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Research project

Reparations in International Law: A Critical Reflection

Almost a century passed since the much-celebrated judgement in the case concerning the Factory of Chorzów was delivered. This 1928 judgement of the Permanent Court of International Justice affirmed the essential principle of ‘reparation’ in international law, claiming that ‘restitution’ is the preferred form of reparation. However, structural shifts in international law and world politics have led scholars and practitioners to argue that the principles enunciated in the Factory of Chorzów case may no longer adequately serve the current needs of the international community and require recalibration. This research project looks into the scope for a reconceptualisation of the rules related to reparation, and examine what these rules should be.

2023 - 2024
Otto Spijkers

The Factory of Chorzów case dealt with the value of this strategic nitrogen factory in the German province of Upper-Silesia that had been awarded to Poland after the reclassification of parts of Weimar Germany. The judgement held that ‘reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.’ The principle that restitution is the preferred form of reparation, was subsequently asserted by the United Nations’ International Law Commission (ILC) as the basic tenet governing the consequences of internationally wrongful acts in Articles 34-39 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts of 2001.

The precise contours of this normative proposition remain unclear, not least because of the profound structural transformations since the rendering of that judgement. Like all judgements, the Factory of Chorzów case is a child of its time, reflecting the strictly bilateralist nature of the international legal order in the inter-War period and the state-centric character of the international norms at the time. As such, reparation is focused on the loss sustained by the injured state and is intended to reinstate the status quo as it was before without much regard to additional considerations or to the interests of stakeholders other than the states involved.

However, since the Factory of Chorzów case, the world has witnessed remarkable changes with the creation of the United Nations, the prohibition on the use of force, the obligation to settle international disputed peacefully, the development of new rules reflecting broader community interests such as human rights and the environment, and legal constructs such as peremptory norms and obligations towards all. At the same time, states have established new mechanisms to administer reparations beyond the inter-state paradigms, notably in human rights courts, investment arbitral tribunals, the International Criminal Court (ICC), and ad hoc institutions. Reparation has also been recognised as part of a victim’s right to a remedy and enshrined in treaties like the ICC’s Rome Statute. This codification builds upon the practice of many states after World War II, which provided reparations to war victims by establishing public compensation schemes, restitution of property, satisfaction through criminal trials, the erection of monuments, and the creation of national days of remembrance. Across the Americas, a wave of reparations was implemented as part of transitional justice processes in numerous states, including Argentina, Chile and Colombia. The Inter-American Court of Human Rights continues to award tailored and progressive reparations to victims.

In response to all these developments, scholars and practitioners have argued that the principles enunciated in the Factory of Chorzów judgement may no longer adequately serve the needs of the international community and require recalibration to account for the structural shifts in international law and world politics. This raises the question what scope there is for a reconceptualisation of the rules relating to reparation, and what these rules should be? This research project entails an edited volume of the Netherlands Yearbook of International Law, where various critical reflections on the normative evolution of reparations since the Factory of Chorzów case will be published. Contributions will explore the ways in which traditional forms of reparations – restitution, compensation and satisfaction – have been (re)interpreted and applied in fields reflecting broader community values, like human rights, the environment, and criminal justice. New forms of reparations such as rehabilitation and collective reparations will also be looked into. Furthermore, jurisprudence of investment tribunals, and the ways in which reparation has been understood in the framework of bilateral investment treaties and restitution of cultural heritage will also be examined. More recent efforts to repair the historical wrongs of slavery and oppression, in the context of colonial times, and the ways in which the legal principle of reparation has been conceptualized in support of these claims, will also be discussed.

Within the LUC’s global challenge of Peace and Justice, this research project will be edited by Otto Spijkers, Julie Fraser, Emmanuel Giakoumakis and published in Summer 2024 in the Netherlands Yearbook of International Law. For questions about this volume, the editors can be reached at nyil.reparations@gmail.com.

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