Towards a New Standard for Assessing Compensation in Cases of Collective Human Rights Violations
成果类型：
Article
署名作者：
Krawiecki, Stanisaw
署名单位：
University of London; University College London
刊物名称：
HARVARD INTERNATIONAL LAW JOURNAL
ISSN/ISSBN：
0017-8063
发表日期：
2022
关键词：
摘要：
International human rights law and international courts have finally begun to recognize a new type of victim: local and indigenous communities. In key decisions over the past two decades, the Inter-American Court of Human Rights recognized the violations of indigenous communities' rights by national governments. At the same time, less attention has been paid to the nature of damages available for these violations. This Note highlights the underdevelopment of damages jurisprudence in the Inter-American Court of Human Rights, which has mostly relied on non-pecuniary damages to compensate collective victims. It argues that the Court's approach fails to recognize the evidentiary challenges faced by collective victims, who often cannot prove the harm they suffered due to their traditional way of living or the destruction of evidence caused by the violation itself. At the same time, the approach also fails to utilize the power of equity to compensate for clearly monetary harms, especially when a lack of quantitative proof is inevitable. This Note critiques the use of the non-pecuniary approach in the context of group victims and argues (1) that violators, not victims, should assume the risks associated with the uncertain value of harms; and (2) that non-pecuniary compensation is a misguided approach because it implies that harms suffered by group victims are non-monetary in nature. Drawing on the jurisprudence of other international tribunals, this Note shows that group cases are amenable to the use of equity in calculating monetary damages based on approaches to both collective and complex individual cases. This Note concludes by suggesting that monetary damages should be approximated, perhaps with the help of experts, in human rights cases when the only barrier to proof is the lack of a concrete value for a given harm.