Abraham, Haim;
(2023)
Frameworks for Accountability: How Domestic Tort Law Can Inform the Development of International Law of State Responsibility in Armed Conflicts.
Virginia Journal of International Law
, 64
(In press).
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Abstract
The development of international law of state responsibility in warfare thus far has either implicitly relied on tort law and theory as a means of comprehending elements of liability, or explicitly suggested that reparations in international law could follow domestic tort law in form and substance. In this Article, I argue that both approaches raise concerns about coherence and clarity and suggest that a Contextual Reliance Approach is required. Accordingly, the principles and concepts underlying domestic tort law can be adapted and applied to international law of state responsibility, but the unique features of warfare must be accounted for. In doing so, the Contextual Reliance Approach crystalizes the boundaries and unique functions of tort law and international law of state responsibility. By deploying the Contextual Reliance Approach, I clarify four main contested doctrinal and theoretical issues in the field of international law of state responsibility during warfare. First, the right to reparations under international law should only be extended to states. Second, duty to make reparations should only arise when a loss is inflicted by infringing the law of war. Third, fully correcting wrongs requires distinguishing between just and unjust wars, imposing compensatory damages for the former but allowing additional aggravated damages for the latter, while maintaining a prohibition on punitive damages. Fourth, global damages can be awarded, but only for losses that cannot be quantified based on market value.
| Type: | Article |
|---|---|
| Title: | Frameworks for Accountability: How Domestic Tort Law Can Inform the Development of International Law of State Responsibility in Armed Conflicts |
| Open access status: | An open access version is available from UCL Discovery |
| Publisher version: | https://www.vjil.org/frameworks-for-accountability... |
| Language: | English |
| Additional information: | This version is the version of record. For information on re-use, please refer to the publisher’s terms and conditions. |
| Keywords: | Warfare, International Law of State Responsibility, Tort Law, Tort Theory, Reparations, Compensation |
| UCL classification: | UCL UCL > Provost and Vice Provost Offices > UCL SLASH UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws |
| URI: | https://discovery.ucl.ac.uk/id/eprint/10183188 |
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