VOLUME
2:2
December 2015
326-559
  • From Private-law Roots to International
    Norm: An Investigation Into Moral
    Damage and Pecuniary Reparations in
    Transnational and International Law

    Christa Rautenbach
Abstract

Recourse to pecuniary awards as a remedy for moral damage (also called non-pecuniary damage) has become an international norm
in modern times. The impetus or inspiration for this development at the top came from below, that is it came from the private law traditions of civil law and common law, though of course it may be debated as to which tradition was the decisive infl uence. What seems important is that the notions which emerged at the transnational and international levels have surpassed the products of those traditions. The assimilated ideas received and redeveloped at the supranational level have, in turn, passed back down to national
courts and national laws. This has an impact in both common law and civil law. There has been a constant circulation and rotation of ideas passing back and forth through various conduits which link the vertical levels. By investigating the evolution and growth of the concept of moral damage and the generalised remedy to compensate it, this article will attempt to throw light upon the process by
which ideas derived from private law spread, evolve and re-emerge as norms of international law.

Keywords
moral damage; non-pecuniary loss; human rights; pecuniary awards; European Convention on Human Rights

Click here to read extracts of the article
Introduction

Recourse to pecuniary awards as a remedy for moral damage (also called nonpecuniary damage) has become an international norm in modern times. Under principles of public international law the violation of an international law obligation or the breach of any engagement gives rise to an obligation to make full reparation. Full reparation means that all damage, moral and material, must be included within the assessment. 1
The essential principle is that reparation must, as far as possible, “wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed”. 2 In pursuing the goal of full reparation, international tribunals such as the European Court of Human Rights, the European Court of Justice, the Inter-American Court of Human Rights,the International Criminal Court make frequent use of a pecuniary award (possibly in tandem with other measures but sometimes by pecuniary means alone) to help reverse the consequences of an illegal act.
The impetus or inspiration for this development at the top came from below,that is it stemmed from the private law traditions of civil law and common law,though of course it may be debated as to which tradition was the decisive infl uence.What seems important is that the notions which emerged at the transnational and international levels have surpassed the products of those traditions. The assimilated ideas received and redeveloped at the supranational level have, in turn, passed back down to national courts and national laws. This has an impact in both common law and civil law. There has been a constant circulation and rotation of ideas passing back and forth through various conduits which link the vertical levels. 3 By investigating the evolution and growth of the concept of moral damage and the generalised remedy to compensate it, this article will attempt to throw light upon the process by which ideas derived from private law spread, evolve and re-emerge as norms of international law.