Arturo J Carrillo

Transnational Mass Claim Processes (TMCPs) in International Law and Practice

This article recognizes a growing overlap in the literature between international mass claims processes (“IMCPS”) and transitional justice claims processes (“TJCPs”), i.e. domestic reparations programs adopted by successor governments in the wake of mass atrocity. This convergence is reflected in a number of recent publications in both fields that promote the comparative analysis of IMCPs and TJCPs, which in turn, leads to the conclusion that the two processes share a number of analogous characteristics. Commentators tend to view these ostensibly shared traits as a natural source of “best practices” or “lessons” transferable between mass claims procedures in the international and domestic settings. Consequently, it is not uncommon in recent publications to find detailed analyses of individual IMCPs placed alongside TJCPs, often without more, implying that experiences should naturally translate from one process to the other. In this article, Professors Jason Palmer and Arturo Carrillo demonstrate how several of the assumptions underlying the increasing comparisons of IMCPs and TJCPs, as presented in the recent literature on mass claims processing and reparations for gross and systematic human rights violations, are flawed. Building on an in-depth study of seminal IMCP and TJCP experiences, Professor Palmer and Professor Carrillo conduct a comprehensive analysis of the two categories to provide answers to key questions in this regard: To what extent are IMCPs and TJCPs truly comparable? Which IMCP principles and precedents are most relevant to domestic reparations programs? Are there principles and precedents from the TJCP context that might nourish ongoing or future IMCP initiatives? And, of course, to what extent are IMCPs and TJCPs different? What is the nature of these differences, and what do they tell us about the underlying compatibility of the experiences and mechanisms contrasted? In answering these questions, the article exposes a number of inherent limitations to the comparison of IMCPs and TJCPs that to date have remained unaddressed. The article demonstrates that a number of basic IMCP characteristics apparently shared with TJCPs provide a dubious foundation for constructive comparison, including that central component of most mass claims processes: compensation. At the same time, the authors delineate more clearly a narrow but promising path of intriguing synergies, labeled “true parallels,” establishing furthermore that such parallels represent avenues for potential cross-fertilization in both directions.