It is an honor and a privilege to have been asked to deliver this lecture by Judge Brower.

Violations of international law harm large numbers of individuals—in situations ranging from armed conflicts to environmental disasters. Legal and practical obstacles remain for these individuals in accessing justice under international law.1 There are, however, early signs of change. My paper's contribution to the panel is in identifying a legal sensibility coalescing around new approaches to compensation for mass harms—what I call an emerging law of international compensation (or ELIC). ELIC is a combination of ideas, forms, practices, and procedures that provide previously unavailable opportunities for large numbers of individuals to seek redress at the international level. Looking more closely at various innovative approaches to compensation within a broader push for access to justice internationally, I discuss what is meant by ELIC, its key attributes, and why it matters.

Establishing the circumstances pursuant to which parties to an armed conflict are required to provide reparations or other compensation for harm inflicted in the course of hostilities is an enduring and seemingly intractable challenge in the field of public international law. With the recent full-scale invasion of Ukraine by Russia and the ensuing harm to civilian persons and property being inflicted daily on an almost unimaginable scale as a result of the ongoing fighting, the issue of recompense for damage inflicted in the course of armed conflict has become infused with a renewed sense of urgency. My contribution to the Remedies and Reparations for Individuals Under International Law panel explores the topic that I refer to as “belligerent liability”—that is, reparations or other compensation required to be distributed by states for harm to civilian persons or property caused during armed conflict—from both a conceptual and applied approach.

On February 9, 2022, the International Court of Justice (ICJ) rendered its judgment on the reparations phase of the Armed Activities (DRC v. Uganda) case which related to the Democratic Republic of Congo's (DRC) claims against Uganda arising from the Second Congo War.1 The judgment concluded a case which had all the hallmarks of a landmark: an exceptionally large-scale, protracted, and complex armed conflict, a key actor as the respondent, and virtually unfettered material jurisdiction of the Court. As a reminder, in 1999, the Court was seised with DRC's claims against Uganda arising from the (then ongoing) Second Congo War. Similar claims against Rwanda and Burundi failed before reaching the merits stage. In 2005, the Court rendered its judgment on the merits declaring Uganda responsible for violating the principle of non-use of force and non-intervention by the acts of its own forces and by supporting armed groups in the DRC.2 The Court also found Uganda responsible for breaches of international humanitarian law and international human rights law, and for plundering DRC's natural resources.3 The Court concluded that Uganda had to make reparation to the DRC for the injury caused by its internationally wrongful acts and enjoined the parties to enter into negotiations for that purpose.4 After almost ten years of sporadic and fruitless discussions, in 2015, the DRC brought the case back to the Court for conclusive resolution.

Ladies and gentleman, it is an honor to have the floor at the final session of the annual meeting of the American Society of International law. It is great to see that this year's conference has seen a return of in-person attendance. I really wish I could have been there with you all in person!

Thank you, Catherine, for your kind introduction. And a big thank you also to Mark and Wes for the wonderful collaboration over the last seven years. We will miss you, Mark!

It is my pleasure to be with you on this occasion, if only virtually. This year's annual meeting has as an overall theme: “Personalizing International Law.” For this year's closing plenary, we thought of a truly important topic: “International Law Needs People: Humanitarian Arms Control and the Peace Movement.” Nuclear war, whether big or small, would have disastrous consequences for humankind. Nuclear arms control is crucial—not least in light of the humanitarian consequences. Following the failure of nuclear weapon states to implement Article VI of the Nuclear Non-Proliferation Treaty (NPT), NGOs and governments of non-nuclear weapon states pushed for the Treaty for the Prohibition of Nuclear Weapons (TPNW). Given the role of civil society, of individuals, in this process, and given current circumstances, we want to discuss whether there is both a need and an opportunity to enhance international law and increase lawmaking and implementation by leveraging these actors. We will do so against the background of two distinct developments which I will highlight in opening the panel:

I have thought a lot about the extent to which civil society has underestimated the risk or probability of nuclear war. I do not think that civil society—normal human beings, if you will—has underestimated the threat of nuclear weapons, nuclear war, and the annihilation of life on the planet. Certainly, after the Vietnam period and the nuclear contest disarmament was higher on the agenda. As I contemplate, I always wondered why the anti-Vietnam movement did not solidify into a movement to bring about change consistently. We just see it as a movement to end U.S. participation in the war. This is certainly a noble goal, but it is not moving us toward a different system or view of war.

Questions surrounding the logic of nuclear deterrence (as well as the subtleties of signaling and risks of inadvertent escalation) are very relevant right now. In fact, the current crisis reveals the need to invest (and to keep investing) in knowledge and expertise in this field. Nuclear threats have not been on our mind for a few years but all of a sudden, it is at the forefront again. The nuclear threat is back and we have to work with that. Regarding deterrence, in my personal opinion, NATO and the United States have been quite understanding of what deterrence means. We have been pretty clear in signaling to Russia that we are closely following the steps being taken and that a nuclear war and/or attack would be totally unacceptable. At the same time, we have been reinforcing our defense and our deterrence posture. It is about striking the right balance between words and deeds. The United State has done a good job of not escalating the situation further. For example, they decided to postpone their test of Minuteman III, which was a really smart decision. However, what this crisis has made clear is that deterrence exists not only in relation to having nuclear weapons, but also in relation the credibility of using them—this is a balance that is really important and that has been going well so far. Though, nowadays, it is very difficult to “predict people who are unpredictable” and this is the current challenge we face.

On the Budapest Memorandum on Security Assurances (Budapest Memorandum), we face a game-changing, challenging moment right now with Russia's invasion of Ukraine, which extends beyond the nuclear area. The invasion is, in my view, a challenge to the UN Charter and the entire post-World War system of international law. With respect to the Budapest Memorandum, that is obviously a very topical issue at the moment. I would like to first emphasize the context. The Memorandum was first negotiated in 1994, three years after the dissolution of the Soviet Union, during a period that was not quite as settled as we have now. The Memorandum was part of the context in which Ukraine became a non-nuclear party to the Non-Proliferation Treaty (NPT) and the undertakings there are serious. The undertakings in the Budapest Memorandum are reaffirmations of the still binding commitments to international law under the UN Charter. Therefore, the non-use of force—the prohibition on the threat or use of force against the territorial integrity or independence of Ukraine—is reaffirmed in the Budapest Memorandum, but that is contingent on the UN Charter. The Memorandum consequently remains binding on Russia. Similarly, principles in the Helsinki Final Accords are reaffirmed in the Budapest Memorandum and Russia is violating those, including Ukraine's right to choose its own destiny and choose its own alliances. So, yes, Russia's aggression against Ukraine is a blow against the structure of international security that was created in the wake of the Cold War.

Esmé Shirlow presented the findings of a policy paper developed in collaboration with the International Institute for Sustainable Development (IISD), titled Approaches of International Courts and Tribunals to the Award of Compensation in International Private Property Cases and Implications for the Reform of Investor-State Arbitration. The policy paper follows previous IISD work on compensation in investor-state arbitration, which left open the question of whether approaches to issues of compensation in investor-state arbitration differ from the approaches of other international courts and tribunals (hereinafter, courts), and the extent to which this comparative practice might offer inspiration or ideas for ongoing investor-state dispute settlement reform. The research presented by Dr. Shirlow seeks to answer this question by analyzing how issues of compensation have been analyzed in cases concerning alleged state interferences with private property filed before the Permanent Court of International Justice (PCIJ), International Court of Justice (ICJ), International Tribunal for the Law of the Sea (ITLOS), United Nations Convention of the Law of the Sea Annex VII Tribunals, European Court of Human Rights (ECtHR), African Court on Human and Peoples’ Rights (ACtHPR), and the Inter-American Court of Human Rights (IACtHR).