Repairing Harm to Common Interests and Common Spaces: Recent Institutional Developments Across Public International Law

Common spaces and interests are taking central stage in international law. In the context of judicial proceedings concerned with such interests and spaces, reparation raises particularly complex legal issues. For one, the common or shared character of these interests and spaces makes traditional avenues to seek reparation in bilateral disputes inadequate. Similarly, the requirement that only victims harmed by a wrongful conduct be entitled to reparation prompts reflections as to the relevance of the common character of the interest protected for the actual determination of victims. In acknowledging the limited tools available under international law, this paper aims to review some creative institutional solutions at the reparations stage that have recently emerged across various legal regimes. It will consider first the potential role of international organisations as claimants representing the rights and interests of the international community. Secondly, attention will shift to the role of ‘trust funds’ as concrete tools for implementing reparations, focusing on both funds established by treaties offering legal protection for common spaces as well as funds set up in the context of international criminal justice as an additional avenue for guaranteeing redress to victims. Pursuing this aspect further, the paper will focus on the emergence of a human right to reparation and on the advantages of collective solutions, while taking into account concerns relating to the capacity of such solutions to effectively reach victims and to accurately reflect the harm inflicted upon them.