Principle Of Reparation Research Articles

Reparations of the horse? Algorithmic reparation and overspecialized remedies

In his seminal article, “Cyberspace and the Law of the Horse,” Frank Easterbrook criticized the scholarly trend of developing overspecialized legal approaches to emerging technologies. Easterbrook argued that these approaches are confusing, shallow, and superfluous. Algorithmic reparation has emerged as a framework for addressing algorithmic systems’ role in inequity and injustice. One understanding of algorithmic reparation is as a method for repairing algorithmic harms. This article examines how this understanding fares against the “law of the horse” critique by posing two questions. First, is algorithmic reparation overspecialized in its methods? Second, is algorithmic reparation overspecialized in the harm it targets? If its methods are too particularized, then algorithmic reparation will only work within a narrow range of circumstances and may undercut a more robust conception of remedies for algorithmic injustice. If the harm it targets is too particularized, then algorithmic reparation will result in incomplete or misguided redress of harms. We determine that algorithmic reparation is not too specific in its methods by demonstrating how–under algorithmic reparation principles–existing methods for reparations can be applied to address algorithmic harm. We also determine that algorithmic reparation can sometimes be too narrow in the harm it targets, which can reduce its effectiveness. When an algorithmic system is both necessary and sufficient for a harm to occur, algorithmic reparation is an effective method of redress. But when an algorithmic system is not necessary and sufficient for a given harm, algorithmic reparation may be incomplete, only temporarily effective, or miss the mark entirely.

Better Late than Never: Reparations for Sexual Violence in the Ntaganda case before the International Criminal Court

The Prosecutor v Bosco Ntaganda case at the International Criminal Court (ICC) represents the long awaited first reparation order for sexual violence at the court. This will hopefully see the implementation of reparations for the war crimes and crimes against humanity of rape and sexual slavery among civilians and former child soldiers, after previous cases such as against Jean-Pierre Bembe and Laurent Gbagbo were acquitted of rape. This article drawing from the author's role as a reparation expert in the case, is a reflection on the challenges of designing and providing reparations at the ICC against convicted individuals, as well as amidst insecurity and the COVID-19 infectious disease pandemic. It begins by discussing how the Ntaganda reparation order expanded reparation principles for the first time since the Lubanga case, in particular for crimes of a sexual nature. This is followed by an outline of some of the harms as a result of sexual violence from the perspective of an expert with a medical background. The analysis then turns to the appropriate reparations in this case and the details contained within the chamber's reparation order. Final conclusions consider how the procedural and substantive elements of reparations in this case will be instructive to future cases that address sexual violence. Ultimately, key insights are offered on the modest contribution an appointed reparation expert can do in assisting a trial chamber in the reparation process.

Reparations without reparation: A critique of the Germany–Namibia Accord on colonial genocide

Reparation is meant for effect: to make amends. The offer of EUR 1,100 million by the Federal Republic of Germany to the Republic of Namibia, in an agreement of June 2021, for the genocide committed during the colonial-era occupation encourages debate about the categorisation and effect of the payment in the fields of human rights and international criminal justice. The genocide was characterised by the loss of the lives of thousands of people among the Nama and Herero of Namibia between 1904 and 1908. In a pioneering analysis, this article reiterates the principles of reparation in international criminal jurisprudence as a yardstick for this significant gesture of remorse. Reparations must meet both procedural and substantive requirements: they must be proportional, appropriate, prompt and adequate, and they must culminate from a process that ensures the meaningful participation of victims and judicious regard for all relevant factors and circumstances. Reparations for the sake of it, without the remedial effect, make a mockery of justice. An agreement for development aid, however generous, cannot meet the standards of reparation for gross human rights violations. It does not oust the jurisdiction of a competent court on the matter and the pre-emptive clause intended to make the financial component in the Germany–Namibia Accord conclusive is unenforceable. This significant discourse must be guided by clearly set standards to avoid replicating the power dynamics which characterised the commission of the crimes that are intended to be addressed. Furthermore, the distinct treatment of victims on the basis of race and colonial history is repugnant and not defensible. A formidable institutional framework is needed for reparations for the trans-Atlantic trade and trafficking in enslaved Africans and colonial crimes, comprising a United Nations independent mechanism and a specialised committee of the African Union, supported by national committees of the respective countries.

PRINCÍPIO DA REPARAÇÃO E SUA APLICABILIDADE NO ESTADO DO AMAZONAS

De relevância, tanto nacional, quanto internacional, o Direito Ambiental é a fonte dos princípios e mecanismos para que possamos minimizar os danos e impactos negativos ao meio ambiente local e global. O princípio da reparação aqui estudado, nos dá esse auxílio, trazendo uma maior efetividade na eplicabilidade das sanções por danao ao meio ambiente. Este trabalho teve por objetivo a investigação da aplicabilidade da reparação pela análise de suas formas, buscando a apresentação da legislação a ela relacionada e sua abrangência, identificando o destino dado aoas valores das reparações pecuniárias, a fim de justicicar sua cobrança na área ambiental. Para responder a esses objetivos foi efetuada revisão bibliográfica tendo como base a doutrina, a legislação e a jurisprudência. Os resultados apontam para uma obrigação de utilização dos recursos provenientes das sanções, tanto administrativas quanto judiciais, na reparação ou recomposição dos danos ambientais causados e a manutenção do equilíbrio ecológico, conforme determinação da nossa Carta Magna.

Reparation Modalities at the Extraordinary Chambers in the Courts of Cambodia (ECCC)

Abstract In the last decade, the ECCC has ordered reparations for victims of the Khmer Rouge’s mass atrocities committed in Cambodia during the 1970s. Various scholars have examined those reparations ordered by the ECCC. Yet, this is the first academic piece to assess the ECCC’s reparation modalities under the UN Reparation Principles, which contain key standards on reparations for victims of atrocities. Overall, the ECCC has ordered important rehabilitation, satisfaction and guarantees of non-repetition measures to redress victims’ harm. This is a meaningful current development with regard to reparations for victims of atrocities. However, the ECCC’s reparation law and practice exhibits some important deficits under the UN Reparation Principles. At the ECCC, restitution and compensation are excluded and the range of guarantees of non-repetition has been limited. Nonetheless, these deficits must be considered within the ECCC’s mandate as an internationalised criminal court.

Revisiting Vattel’s Law of Nations to Discern the Classical Principles of the International Investment Law

The present paper seeks to examine various issues of the contemporary International Investment Law within the classical international law framework found in Vattel’s Law of Nations written in the mid of the eighteenth century. On study it is found that Vattel’s work is an enriching source for the natural law principles contextually applicable to the contemporary international investment law. It is found that many of the contemporary international law institutions for protection of foreign investments like the scope and standards for protection of foreign investments, principles of reparation, exhaustion of local remedies, diplomatic protection, treaty based protection for foreign investments, measures for peaceful and coercive dispute resolution etc. can be traced in Vattel’s classical work. Contextualization of Vattel’s classical work to the contemporary issues of international investment law has the potential to enrich the contemporary literatures and jurisprudence on international investment law, particularly from the perspectives of pragmatic natural law philosophy.

La responsabilidad civil por medicamentos defectuosos, una aproximación de Derecho comparado

This paper includes a comparative approach to the scope and legal nature of civil liability due to defective medical products in comparative law, particularly in the case of the United States, the European Union and some representative countries such as France, Spain, Germany and Colombia. The objective is to identify the main characteristics of the civil liability regime applicable to damages caused by defective drugs, as well as case-law developments in the matter, which allow to understand and highlight within a comparative context, the strengths, weaknesses, similarities and differences that underlie the different law sources that recognize the principle of reparation of the damage as a corollary of civil liability regarding defective medicines.

La réforme du droit de la responsabilité civile : regards croisés vietnamo-français

In both France and Vietnam, the reform of civil liability law is part of the reform of civil law in general. In Vietnam, placed at the heart of the reform, the law on liability experienced significant changes on several points, such as the role of fault, the conditions engaging liability, causes of exemption of liability, the duty to mitigate damages, types of damages, the principle of reparation, victime behaviour ... In a comparative approach, we will compare the Vietnamese solutions of 2015 with the proposals in the draft reform of the law on civil liability made public for consultation by the Keeper of the Seals Jean-Jacques Urvoas, on Mars 13, 2017. The subjects studied will be presented in two parts dealing with the novelties linking the two responsibilities and the novelties specific to the extracontractual responsibility.

Stabilisation Clauses and the Right of Reparation Under International Energy Investment Law: A Confused State of Affairs

This paper sets out to determine the extent to which the rulings of international tribunals have been influenced by the presence of stabilisation clauses vis-a-vis the right of reparation. To that effect, it first examines the different approaches to stability found in the law of international investments, zeroing in on contract-based stability, so as to analyse the stabilisation language commonly used by lawyers drafting international investment contracts (i.e. freezing, economic equilibrium or hybrid). Additionally, it considers the roots of such clauses dating back to the early 20th century; the rationale behind their use; the discussion on their legal validity when opposed to the sovereignty of States to regulate in the public interest; and the question of their efficacy (or lack thereof) in isolating investors from risk. Subsequently, the focus shifts to the right of reparation under international law. To this end, it considers the general principle of reparation established in the Chorzow Factory judgment, all the while separating the concepts of ‘compensation’ and ‘damages’ as subcategories of the notion of ‘reparation’, and also the application of damnum emergens and lucrum cessans in regards to the cause of reparation (i.e. expropriation or nationalisation, breach of international law, breach of contract). Finally, by bringing together the ideas and theories explored in the foregoing sections, this paper demonstrates the confused state of affairs across the board of some of the most significant arbitral awards dealing with stabilisation clauses in the energy sector, as to the proper standard for the quantification of compensation or damages in the face of a stabilisation clause.

A special responsibility to protect: the UK, Australia and the rise of Islamic State

In the summer of 2014 Islamic State in Iraq and Syria (ISIS) emerged as a threat to the Iraqi people. This article asks whether the UK and Australia had a ‘special’ responsibility to protect (R2P) those being threatened. It focuses on two middle-ranking powers (as opposed to the US) in order to highlight the significance of special responsibilities that flow only from the principle of reparation rather than capability. The article contends that despite casting their response in terms of a general responsibility, the UK and Australia did indeed bear a special responsibility based on this principle. Rather than making the argument that the 2003 coalition that invaded Iraq created ISIS, it is argued that it is the vulnerable position in which Iraqis were placed as a consequence of the invasion that grounds the UK and Australia's special responsibility to protect. The article addresses the claim that the UK and Australia were not culpable because they did not act negligently or recklessly in 2003 by drawing on Tony Honore's concept of ‘outcome responsibility’. The finding of a special responsibility is significant because it is often thought of as being more demanding than a general responsibility. In this context, the article further argues that the response of these two states falls short of reasonable moral expectations. This does not mean the UK and Australia should be doing more militarily. R2P does not begin and end with military action. Rather the article argues that the special responsibility to protect can be discharged through humanitarian aid and a more generous asylum policy.

The need to repair

Since World War II the need to repair became progressively a human rights concern and a victim-oriented endeavour. Twenty years ago REDRESS TRUST was founded and this young and vibrant organisation developed into a widely appreciated actor in the quest for reparative justice. REDRESS distinguished itself by applying a variety of effective means and methods,including high-quality and thorough studies, intercessions to hold perpetrators accountable and securing remedies to victims and obtaining reparations for survivors of torture. There is still a striking gap between proclaimed standards of justice and harsh realities leaving large categories of victims unnoticed, unacknowledged and unattended. Domestic legal and social orders disclose legal shortcomings, political obstacles, lack of resources and incapacity of the most vulnerable segments of victimized groups and individuals to get effective access to reparative justice. While the UN Reparation Principles provide a good deal of latitude in affording various forms of monetary and non-monetary reparations, any margins or latitudes in shaping reparative policies and programmes may never ignore the principles of non-discrimination and non-exclusion.

Constitutionalization and the Unity of the Law of International Responsibility

The law of international responsiblity serves two main goals: providing reparation of individual states (or other victims) and the preservation of public order. Traditionally it has been held that despite these quite different aims, the law of of international responsibility is of a unitary nature, consisting of a single set of principles that applies to all breaches of all rules of international law. The article argues that in present international law thus unity cannot be maintained. On the one hand there is need for more refined principles of reparation and compensation. On the other hand there is a need for better accountability principles. Just as domestic law does not treat tort law and constitutional or administrative law under one set principles, international responsiblity must be more differentiated if it wishes to remain relevant in the 21st century.

Forgotten Victims of Military Humanitarian Intervention: A Case for the Principle of Reparation?

The purpose of this article is briefly to present a case for the principle of reparation as a new jus in bello principle for just humanitarian intervention. The article is divided into three sections. In “Restorative Justice and Civilian Protection”, I investigate the idea of restorative justice in order to consider whether or not it can complement the shortcomings of the just war tradition in civilian protection. In “The Legal Framework on Reparation: Its Scope and Limitations”, I examine the scope of the law of armed conflict on reparatory measures in order to consider whether and how ideas of and measures for restorative justice might be incorporated in the jus in bello framework for military humanitarian intervention. In “The Issue of Civilian Victims: A Case for Reparation”, I explore the implications of reparatory measures for victims in order to suggest that these measures are not only beneficial to civilian victims but also imperative to be taken by the interveners if they undertake military intervention within the jus in bello framework and claim its moral justifiability.

American psychoanalysts who influenced Eugene O'Neill's Long Day's Journey Into Night.

Eugene O’Neill’s finest play, Long Day’s Journey Into Night, owes enormously to the direct and personal influence of two American psychoanalysts, Smith Ely Jelliffe and Gilbert VanTassel Hamilton. Each independently taught O’Neill as well as some of his co-workers psychoanalytic theory, and collaborated in projects leading to publications. Jelliffe and Hamilton steered O’Neill and his colleagues to the writings of Freud, Jung, Edward Kempf, and Adolf Meyer, and discussed the material with them. Thus, their orientation and therapeutic efforts infuse this American classic. Eugene O’Neill, a Nobel laureate often cited as the “father of American drama” (Gassner, 1967), spotlighted the troubled family, writing first of families in crises and later depicting them over many generations. Fascinated by family dynamics, he had embarked on a series of nine plays he called “the Cycle,” involving a single family line spanning 150 years, including their transition from Old to New World (Sheaffer, 1968; Weissman, 1957). Long Day’s Journey into Night is not in the Cycle, but it is O’Neill’s own autobiographic family drama. Dedicating the play to his wife, Carlotta, O’Neill wrote, “I mean it as a tribute to your love and tenderness which gave me the faith in love that enabled me to face my dead at last and write this play—write it with deep pity and understanding and forgiveness for all the four haunted Tyrones” (O’Neill, 1956, p. 7). O’Neill acknowledged that writing the play let him work through his conflictual feelings toward his family. Thus, the play illustrates the principles of reparation in a creative act as defined by Chasseguet-Smirgel (1984, p. 405).

“No more excuses!”: Young people, victims and making amends

The title of this paper, borrowed from a government White Paper, is concerned to explore the viability of the proposed stance towards youth crime and disorder exemplified in the UK Crime and Disorder Act 1998. In that legislation, much is made of the notion of ‘making amends’ as a way of informing young people of both the nature and the impact of their offending behaviour, in the hope that this will prevent further re‐offending and repair some of the damage experienced by the victim of crime. This principle of reparation has been available to public discourse on law and order for some time. Much has been made of the practical value of this principle in Australia and New Zealand translated as it has been in that context from Braithwaite's (1989) exposition of reintegrative shaming. In the UK various attempts have been made to introduce similar projects from the Home Office sponsored projects of the mid‐1980s to the much publicised work currently being undertaken in the Thames Valley area. Such international and national ‘successes’ notwithstanding, the question remains as to what might work, how, when, and for whom, in relation to this general principle of making amends. In introducing the importance of the concept of trust, this paper will explore these questions both for the individuals involved in the process of making amends, for the communities in which such projects may be situated, and for the criminal justice process as a whole.