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Moral Damages – The Transformation of Private Law Analogies in Public International Law

About the Project:

Formerly, public international law was correctly characterized as ‘private law "writ large"’ (Holland, Studies in International Law (1898) 152.). As only States acted within its realm as equals, it was sound to construe it as a private law-like regime and it was equally convincing to apply rules stemming from a private law background.  

Nowadays, it is more accurate to distinguish areas of public international law that resemble administrative law, criminal law, and private law. Against this backdrop, the project takes a closer look at private law transplants, that is, rules which were transposed to international law but originate from municipal private law. In a nutshell, it investigates whether these transplants have transformed in international law when exposed to situation resembling public law. To this end, the project focuses on moral damages, that is the remedy granted for immaterial harm.

The concept of moral damages forms part of the corpus iuris of public international law ever since the decision of the German-U.S. Mixed Claims Commission on the Lusitania incident in 1923. Importantly, the Umpire explained his acceptance of moral damages with an explicit reference to French private law. While individual harm and suffering was the object of this decision, it was still a State, here the U.S., which brought the claim. This was due to the fact that, traditionally, only a State could bringt claims for its citizens’ moral harm against another State. Procedurally, this is accomplished by the doctrine of diplomatic protection. However, this inevitably meant that the citizens’ claims became inter-State claims. Accordingly, the issue is subject to the traditional private-law-paradigm of public international law.

However, under certain human rights law treaty regimes and international investment law, it is no longer a State which brings claims on behalf of its citizens, but the individual him- or herself. Thus, also the question of moral damages arises and, differently from the inter-State plane, these sub-fields of public international law developed different approaches to moral damages. Most importantly, arbitral tribunals under bilateral investment treaties started to require “exceptional circumstances” in order to recognize a claim for moral damages.

The project seeks to trace these different approaches to moral damages and compare them to general (inter-State) international law. As already sketched, the differences between general international law and (certain of) its sub-fields are quite remarkable. In light of this, the project investigates whether these differences relate to the different circumstances in which they apply and, ultimately, whether the differences can be read as a shift towards public law.

PhD candidate