{"id":30325,"date":"2026-11-12T08:00:37","date_gmt":"2026-11-12T07:00:37","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=30325"},"modified":"2026-11-11T23:40:18","modified_gmt":"2026-11-11T22:40:18","slug":"a-twisted-microcosm-imbued-with-secrets","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/a-twisted-microcosm-imbued-with-secrets\/","title":{"rendered":"A (Twisted) Microcosm Imbued with Secrets?"},"content":{"rendered":"

Jean d\u2019Aspremont\u2019s recent mind-expanding\u00a0book<\/u><\/a>\u00a0\u2018The Epistemology of the Secret: International Law as Revelation<\/em>\u2019\u00a0argues that international law, like any serious epistemological project, proceeds on the assumption that the world is a continuous stream of hidden knowledge which the discipline is duty-bound to reveal \u2013 except that, in the very act of revealing, international law also creates<\/em> the hidden knowledge it purports merely to uncover, unveiling some truths while suppressing others.\u00a0International legal texts, on this account, are not neutral repositories awaiting discovery: the act of \u2018revelation\u2019 is itself an act of \u2018ordering\u2019\u00a0\u2013 of determining what can be said, thought, perceived and actioned through the discipline.<\/p>\n

In state responsibility,\u00a0the role of causation\u00a0in determining\u00a0the availability, form and extent of reparations\u00a0for wrongful conduct is a strikingly apt illustration of this dynamic. The Articles on State Responsibility for Internationally Wrongful Acts<\/u><\/a> (ARSIWA) present causation as though it were simply there<\/em>, waiting to be applied \u2013 a settled criterion, cursorily stated in Arts. 31, 34 and 36 ARSIWA, that adjudicators need only \u2018reveal\u2019 in each case. Yet, as this blog post will show, the practice of international courts and tribunals suggests the opposite: in choosing between multiple tests of \u2018but for\u2019, \u2018directness\u2019, \u2018proximity\u2019 or \u2018foreseeability\u2019, international judicial bodies are not excavating a pre-existing legal fact so much as constructing<\/em>\u00a0\u2013 case by case, and often without acknowledging that they are doing so \u2013 the very causal reality they claim only to identify<\/em>. The kaleidoscope image in the\u00a0post\u2019s title seeks to stress precisely that: not only does the picture shift depending on which international\u00a0judicial body one asks, but each forum\u2019s\u00a0\u2018revelation\u2019 of the applicable causal standard is itself a creative act, quietly foreclosing other ways the causal link could have been drawn in the given context.<\/p>\n

Applicability of ARSIWA<\/strong> \u2013 and its Reparation <\/strong>Rules <\/strong>\u2013 t<\/strong>o <\/strong>H<\/strong>uma<\/strong>n R<\/strong>ight<\/strong>s<\/strong>\u00a0<\/strong>Violations<\/strong><\/p>\n

As well known,\u00a0state responsibility extends to human rights violations. Although ARSIWA is formally \u2018without prejudice to any right\u2019 arising from the breach of obligations owed to individuals under international law (Art. 33(2)), international judicial practice strongly suggests that the obligation to make reparation \u2013\u00a0i.e. restitution, compensation and satisfaction (Arts. 34-37 ARSIWA)\u00a0\u2013 governs human rights violations too, by force of the customary rule of full reparation. That premise traces back to the P<\/u>CIJ<\/u><\/a>\u2019s iconic pronouncement in Factory at Chorz\u00f3w<\/em><\/u><\/a>, which was later codified in Art. 31 ARSIWA, and also\u00a0confirmed by the ICJ\u00a0as applying equally<\/u><\/a>\u00a0to injuries suffered by individuals.<\/p>\n

When international courts and tribunals decide on reparations\u00a0as a consequence of\u00a0state responsibility, no reparation can be awarded without causation, i.e. without a link between the wrongful conduct and the injury occurred (Lanovo<\/u>y<\/u>, p.\u00a02). Art. 31(1) ARSIWA is explicit: full reparation is due \u2018for the injury caused\u00a0<\/em>by the internationally wrongful act\u2019 \u2013 and the same causal language recurs in Arts. 34 and 36(1) ARSIWA. Causation between the breach of law and the harm (here: a human rights violation)\u00a0is therefore the hinge on which the availability, form and extent of reparation turn. Causation\u2019s\u00a0function is, thus, protective. It wards off speculative\u00a0claims from injured parties, while barring punitive damages against the wrongdoing State, a form of relief that remains impermissible in light of the practice of international (quasi) judicial bodies.<\/p>\n

Unlawful <\/strong>Expulsion of <\/strong>Non-Nationals<\/strong>: <\/strong>A Valuable Setting for Testing Causatio<\/strong>n<\/strong> in R<\/strong>eparation<\/strong><\/p>\n

To examine how this causal inquiry\u00a0actually operates in the context of reparation, this post uses a high-stakes subject-matter as a microcosm: the unlawful expulsion of non-nationals. Expulsion affects\u00a0millions of people<\/u><\/a> every year, and a wrongful expulsion can trigger drastic, sometimes irreversible, consequences for an individual\u2019s life and family. Such a measure is squarely an internationally wrongful act within the meaning of Art. 2 ARSIWA, and it happens to be one of the most heavily litigated corners of international human rights law \u2013\u00a0having generated a dense, albeit scattered, body of case law from multiple\u00a0universal\u00a0and regional (quasi-)judicial bodies. Given the laconic nature of ARSIWA and its Commentaries<\/u><\/a> on causation, this jurisprudence \u2013 as \u2018subsidiary means for the determination of rules of [international] law\u2019 under Art. 38(1)(d) of the ICJ Statute<\/u><\/a>\u00a0\u2013\u00a0constitutes a rich and helpful pool of legal arguments on the subject, and, on d\u2019Aspremont\u2019s reading, a valuable setting for observing the discipline\u2019s revelatory posture at work.<\/p>\n

Before causation in the specific reparation context can even be considered, wrongfulness must be established. Expulsion of a non-national typically becomes unlawful under international law in one of three ways: 1) it breaches a substantive human right, e.g. the prohibition of refoulement<\/em> or collective expulsion, or the right to family life; 2) it fails to respect procedural safeguards, such as those in Art. 13 ICCPR<\/u><\/a> or Art. 1 of Protocol No<\/u>\u00a0<\/u>7 to the ECHR<\/u><\/a>; or 3) when it is enforced unlawfully \u2013 through excessive force, means of restraint, or otherwise abusive physical conduct during removal (for more, see Moln\u00e1<\/u>r<\/u><\/a>).<\/p>\n

Where any of these occurs, the coercive act of the host State\u2019s immigration authorities not only triggers state responsibility but also activates the full panoply of reparation under ARSIWA and beyond. The ILC\u2019s 2014 Draft Articles on the Expulsion of Aliens<\/u><\/a> confirm that. Seen through a purely human\u00a0rights lens, the UN Human Rights Committee\u2019s General Comment No 31 (2004)<\/u><\/a> states that\u00a0reparation for ICCPR violations \u2018can involve restitution, rehabilitation and measures of satisfaction\u2019 as appropriate, while the 2005 UN<\/u>GA<\/u> Basic Principles and Guidelines on the Right to a Remedy and Reparation<\/u><\/a> add rehabilitation and guarantees of non-repetition to the classic ARSIWA triad. That reparation\u00a0is applicable in expulsion\u00a0cases is clear. The practical difficulty lies elsewhere: in figuring out which\u00a0injuries are close enough to the wrongful acts to actually be repaired.<\/p>\n

The <\/strong>E<\/strong>lusive <\/strong>C<\/strong>oncept of <\/strong>\u2018I<\/strong>njury<\/strong>\u2019<\/strong>\u00a0<\/strong>\u2013<\/strong> and its <\/strong>C<\/strong>ausal <\/strong>T<\/strong>ether<\/strong><\/p>\n

Art. 32 ARSIWA defines \u2018injury\u2019 expansively, as encompassing \u2018any damage, whether material or moral\u2019, caused by the wrongful conduct. In the wrongful expulsion cases, injury can flow either from the unlawful expulsion order itself, or from the substandard manner in which removal was carried out \u2013 and it can ripple outward into secondary harms: loss of employment, disrupted schooling for children, family separation, psychological trauma, etc.<\/p>\n

But only injury that is caused by, and ascribable to, the wrongful act qualifies for reparation. Not every consequence flowing from it does (ARSIWA,<\/u> Commentary to Art<\/u>. <\/u>31<\/u><\/a>, para 9). As international law draws a line between injury resulting from the breach and injury merely following it in time, the question\u00a0is: what test\u00a0to employ to draw\u00a0that line?<\/p>\n

The Plurality of Causation Tests: <\/strong>A <\/strong>K<\/strong>aleidoscope, <\/strong>N<\/strong>ot<\/strong> a <\/strong>S<\/strong>ingle <\/strong>L<\/strong>ens <\/strong><\/p>\n

Remarkably, causation \u2013 so central to the entire reparations edifice \u2013 remains comparatively under-theorised. And international judicial practice offers no single formula either. The common starting point is the \u2018but for\u2019 (conditio<\/em> sine qua non<\/em>) test: a factual\u00a0causation mechanism asking whether the injury would have occurred absent the wrongful act. If it had happened regardless, no reparation is due. Yet, the \u2018but for\u2019 test, standing alone, is not sufficient in itself\u00a0\u2013\u00a0it does not\u00a0filter out injuries that are technically consequential but legally too remote.<\/p>\n

To do that filtering, international adjudicators reach for supplementary tests: \u2018directness\u2019, \u2018unbroken causal link\u2019, \u2018proximity\u2019 and \u2018foreseeability\u2019. These borrow from the old Roman-law maxim injure causa <\/em>proxima<\/em>, non remota, <\/em>inspicitur<\/em>. Still, in judicial practice, almost every move is allowed on the dancefloor of causal inquiry, given that \u2018[n]o specific test of causation is prescribed by international law\u2019 (Guiding Principles on Shared Responsibility in International Law<\/u><\/a>).\u00a0Not only do the plethora of these tests in judicial pronouncements explain the situation that \u2018causation\u2019 and \u2018remoteness\u2019 resist generalisation (Wittic<\/u>h<\/u><\/a>, para 17), but some substantive regimes even prescribe their own bespoke causation standards (see e.g.\u00a0UN Security Council Resolution 687 (1991)<\/u><\/a> on Gulf War reparations).<\/p>\n

ARSIWA and its Commentaries treat the topic cursorily:\u00a0symptomatic is the minimalistic wording in Arts. 31, 34 and 36, without elaboration. One explanation\u00a0is that causation standards are inherently context-dependent and resist a one-size-fits-all formula\u00a0(Wittic<\/u>h<\/u><\/a>, para 17). But other scholars (e.g. Shelt<\/u>on<\/u><\/a>, 846; Crawfor<\/u>d<\/u><\/a>, 492; and Lanovo<\/u>y<\/u><\/a>, 38) caution that this deceptively simple language masks a series of complex legal issues stemming from causation.\u00a0Even the ILC itself essentially raised its hands and concluded in the Commentary to Art. 31 that\u00a0the precise standard of causation must be determined on a case-by-case basis, in light of the relevant primary obligations (substantive rules).<\/p>\n

Mapping <\/strong>International Judicial Practice<\/strong>: <\/strong>A<\/strong>\u00a0<\/strong>F<\/strong>ertile but <\/strong>F<\/strong>ragmented <\/strong>F<\/strong>ield<\/strong><\/p>\n

Given the ILC\u2019s own indetermined position and the increasing caseload on expulsion-related matters before regional\u00a0human rights courts\u00a0(and also beyond), this jurisprudence offers a fertile ground to understand better how causal inquiry works in reparation cases. The following draws on rulings from judicial bodies as varied as the ICJ (most notably Diallo<\/em><\/u><\/a>), the ECtHR<\/u><\/a>, the IACtHR<\/u><\/a>, the A<\/u>f<\/u>CtHPR<\/u><\/a>, the Iran\u2013US Claims Tribunal<\/u><\/a>, the Eritrea\u2013Ethiopia Claims Commission<\/u><\/a>, and the UN Compensation Commission<\/u><\/a>. Most recently, the CJEU<\/u><\/a>\u00a0has entered the fray with the Grand Chamber ruling in\u00a0WS and Others v Frontex<\/em><\/u><\/a>, offering fresh\u00a0insights into how a supranational court approaches causation in expulsion-related cases (albeit with respect to the human rights responsibility of an organ of a (supranational) international\u00a0organization, Frontex).<\/p>\n

One important caveat: expulsion-related reparation claims pursued through diplomatic protection and inter-state mechanisms exhibit different procedural features and evidentiary requirements than those brought by individual petitions before regional human rights courts. Even so, the causation methodologies developed by the latter exercise a gravitational pull\u00a0on other adjudicators, at least to some degree \u2013 making cross-fertilisation, however imperfect, a real phenomenon.<\/p>\n

Discernible <\/strong>T<\/strong>rends and <\/strong>Blurred Lines<\/strong><\/p>\n

Surveying this scattered international jurisprudence reveals several distinct \u2013 and not entirely reconcilable \u2013 tendencies.<\/p>\n

A recurrent\u00a0feature is applying the \u2018directness\u2019 or \u2018proximity\u2019 standards in expulsion cases. The ICJ requires\u00a0a \u2018sufficiently direct and certain causal nexus\u2019 (Diallo<\/em><\/u><\/a>, para 14), whereas the ECtHR tends to apply a \u2018proximity\u2019 standard, setting a comparatively high threshold for awarding pecuniary damages for both material and non-material harm in expulsion cases (Puszta<\/u>i<\/u><\/a>,\u00a0148-152). At the same time, the African Court requires directness in relation to loss of income but accepts an indirect connection as sufficient for moral prejudice (Anudo<\/em><\/u>).<\/p>\n

The IACtHR, by contrast, adopts a markedly more lenient approach, often simply asserting that a causal link exists without ever articulating the standard it is applying \u2013 a methodological opacity that makes its jurisprudence hard to systematise or predict\u00a0(Puszta<\/u>i<\/u><\/a>,\u00a0123, 152).<\/p>\n

Unlike regional human rights courts,\u00a0the Iran\u2013US Claims Tribunal has historically shown less appetite for a relaxed \u2018but for\u2019 test, adhering instead to a stricter approach to the causal chain. On multiple causation more specifically, the Tribunal has rejected \u2018parallel causation\u2019 arguments. In the Yeager<\/em><\/u><\/a>\u00a0<\/em>and\u00a0<\/em>Leach<\/em><\/u><\/a>\u00a0cases, the Tribunal denied compensation for lost income on the ground that the claimants\u2019 employment would have been terminated by their employer regardless of the expulsion, severing the causal chain the claimants sought to establish.<\/p>\n

The CJEU, interestingly, appears to be context-specifically <\/u>relaxing<\/u><\/a>\u00a0the causation test\u00a0for\u00a0the EU\u2019s non-<\/u>contractual<\/u> liability<\/u><\/a>\u00a0\u2013 which is \u2018directness\u2019 by default (Katson<\/u>i<\/u><\/a>) \u2013 in those expulsion cases where\u00a0vulnerable asylum seekers\u00a0are involved and under specific\u00a0circumstances, particularly in scenarios of overdetermined refoulement<\/em>, such as in WS and Others<\/em><\/u><\/a>\u00a0(paras 154-161).\u00a0It should be added that what was at stake here was not the responsibility of a State, but that of an international organization, namely the EU.<\/p>\n

A further recurring pattern is that international judicial bodies, the ICJ included, frequently dispose of causation questions simply by finding that the expelled individual failed to\u00a0prove causation, without ever clarifying what standard was applied or how it was applied to the facts. The ICJ\u2019s insistence on the\u00a0\u2018directness\u2019 test across very different areas of law stands in stark contrast with the ILC\u2019s own (and several scholars\u2019) preferred view that causation standards would be highly dependent on the primary rules\u00a0breached and the type of injury suffered, rather than being imported wholesale from one area of law into another.<\/p>\n

Also, a\u00a0strict directness standard, applied indiscriminately, risks undercutting both the restorative function of state responsibility (by denying reparation for genuinely connected harms) and its deterrent function\u00a0\u2013 without making it punitive \u2013\u00a0by reducing the practical cost\u00a0of States\u2019 engagement in unlawful expulsion practices. The ECtHR\u2019s demanding proximity threshold is an illustrative example: such a standard may sit uneasily with the normative function of reparation \u2018to wipe out all the consequences\u2019, as far as possible,\u00a0of the wrongful act (PCIJ, Factory at Chorz\u00f3w<\/em><\/u><\/a>,\u00a047; ICJ, Diallo<\/em><\/u><\/a>, para 24).<\/p>\n

The <\/strong>C<\/strong>onundrum and a <\/strong>Pr<\/strong>oposed <\/strong>W<\/strong>ay <\/strong>T<\/strong>hrough <\/strong>I<\/strong>t<\/strong><\/p>\n

All this, however, reveals a deeper structural difficulty. Set the causation bar too high<\/em> (directness, strict proximity), and responsibility is unlikely\u00a0to result in full reparation \u2013 the wrongfully expelled individual is left under-compensated. Set the bar too low<\/em> (as arguably the IACtHR\u2019s practice risks doing), and reparation drifts toward something functionally indistinguishable from punitive<\/em> damages \u2013 a result international law expressly disavows (see similarly, Lanovo<\/u>y<\/u><\/a>, 62).<\/p>\n

A more conceptually defensible middle path, inspired by Puszta<\/u>i<\/u><\/a>, runs as follows: notwithstanding that the wrongful act may be a conditio<\/em> sine qua non<\/em> of a given harm, the State should bear no duty to repair that harm if it could not reasonably have been anticipated by the wrongdoer. That is a foreseeability standard, calibrated specifically to the purpose<\/em> of the primary obligation breached (be it\u00a0the prohibitions of refoulement<\/em>, collective expulsion, or arbitrary pre-removal detention) and to the gravity of the particular factual circumstances constituting that breach.<\/p>\n

Several reasons underpin adopting\u00a0Puszta<\/u>i<\/u><\/a>\u2019s refinements in expulsion cases. It is faithful to the ILC\u2019s own choice that the primary norm\u00a0should shape the applicable causation standard, rather than employing an across-the-board test. It allows foreseeability to be assessed in light of the specifics of each expulsion-related breach, while maintaining a coherent general framework that takes account of the concrete primary obligations involved.\u00a0It also aligns with an objective<\/em>\u00a0regime<\/em> of State responsibility, since what matters is not the mens<\/em> rea<\/em> of the State agents, but the objectively discernible purpose behind the primary obligation and the factual matrix of the breach (Puszta<\/u>i<\/u><\/a>, 163).<\/p>\n

Final<\/strong>\u00a0<\/strong>T<\/strong>hought<\/strong>s<\/strong> \u2013 Looking Ahead<\/strong><\/p>\n

A more conceptually robust approach to causal inquiry in expulsion cases would help ensure that any reparation ordered\u00a0is objective,\u00a0principled\u00a0and legally sound rather than seemingly arbitrary. It would enhance the predictability of outcomes and \u2013 perhaps most importantly for a field with already fragmented judicial practice \u2013 it would foster greater\u00a0comparability\u00a0of expulsion-related reparation decisions\u00a0across adjudicative bodies confronting materially similar facts.<\/p>\n

Circling back, finally, to d\u2019Aspremont\u2019s opening thoughts: perhaps the most candid lesson of this brief survey is that causation in reparation is not a secret waiting passively to be revealed by the right adjudicator or the right test. Rather, it is a standard that each judicial body actively constructs, and in doing so, oftentimes\u00a0forecloses alternative approaches. Recognising causation as a matter of construction, rather than discovery, may be the first step toward building a more coherent framework that expulsion-related cases still lack. The ILC\u2019s new<\/u> focus area<\/u><\/a>, \u2018Compensation for the damage caused by internationally wrongful acts\u2019, which addresses, inter alia, questions of causation, will most likely provide further impetus for academic reflection and doctrinal refinement in this field \u2013 and for courts to keep a close eye on these as well.<\/p>\n

 <\/p>\n

The views expressed in this blog post are solely those of the author and their content does not necessarily represent the views or the position of the European Union Agency for Fundamental Rights.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Jean d\u2019Aspremont\u2019s recent mind-expanding\u00a0book\u00a0\u2018The Epistemology of the Secret: International Law as Revelation\u2019\u00a0argues that international law, like any serious epistemological project, proceeds on the assumption that the world is a continuous stream of hidden knowledge which the discipline is duty-bound to reveal \u2013 except that, in the very act of revealing, international law also creates the […]<\/p>\n","protected":false},"author":41,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[6029,3641,3879,3880],"article-categories":[3572],"authors":[8158],"doi":[],"class_list":["post-30325","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-courts-and-tribunals","tag-international-courts","tag-reparations","tag-state-responsibility","article-categories-symposium","authors-tamas-molnar"],"acf":{"subline":"Kaleidoscope of Causal Inquiry in Reparation Cases Concerning Unlawful Expulsion of Non-Nationals"},"meta_box":{"doi":""},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30325","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/41"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=30325"}],"version-history":[{"count":4,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30325\/revisions"}],"predecessor-version":[{"id":30334,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30325\/revisions\/30334"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=30325"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=30325"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=30325"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=30325"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=30325"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=30325"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}