Compensation in a Changing International Legal Order

As is well known, there remain legal and practical obstacles to access to justice for individuals in international law. In the case of mass harms, however, this dissertation demonstrates a new legal sensibility that amounts to an emerging law of international compensation (ELIC), where legal sensibility refers to a characteristic combination of ideas, forms, practices and procedures. ELIC combines an expectation that individuals should have a direct remedy for mass harm caused by a violation of international law, innovation using a mix of familiar procedural frames, the opening of new access points, and a willingness to stretch established international legal principles. Armed conflicts, investment disputes and environmental disasters are just a few of the horrendous scenarios in which violations of international law harm large numbers of individuals. ELIC thus provides extraordinary opportunities for redress at the international level.Existing mass compensation research tends to identify the heyday of international claims as prior to World War II, to explore post-war compensation mechanisms as legally unrelated to one another and to concentrate on the procedural technicalities of each scheme. In contrast, the notion of a common legal sensibility unites diverse international legal contexts. At the same time, as with the idea of Global Administrative Law, which ELIC resembles methodologically, it is predictive rather than formally binding as a substantive right or principle of access to justice would be, and, relatedly, comprehends a broader and more normatively ambiguous range of developments. The dissertation derives ELIC bottom-up from three international law case studies ranging widely from humanitarian to criminal to investment law. It does so by applying to each case a set of analytical and critical questions developed from the history it offers of claims in international law and corresponding history of domestic collective litigation. In keeping with its overall approach, the dissertation offers a more contextual history of international claims than is usually found and identifies four successive compensation models: a collateral private claims model, arbitration- diplomatic model, reparations model and institutional-transitional model. Its history of domestic collective litigation is similarly contextual and includes alternatives to US-style class actions in other legal systems.

Department dc:contributor.department

Law

Year dc:date.issued

2021

Author dc:creator

• Barnes, Ashley Jennifer

Advisor dc:contributor.advisor

• Knop, Karen C

• access to justice
• compensation
• human rights

Handle dc:identifier.uri

http://hdl.handle.net/1807/130827

OAI identifier oai:identifier

oai:utoronto.scholaris.ca:1807/130827