Reparations, International Law, and Global Justice: A New Frontier

Source: (2006) In Pablo De Greiff, ed., The Handbook of Reparations. Oxford, New York, USA: Oxford University Press. Pp. 478-503.

“This chapter assesses recent trends in international law regarding the availability and character of reparations. Presently, reparations issues have arisen particularly in domestic societies searching for transitional justice in the aftermath of authoritarian rule. These issues are shaped by national legal systems, but are also influenced by international practice. In these transitional settings, the search for justice is affected by political preoccupations, such as the persistent influence of displaced prior authoritarian leadership, as well as by real and alleged limitations on the financial capabilities of transitional states. No general approach can address the interplay between national and international law at this stage. Reliance must be placed on a case-by-case approach, considering matters of context, such as the degree of suffering and disability inflicted on particular categories of claimants, the balance of claims versus the State’s demands for resources to fund sustainable and equitable development; remoteness in time bears on the credibility of the claimants as present victims tend to be given priority over victims in the distant past when assessing relative merits; scale and selectivity suggests that if the total of claims overwhelms the administrative capacity of the State, there will be a tendency to substitute apology and symbolic gestures for material ones and award reparations on the basis of individual need associated with the prior deprivation. International law informs background moral and political thinking about reparations, but practical considerations of capability and prudence are decisive in most instances, making the influence of international law indirect, and sometimes marginal.” (excerpt)