CYIL vol. 13 (2022)

ALLA TYMOFEYEVA

CYIL 13 ȍ2022Ȏ

Introductory remarks on reparation v. just satisfaction The main rules on reparations in public international law were introduced by the United Nations International Law Commission (ILC) in the Articles on Responsibility of States for Internationally Wrongful Acts of 2001 (ARSIWA) 1 and the Draft Articles on the Responsibility of International Organizations (DARIO). 2 Analysis of these two documents demonstrates that a reparation for an injury caused by an internationally wrongful act shall take the form of restitution, compensation, and satisfaction. The 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 (Basic Principles and Guidelines) 3 in its para. 18 specify that full and effective reparation consists of the following forms: 1) restitution, 2) compensation, 3) rehabilitation, 4) satisfaction, and 5) guarantees of non-repetition. When dealing with reparations to the victims of human rights violations under the European Convention of Human Rights (ECHR), the term ‘ just satisfaction’ is applied. It can be found in its Article 41 of the ECHR, which sounds as follows: Article 41 – Just satisfaction If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. 4 The term ‘just satisfaction’ may be seen as a homonym of the satisfaction under ARSIWA. It has (at least partially) the same spelling but the different meaning. Comparative research allows us to conclude this notion is not limited to only this form of reparation (the satisfaction) but contains in itself all the components of ‘reparation’ . Octavian Ichim, the author of the monograph on just satisfaction under the ECHR notes: ‘The notion of “just satisfaction” found in the European Convention is relatively original.’ 5 He adds that it is not absolutely synonymous to the term ‘reparations’ under ARSIWA, as the UN documents require full reparation of victims, when the ECHR system affords only ‘just’ reparation. 6 For the purposes of this research, however, we will consider the term ‘just satisfaction’ to be comparable to the notion ‘reparation’. The fact that the notion ‘just satisfaction’ combines in itself restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition can be confirmed by the judgments 1 Draft Articles on Responsibility of States for Internationally Wrongful Acts. Yearbook of the International Law Commission , 2001, vol. II, Part Two, as corrected. 2 Draft articles on the responsibility of international organizations . Yearbook of the International Law Commission , 2011, vol. II, Part Two. 3 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 of the General Assembly of the United Nations No. 60/147 of 16 December 2005. 4 Article 41 of the ECHR. 5 ICHIM, O. Just Satisfaction under the European Convention on Human Rights. Cambridge: Cambridge University Press, 2014, p. 18. 6 Ibid., p. 19 and 24.

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