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Universality and Cosmopolitanism: Some Insights from the World of Moral Damage

Merryl Lawry-White

Keywords: State responsibility; reparation; international criminal law; international human rights law; international investment law; moral damage

This article examines the invocation and application of universal principles regarding reparation for moral damage across three different ‘sub-systems’ of international law: international human rights law, international criminal law and international investment law. The extensive invocation of certain principles drawn from a state-to-state context, including in scenarios implicating non-state actors, suggests a degree of universality.

Yet, this conclusion is challenged by the variety of approaches taken by bodies constituted under and applying different international law specialisms. The context and mandate of the body in question, as well as the exigencies of particular situations, affect the extent to which universal principles are followed in practice. The considerations underlying the form and standard of reparation, and the ultimate outcome, for example, serve to demonstrate some of the tensions between universality and cosmopolitanism.

There is a growing focus on reparation as a modality and mechanism of justice. The effectiveness of reparation in this role is tied to the extent to which it responds to claimants/petitioners/victims' needs. While universality may play a role in inter alia promoting certainty and conserving resources across a varied international law landscape, a strict approach may undermine the responsiveness of reparation as a measure of justice in different sub-systems and thus of the value of a more cosmopolitan world that opens up avenues for redress for a variety of identities.

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