El resarcimiento del daño moral a Estados en el contexto de la responsabilidad internacional. Aportes desde la teoría de las emociones.

Abstract

Although the institute of moral damage, as conceived in Private Law, is based on the reparation of individuals’ emotional injuries, it is worth asking whether states may also be susceptible to such grievances. Although at the legal level, they form ideal entities, they contain from a sociological perspective, like any legal person, a social reality. This living social reality is recognized as a subject of law, but that is nothing more than a tool developed by jurists to facilitate the development of legal relations. While subjectivity is an ideal legal construct, the fact that behind each State there is a population, with a collective identity, linked by strong but sensitive emotional ties, should not be ignored. It could be considered that this intersubjective experience that connects the individual members of a group (in this case, the nationals of a State), allows a “moral” offense —or simply immaterial— to the group as a whole (in this case, to the State as legal personification of the group) acting as emotional damage to the members of the group.

Modern emotions theory understands that societies can develop “collective emotions”, which are defined as the accumulation of individual emotions that different people experience as a result of feeling identified with a particular group. In order for a society to develop its own emotional orientation, it must have common experiences and norms shared by its members, paradigmatic attributes of States. Thus, States are prone molds for the formation of collectivities that feel an intense identification with their nationality as a membership group. This entails the risk that a grievance of a moral order inflicted on the group are transferred to each of its members, who will feel in their person the impact of the emotional confrontation due to their intimate identification with the aggrieved group.