroelétricos, uma vez que a própria estrutura Estado-Capital pressupõe a ausência de reparação integral para esses povos.