5
States should observe when determining the compensation that will repair the
pecuniary damage caused.
19.
The Principles and Guidelines adopted by the General Assembly of the United
Nations in this regard,13 recognize the right of the victims of such violations to “full and
effective reparation […], which include the following forms: restitution, compensation,
rehabilitation, satisfaction and guarantees of non-repetition.”14 When referring in detail
to compensation, article 20 indicates that “[c]ompensation should be provided for any
economically assessable damage, as appropriate and proportional to the gravity of the
violation and the circumstances of each case, resulting from […] violations” and,
among such damage, it specifically includes “[m]aterial damages and loss of potential
earnings, including loss of earning potential” (paragraph (c)). Other instruments of
international human rights law have also incorporated compensation as a form of
reparation.
20.
Meanwhile, under general international law, article 31 of the draft articles on
Responsibility of States for Internationally Wrongful Acts15 establishes the obligation of
responsible States “to make full reparation for the injury caused by the internationally
wrongful act” and indicates that the “injury includes any damage, whether material or
moral, caused by the internationally wrongful act of a State.” Article 34 stipulates the
forms that full reparation for the injury caused by the internationally wrongful act must
take, which include compensation. Article 36 on compensation recognizes that: “[t]he
State responsible for an internationally wrongful act is under an obligation to
compensate for the damage caused thereby, insofar as such damage is not made good
by restitution,” and also details that “[t]he compensation shall cover any financially
assessable damage including loss of profits insofar as it is established.” The
commentaries on several of the articles clarify that the concept of proportionality or
equity plays an important role with regard to the different forms of reparation,
including compensation.16
21.
As can be seen, these instruments of international law set out general
parameters for establishing compensation, but do not elaborate on how to calculate or
determine the amounts for compensation of pecuniary damage. Under the interAmerican system, pursuant to the extensive competence granted to the InterAmerican Court by Article 63(1) of the American Convention17 and based on the
principle that any violation of an international obligation gives rise to the State’s
obligation to repair it, since its first rulings on the matter in 1989, the Court has been
developing standards applicable to the compensation of damage, once it has been
determined that the State is internationally responsible for the human rights violation,
13
“Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law.” Resolution 60/147
adopted by the United Nations General Assembly on 16 December 2005.
14
Article 18.
15
Adopted by the United Nations International Law Commission at its fifty-third session (A/56/10) and
attached by the General Assembly to its Resolution 56/83 of 12 December 2001.
16
Cf. Commentaries on Articles 31, 35 (b), 37(3) and 39; and SHELTON, Dinah, “Righting Wrongs:
Reparations in the Articles on State Responsibility”, The American Journal of International Law, Vol. 96, No. 4, Oct.
2002, p. 851, and SHELTON, Dinah, Remedies in International Human Rights Law, op. cit., p. 94.
17
“When it decides that there has been a violation of a right or freedom protected in this Convention, the
Court shall order that the person injured is guaranteed the enjoyment of his right or freedom that was violated. It
shall also order, if appropriate, that the consequences of the measure or situation that has constituted the violation
of these rights be repaired and the payment of a fair compensation to the injured party.”
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents