Fair compensation : reality or aspiration in international law?

Abstract

Calling for compensation under international law is now ubiquitous in unexpected areas. Comparatively little attention is paid to how compensation is awarded by international tribunals and whether it is done so fairly. Like many international legal remedies, compensation is normally treated as an afterthought or, at best, highly discretionary and case specific. The most common guidance is that there should be “full reparation.” Yet that principle leaves much uncertain. For its part, the International Court of Justice (ICJ) is increasingly engaged in awarding compensation. In February 2022, it awarded a total of $330 million (USD) in damages to the Democratic Republic of Congo (DRC) linked to Uganda’s violations of international law, after the parties were unable to reach a negotiated settlement. While a significant development, critics were quick to question how the ICJ arrived at that amount. Still others raised concerns that large compensation awards, even if warranted for serious violations, can pose an overwhelming burden on a state, potentially outstripping its resources. The current approach to awarding compensation therefore neglects many concerns that have a direct bearing on its perceived fairness. How is compensation assessed? To whom is it owed and under what circumstances? What purpose is it intended to serve? By engaging these questions, the article aspires to an ideal of “fair compensation” – weighing such factors as clarity, consistency and equity in international law. It acknowledges that fair compensation will always be imperfect, depending on certain trade-offs. Whether the result is unfair depends on one’s vantage point – for example, for the state ordered to pay or, conversely, individuals in the recipient state most affected by the legal violations unclear whether the sum paid will ultimately address their needs. Nevertheless, promoting fairness offers tribunals a means of balancing essential goals and interests in decides to award compensation, in what amount, or not at all.