The expectation that those impacted by violations of public international law will receive a remedy has ballooned in recent years. Such expectations have shaped international legal discourse in unexpected ways and generated concrete action. In DRC v. Uganda (2022), the International Court of Justice awarded US$330 million in damages for wartime violations.Footnote 1 International climate change talks are increasingly preoccupied with a controversial fund to address loss and damage.Footnote 2 In 2024, the International Criminal Court (ICC) issued its largest victims reparations order.Footnote 3 These developments are celebrated as examples of realizing an individual’s international legal right to reparation. While an important starting point, this perspective fails to provide a full picture of these novel practices.
This essay shifts attention to how recent developments taken together establish a commonality of reparations practice with wider legal significance. I argue that these contemporary practices represent a distinct sensibility or mindset: not flowing solely from a single right but a characteristic combination of new ideas, forms, and procedures that promote access to justice for large-scale violations of international law—what I term an “emerging law of international compensation.”Footnote 4 Methodologically, this emerging law of compensation resembles global administrative law—which consists of a bundle of common ideas in global governance.Footnote 5 This emerging law similarly reveals a bundle of common attributes evidenced in varied international legal practice and drawn eclectically from international or domestic precedents. Attributes include: (1) direct remedy for mass harms; (2) combining familiar procedural frames; (3) opening new access points; and (4) stretching established legal principles. I reflect on how these attributes appear from the bottom-up in the latest remedial developments—finding commonalities across international criminal and climate change law. As the drive for reparations continues, so too should our appreciation of a related common body of practice as it influences broader international legal obligations.
Direct Remedy for Mass Harms
The first attribute of the emerging law of compensation is the expectation that those affected receive direct remedy for mass harm caused by violations of international law. This practice is apparent in the ICC’s permanent institutional avenue for individual victims to make their reparation claims. Since 2012, the ICC has increased its engagement with reparations and issued increasingly expansive orders.Footnote 6
More innovative is that the range of wrongs to be remedied is not envisioned exclusively in private terms. Instead, wrongs are framed as public international law violations. The wrongs do not have the typical private law meaning of a legal wrong/tort, but neither are they standard violations of international law or “wrongs” solely within the framework of state responsibility. This relatively novel perspective on international legal wrongs encompasses states, the international community, and, when pushed to ground the awarding of remedies for mass harms, addresses their impact directly or indirectly on individuals. These remedies therefore simultaneously serve public and private goals, while creating obligations and entitlements for various actors.
The ICC prosecutes perpetrators for international crimes. It acknowledges through reparations and other victim-centered measures that those crimes not only offend the international community but directly impact private individuals. In its largest order, an award of €750 was granted to each eligible victim.Footnote 7 Though considered symbolic rather than full compensation for harms, this created a tangible and direct link between victims and their remedy for international crimes.
Similar instincts are apparent beyond criminal law. Developments in climate change law also stress direct remedy for mass harms, though at a comparatively nascent stage. Climate change “loss and damage” was championed by small island states threatened with rising sea levels since the 1980s. The issue was nonetheless sidelined as the world’s largest industrial nations feared assuming liability and prioritized mitigation.Footnote 8 The issue has garnered momentum since 2013 with creation of the Warsaw International Mechanism for Loss and Damage.Footnote 9 The Paris Agreement on Climate Change included commitment to “averting, minimizing and addressing loss and damage associated with the adverse effects of climate change.”Footnote 10 This international legal obligation provided the basis for creating a dedicated fund to assist vulnerable countries with loss and damage, though not without controversy in subsequent negotiations.Footnote 11
Given the outcome of recent climate talks, progress is slow and more modest in securing contributions and making the fund operational.Footnote 12 The continued commitment of many states parties to its pursuit and formal launch is nonetheless evidence of growing expectations that concrete support, and effectively direct remedy, is needed for those most affected by global climate harms.
Private wrongs and public international legal obligations become intertwined in unanticipated ways. This evolution not only raises expectations about circumstances warranting a remedy but also alters how such remedies are conceived, debated, justified, and realized in different circumstances. Private individuals bring claims when wronged to secure remedies, including compensation, while these interrelated wrongs receive simultaneous recognition within the broader international public/community. Remedies involving mass harms have their own discourse when developing new processes. With criminal and climate law, that discourse blurs traditional distinctions between private and public justice and interests.
Combining Procedural Frames
When designing and demanding reparations for mass harms, international lawyers also commonly reach for familiar frames of reference from international and domestic law. This can be likened to bricolage—recombining elements from existing law and process to create something entirely novel in responding to mass harms internationally. A similar set of remedial procedures crystallizes different models for use in yet more iterations.
The ICC’s reparations regime was influenced by international experience. The perceived failure of lawyers and policymakers to incorporate victims into prior ad hoc international criminal tribunals provided an impetus.Footnote 13 The design of the regime would also draw on examples of international mass claims processes and administering dedicated claims funds as models in enabling individuals to apply for reparations and establish a unique Trust Fund for Victims.Footnote 14 Domestic law developments were equally reference points for ICC processes including increased recognition of roles for victims in domestic proceedings by allowing victim’s statements in sentencing or victim participation similar to the civil law notion of partie civile.Footnote 15
Unlike the ICC, in climate change the parameters for mass harms processes are still being worked out. Yet those developments also look to international and domestic precedents. Drawing on existing institutional support, the fund will be hosted by the World Bank.Footnote 16 Once operational, those tasked with developing it can build on prior expertise involving compensation funds, including the ICC’s Trust Fund relying on voluntary contributions, and similar national or localized funds for large-scale harms. Recombined models can be adapted in novel ways for climate change.
Apart from the fund, parallel efforts involve turning to pre-existing procedural frames. There is an uptick in international and domestic litigation efforts as complementary methods for securing remedies.Footnote 17 Rather than rely exclusively on a new process, those impacted are resorting to ready-made mechanisms. Advisory opinions have been or are being addressed by three different international courts or tribunals. All offer variations in their approach to legal questions and remedies that may assist in clarifying responses to climate change harms.
Opening New Access Points
With the impulse to provide a remedy comes the creation of concrete opportunities for those impacted to access international remedial processes. Despite pressure from victims and advocates to respond to mass harms, clear procedural avenues to pursue claims are often absent. International legal fora must accordingly adopt a progressive outlook to ensure access.
This instinct to open up improvised access points with new procedures can also have ambiguous implications. Has an international process done enough to facilitate access or has it created an overwhelming task by opening the doors too widely? Will new forms of access for those impacted come at the expense of others? Such questions arise routinely with remedies.
Much criticism of the ICC is directed at limited access. While the goals of the reparations regime are widely applauded as revolutionary, some legal practitioners remain concerned that victims go uncompensated or receive inadequate remedy.Footnote 18 If the ICC prosecutor does not pursue the crime that impacted an individual victim, s/he may not have any access to international reparations, and none may be available domestically. Funds accessible through the ICC are limited and may not provide an appropriate measure of justice.
Reparations orders have attempted to ameliorate these concerns. One compromise was to provide a symbolic amount directly to eligible victims, accompanied by collective reparations to address a range of harms and recommendations to promote local community rehabilitation.Footnote 19 This approach does not eliminate frustration with results. High expectations set by reparations processes confront disappointing delays in receiving tangible remedies for harms of depths and scales that defy satisfactory compensation.Footnote 20
Another contentious issue is how much access should be provided for victims of climate change harms, given difficulties in assessing causation and remedies. Despite formal recognition of loss and damage, a related decision by the Conference of Parties noted that the relevant provision was not a basis for liability or compensation.Footnote 21 This decision reflected concern among states bearing responsibility that compensation could easily become overwhelming—with the most vulnerable states and citizens expecting too much access through the fund. As other Symposium contributions highlighted, legal discourse surrounding climate reparations is often expressly limited to formalistic, technical interpretations that prevent more progressive international legal approaches toward redress.Footnote 22
Divisions become further entrenched among those restricting any broad or potentially burdensome access. Some states are already reticent about the scope of the fund with the United States recently pulling back from its involvement.Footnote 23 With expanded scope comes funder’s remorse that the remedial processes will end up going too far, inevitably generating further expansions of its roles and responsibilities.
Several small island nations, despite the Paris Agreement, sought to retain their rights to compensation for climate impacts.Footnote 24 For those most affected, access to an international fund might be construed too narrowly and limit their opportunities to secure other remedies. Still other states and individuals impacted saw missed opportunities in not having gone far enough and worry that the existence of one unsatisfactory approach will foreclose the future adoption of more suitable alternatives. Victims may still consider themselves excluded from the full range of potential remedies.
There are multiple efforts to open procedural access points outside of international negotiations. The efforts discussed through advisory proceedings might well generate new opportunities for remedies or bolster the case for them subsequently under international law. The International Court of Justice could shed light on the legal basis for reparations in considering the consequences of failing to address climate change’s causes.Footnote 25 Focusing on human rights and highly progressive in its approach to reparations, the Inter-American Court of Human Rights may further develop responses to mass climate harms.Footnote 26 Debates over the scope of access for climate change remedies, coupled with experiments bolstering the case for added procedural access points, reinforces a wider sensibility.
Stretching Established Legal Principles
Expectations of direct remedy, together with the instinct to open new access points can loosen long-held international legal principles. This attribute of the wider sensibility is not explicit or even intended but rather arises by implication. In asking the law to accommodate new interests and goals in facilitating remedies, the meaning of the legal principles themselves begin to change. An international legal principle becomes inextricably linked to various remedial consequences for different global actors.
State responsibility was relevant in this context. ICC reparations were not linked to the actions of one state against another—leading to a decoupling of reparations from state responsibility. The regime used a Trust Fund with voluntary contributions for individual criminal prosecutions.Footnote 27 Though beyond the scope of this essay, the approach to reparations moved beyond strict state responsibility to reflect more disparate understandings of international responsibility among individual perpetrators, victims and the international community.
Facilitating remedies for climate change has equal, if not more, potential to stretch established principles. Reparations for climate change would necessarily give broad scope to responsibility for the wide-ranging effects and numbers harmed.Footnote 28 Many states are careful to avoid a clear association with legal responsibility, resorting to language of support, assistance, and adaptation. Yet, recent initiatives still associate developing climate change obligations with the fund to remedial-like purposes and results, heightening expectations. One proposal is to shift focus away from general responsibility to specific breaches of international climate change obligations or more discrete and palpable climate wrongs linked to a singular incident or course of conduct.Footnote 29
The International Tribunal of the Law of the Sea’s opinion invoked due diligence as a strict standard for addressing climate change effects in international law.Footnote 30 Could due diligence be intermingled with responsibility and in turn reparations in previously unforeseen ways? The concept has the potential to create a threshold that gives rise to remedial obligations and entitlements for those impacted. Old international legal principles are being reoriented to fulfill new roles, a trend that will likely continue for climate change harms.
Conclusion
A growing body of common practice is emerging from ongoing drives for reparations across a range of disparate international legal areas. Developments in international criminal and climate change law look different and are at varying stages of development. What unites them; however, is a similar mindset, or wider legal sensibility. An emerging law of international compensation encompasses common attributes—a commitment to direct remedy for mass harms, a readiness to mix existing procedural tools, an intention to open new access points, and a willingness to stretch established legal principles. These attributes manifest differently from the bottom-up in practice, likely unappreciated by participants themselves.
Recognizing the interrelationship of these seemingly disparate practices as a sensibility helps to think in terms of an emerging law of international compensation—to contribute to its continued development, address the international law debates it generates, and appreciate where and how its attributes will manifest in the future. International lawyers increasingly approach mass harms as they arise with established expectations about appropriate legal responses and strive to imitate novel remedial processes across contexts. While these changes offer new possibilities for redress, they may favor reflexive resort to previous experiments. Such outcomes can generate inappropriate assumptions about the feasibility of remedies, especially when they are not tailored to specific circumstances.
A combination of emerging practices—from criminal law to climate change and beyond—is generating fundamental changes in international law’s approach to access to justice for large-scale violations. Paying more attention to these commonalities in practice, over a single right of reparation, offers new insights into how far international law has come and where it is going.
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