Thesis title: La restituzione come forma di riparazione delle vittime nel diritto internazionale
The thesis examines restitution as a form of reparation in international law. Starting from the positivist origins of the concept, originally conceived to reinstate an injured legal situation and restore the status quo ante, the research aims to demonstrate that this notion can no longer be interpreted in a unitary manner. Today, restitution operates within profoundly heterogeneous normative and institutional contexts, undergoing functional transformations depending on the relevant legal regime, the subjects involved, and the purposes pursued.
Through a dogmatic-reconstructive and comparative approach, the dissertation is structured around four principal areas of inquiry.
The first chapter analyses the regime of responsibility of States and International Organizations. Beginning with the seminal Factory at Chorzów case and proceeding to Article 35 of the International Law Commission’s Draft Articles on State Responsibility (ARSIWA), it highlights the theoretical primacy of restitutio in integrum over compensation. However, a gap between theory and practice already emerges at this stage, particularly evident in investment arbitration, where restitution is systematically marginalized in favour of monetary compensation.
The second chapter transposes the analysis into international human rights law, marking a shift toward a framework in which the obligation of reparation is functionally oriented toward the protection of victims of human rights violations. Regional courts (such as the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court on Human and Peoples’ Rights) and treaty bodies tend to adopt a strictly restorative understanding of restitution, employing it for the return of property, the restoration of personal liberty, or reinstatement in employment. These bodies, however, are constantly confronted with the limit of material impossibility, which is inherently insurmountable in the most serious violations, such as the loss of human life.
The third chapter explores international criminal justice (ad hoc tribunals, “internationalized” tribunals, and the International Criminal Court), where reparation assumes novel and “horizontal” features: the legal relationship is established directly between the individual perpetrator of the crime and the victim. Although Article 75 of the Rome Statute expressly provides for restitution, the “mass” dimension of international crimes and the frequent indigence of convicted persons render this remedy materially complex. This has led the system to favour forms of collective compensation, often mediated through institutional mechanisms such as the Trust Fund for Victims.
The fourth chapter introduces the perspective of combating transnational crimes and recovering confiscated assets (asset recovery), with particular focus on Article 57 of the United Nations Convention against Corruption (UNCAC). In this field, a gradual evolution can be observed from a purely repressive inter-State logic toward a human rights–based approach. The repatriation of illicit proceeds increasingly moves beyond the mere unconditional transfer to the government of origin and, through ad hoc agreements and the adoption of domestic legislation, is transformed into an instrument of distributive justice for the direct benefit of populations harmed by corruption.