Lunch seminar with Luis Viveros
According to article 33 of Draft Articles on State Responsibility (ARSIWA), the obligations set out in Part Two, where the duty to make full reparation (FR) is located, “may be owed to another State, to several States, or to the international community as a whole […] without prejudice to any right […] which may accrue directly to any person or entity other than a State.” In international human rights law (IHRL), where states have conferred rights directly to individuals the question arises whether FR applies also as regards individual-state legal relationships.
Individuals could be subject to lex specialis reparatory standards in their international legal relationships with states (Art. 55 ARSIWA). In other words, the fact that the inter-state legal relationship is characterised by a secondary obligation to make FR does not necessarily require that the individual-state legal relationship is likewise characterised. This has caused a pervasive state of confusion at the functioning regional human rights courts, where there is no consensus regarding the applicable legal standard regarding reparations.
The European Convention of Human Rights’ article 41 speaks of ‘just satisfaction’, while the practice of the European Court of Human Rights emphasises heavily on compensation. Some scholars characterise just satisfaction as lex specialis. This stands in contrast with article 63(1) of the American Convention on Human Rights which speaks ‘just compensation’, a provision that has been construed by the Inter-American Court of Human Rights as being an instantiation of FR while at the same time developing a rich case law on measures of satisfaction.
Meanwhile, the African Court of Human and Peoples’ Rights, in its only decision on reparations to date, cited to articles 31 and 34 ARSIWA when interpreting article 27(1) of the African Charter Protocol, but did so without offering reasons as to the applicability of the Articles, or the rules there codified, in a case decided in the context of an application filed by individuals.
The presentation will identify the main causes at the heart of the uncertainty which today exists on the matter of reparations as including isolationist attitudes on the part of IHRL experts, and an unwarranted focus on the descriptive analysis of regional courts’ practice, and a decontextualized emphasis on the form of reparation favoured by tribunals.
Rather, the presentation argues that asking the right questions, from a public international law perspective, allows for an analysis of regional tribunals’ case law in a manner which explains commonalities and differences in light of conceptual touchstones with a defined scope and content. Such questions include: What is the applicable reparations legal standard in each of the regional human rights treaties? How do these treaty-defined standards relate to the general standard of FR? To what extend do the available forms of reparation, on the treaty and case law levels, affect the content of the secondary obligation to repair? How does a tribunal’s jurisdictional mandate and applicable law approach affect (or contribute to) the fulfilment of the obligation to repair, whatever the content of such obligation may be in a specific treaty framework?
You are welcome to bring your own lunch bag.