More Comments on Fault and No-Unjust-Benefit

Let me close this section with three final remarks on the fault- and no-unjust-benefit principles for the allocation of reparative duties. First, the principles differ in their specific implications. In particular, merely receiving unjust benefits is not as bad as being causally responsible for the rights violations or rights infringements from which those benefits accrue. Accordingly, the reparative duties which the no-unjust-benefit principle imposes should be less onerous than the reparative duties imposed by the fault principle—at least other things roughly equal, as someone who is only minimally causally responsible for a rights violation is under lesser reparative duties than someone who derives sizeable benefit from it.[1]

Second, both principles apply to wrongdoers and victims, irrespective of nationality or, more widely, membership in state or non-state organizations.

Third, both principles justify the imposition of reparative duties on individuals whose wartime state was dissolved as a result of the war. To give a well-known example, the 1919 Treaties of St. Germain and Trianon imposed reparative obligations on the republics of Austria and Hungary, even though those two republics were created in 1919 following the fall and dissolution of the Austro-Hungarian Empire. Changes in statehood pose significant problems for public international lawyers, precisely because the law confers personhood on states. At the bar of cosmopolitan justice, however, states’ rights and duties are the rights and duties of their individual members. They endure even when the state does not. Whatever one thinks of the substance of the reparative obligations imposed on citizens of Austrian and Hungary by those treaties, one cannot reject them on the grounds that the belligerent imperial state was no longer in existence.

  • [1] See Butt, Rectifying International Injustice, 117—30. See also Pasternak, ‘Voluntary Benefits fromWrongdoing’.
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