1 The ‘primacy’ of restitution and the ILC’s approach
… reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear …1
However, the Commentary to the ILC Articles takes pains to adopt a flexible approach, with the result that it effectively limits the significance of the principle of the primacy of restitution and reflects the rarity of restitution in practice. The significant gap between the theoretical primacy of restitution and the relative rarity of its occurrence in practice, especially in the jurisprudence of arbitral and judicial tribunals, has always been a problem for those asserting the primacy of restitution. Indeed this gap between theory and practice References(p. 590) also threatens to undermine any attempt to set out general rules in this area. The ILC takes a realistic approach and, despite its commitment to primacy, repeatedly concedes that restitution is often impossible or unavailable, or that its value to the injured State is so reduced that other forms of reparation take priority.2
There are some fundamental uncertainties about the concept of restitution. The wider and more problematic definition is that restitution must ‘reestablish the situation which would … have existed if [the illegal] act had not been committed’. This is the formula adopted in the Chorzów Factory case itself, but it necessarily involves speculation as to what would have been the situation if the illegal act had not occurred. Accordingly, the ILC has chosen to adopt a narrower and simpler definition, that restitution ‘consists in reestablishing the status quo ante, ie the situation that existed prior to the occurrence of the wrongful act …’. This latter form of restitution could be supplemented by compensation where appropriate in order to provide full reparation.
2 The relation between restitution and cessation
It is clear that the duty of restitution will often overlap with the obligations of the wrongdoing State to stop its unlawful action under article 30 of the ILC Articles on cessation and nonrepetition. The results of restitution and cessation, both legal consequences of a wrongful act, are not always distinct. The duty to cease the illegal act and the duty to restore the situation which existed before the illegal act are inextricably intertwined. Cessation of wrongful acts may well be required, however, in many cases when restitution is no longer possible.
The relation of these two concepts seems to have caused confusion to the Tribunal in the Rainbow Warrior.3 France and New Zealand had agreed that two French agents responsible for the blowing up of the Greenpeace vessel, the Rainbow Warrior, in a New Zealand harbour should serve a three-year sentence on the French Pacific island of Hao. New Zealand successfully accused France of violating this agreement because of its connivance in the premature repatriation of the two agents to France and New Zealand expressly sought restitution for this breach of international law. The Arbitral Tribunal interpreted New Zealand’s request for restitution as in effect a request for the cessation of an illegal act; it then rejected this request on the ground that the obligation on France to detain the two agents in custody was limited in time and had now expired. Thus the confusion between cessation and restitution left New Zealand without an adequate remedy for the violation of its rights by France.
3 Material and legal restitution
Restitution takes two main forms: material and legal. Material restitution is the more common in State practice and may involve the liberation of individuals illegally seized or detained, the restoration of property or of territory illegally taken or occupied, and the return of a ship or documents. For example, in British Claims in the Spanish Zone of Morocco4 the Tribunal ordered Spain to replace consular premises unlawfully destroyed.
References(p. 591) Legal restitution denotes the alteration or revocation of a legal measure taken in violation of international law, whether a judicial decision or an act of legislation or even a constitutional provision. The best known case is Martini,5 where the tribunal decided that Venezuela was under an obligation to annul the judgment of a domestic court passed in violation of treaty obligations owed to Italy. Other cases on legal restitution are El Salvador v Nicaragua,6 where it was held that the situation existing before a treaty concluded in violation of international law obligations had to be restored, and La Société Radio Orient,7 where the PCA directed the revocation of an order made in violation of Egypt’s treaty obligations.
More recently, in LaGrand,8 Germany sought legal restitution in the form of the revocation of a national court judgment; it claimed that the United States had detained, tried and sentenced to death two German nationals without providing consular access, in violation of the Vienna Convention on Consular Relations. Germany subsequently abandoned its claim for restitution when the United States executed the two Germans notwithstanding the Court proceedings. Nevertheless Germany in its written submissions explained why it had originally asked for restitution, even though it was no longer pursuing its claim after both its nationals had been executed and the United States had thus made the return to the status quo ante impossible. Germany argued that the remedy of revocation of a national judgment in breach of international law was not at all alien to State responsibility; domestic court decisions constitute acts of the State just as acts emanating from the executive or legislative branches of government; and judicial acts of States are subject to the same regime of responsibility as all other acts of States. Germany cited the Martini case and the Peace Treaty of Versailles to show that a claim for annulment of a judgment of a domestic court was supported by international practice. Germany acknowledged that international practice accepting restitutio in integrum in case of decisions of domestic courts might be seen as somewhat inconclusive, but affirmed that the existence of a rule to the opposite effect, unequivocally excluding this remedy, could not be maintained either.
Awards of restitution by judicial and arbitral bodies are few and well known. In a significant proportion of these cases, the compromis expressly gave the tribunal the power to award restitution, as in the Chorzów Factory case itself. Many tribunals such as the Iran-US Claims Tribunal and the UN Compensation Commission have no power to do other than order compensation; human rights courts have generally adopted a narrow view of their own powers and limited themselves to declaratory judgments and financial compensation. In contrast the International Tribunal on the Law of the Sea asserted the possibility for it to make an award of restitution in M/V Saiga (No 2), citing the dictum in Chorzów Factory as authority.9 The traditional argument for the primacy of restitution rests therefore on principle rather than on practice; it seems more a matter of logic than of authority. Treaty practice, mostly in the form of post-war peace settlements, and diplomatic practice confirm the availability, if not the primacy, of restitution in appropriate cases.
Certain International Court judgments confirm that there may be a duty on a State to make restitution. However, there is little theoretical discussion of remedies by the Court References(p. 592) after Chorzów Factory. Those judgments which in substance recognize an obligation on the wrongdoing State to make restitution have, to date, generally taken the form of a declaratory judgment rather than an order. Thus, in Temple of Preah Vihear,10 the Court declared that there was an obligation on Thailand to withdraw its troops and to return any sculptures and other objects taken from the Temple which it had occupied illegally. In United States Diplomatic and Consular Staff in Tehran11 the Court declared that Iran must immediately take all steps to redress the situation resulting from the events of 4 November 1979 and to that end terminate the unlawful detention of consular and diplomatic staff, release all staff and ensure that they have the means to leave, and place the US Embassy premises in the hands of a protecting power. These were both cases where the obligation was to return property or persons, identified by the ILC in its commentary as the most straightforward type of restitution.12 More recently, in Land and Maritime Boundary between Cameroon and Nigeria,13 the Court decided that both States were under an obligation expeditiously and without condition to withdraw any administration or military or police forces which were present in the territory falling under the sovereignty of the other.
However, in Arrest Warrant14 the Court went further. In this case the DRC claimed that Belgium had violated the principle of sovereign equality and the diplomatic immunity of the DRC Minister of Foreign Affairs because a Belgian judge had issued an international arrest warrant seeking the detention of the Minister for extradition on charges of serious violations of international humanitarian law. The Court accepted the DRC’s request that it require that Belgium should recall and cancel the international arrest warrant. The Court held that ‘the situation which would, in all probability, have existed if the illegal act had not been committed could not be re-established merely by a finding that the warrant was unlawful under international law’.15 The warrant was still extant and remained unlawful. The Court therefore considered that Belgium must, by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it was circulated.16
The Court distinguished this case in Avena,17 another dispute concerning the violation by the United States of the Vienna Convention on Consular Relations as regards its treatment of foreign nationals in detention. The Court went into some detail in its consideration of restitution in this case. It refused Mexico’s request for restitution in the form of the annulment of the convictions and sentences of its nationals. Because the internationally wrongful acts were the failure of the United States authorities to inform the Mexican nationals concerned, to notify Mexican consular posts, and to enable Mexico to provide consular assistance, it followed that the appropriate remedy was an obligation on the United States to permit review and reconsideration of these cases by the courts. It was not the convictions and sentences of the Mexican nationals which were to be regarded as a violation of international law, but solely certain breaches of treaty obligations which preceded them.18
References(p. 593) It is significant that in both these cases the Court left a significant measure of discretion to the respondent State as to the choice of means. In Avena the Court stressed that the obligation of the United States was to provide, ‘by means of its own choosing,’ review and reconsideration of the convictions and sentences of the Mexican nationals. The concrete modalities for such review and reconsideration should be left primarily to the United States. But this freedom as to the choice of means was not without qualification. The Court stipulated that the review and reconsiderations should be effective. What was crucial in the process was the existence of a procedure which guaranteed that full weight be given to the violation of the rights set forth in the Vienna Convention. The process of review and reconsideration should occur within the overall judicial proceedings relating to the individual defendant concerned. The clemency process within the United States was not sufficient in itself to serve as an appropriate means of review and reconsideration.19
4 Choice of the injured State
It is generally recognized that it is the injured State which has the choice as to the form of reparation and, in particular, as to whether to request restitution; this is stipulated in article 43(2)(b) of the ILC Articles. Again the Commentary stresses that in practice many injured States will not choose restitution; in most cases it is normal to opt for compensation.20 Moreover, the simple statement of the right of the injured State to choose the form of reparation must be further modified in the light of several complicating factors.
In the case of a plurality of injured States, such as that arising in Nuclear Tests,21 each may invoke responsibility. But article 46 of the ILC Articles restricts the choice of the injured State: where one injured State seeks restitution and the other seeks compensation, then compensation is to prevail. It is difficult to reconcile this with the theoretical primacy of restitution, but it is clearly a practical response which indicates once more that compensation will be more usual than restitution in practice.
Another complicating factor is introduced by the radical provisions on the role of non-injured States in article 48 on ‘Invocation of responsibility by a State other than an injured State’. This provision, admitted to be progressive development rather than codification of the law, allows a non-injured State to invoke the responsibility of a wrongdoing State in cases where there is an obligation of collective interest or an obligation owed to the international community as a whole. In such a situation the non-injured State is given the right to call for reparation, including restitution, in the interests of the injured State or of the (non-State) beneficiaries of the obligation breached. The Commentary acknowledges the potential complexities of this new departure as regards claims for restitution, but says that it was only concerned to set out the general principle.22
There may also be certain breaches where the injured State is not left a free choice of reparation and must choose restitution. Thus the ILC Commentary suggests that in cases where life or liberty of an individual is at stake or the entitlement of a people to their territory or to self-determination it is not open to an injured State simply to take money for a References(p. 594) continuing breach.23 There is also controversy as to whether certain categories of breaches such as those involving jus cogens or erga omnes obligations leave an injured State with no choice of remedy other than to seek restitution. The final omission of the controversial provision on international crimes of States, and the substitution of serious breaches of obligations under peremptory norms of general international law in article 40, leaves this question unresolved.
5 Special regimes of reparation
Thus it is apparent that the form of reparation may depend on the primary obligation breached. That is, the crucial issue in the determination of the availability of restitution may be that it depends on the particular obligation breached. This was recognized to some extent by the ILC in its commentary on article 34 on forms of reparation.24 The decisive factor may be not only whether the obligation is jus cogens or erga omnes, but also the content of the primary obligation violated. Certain obligations lend themselves more easily to restitution than others; thus States are ready to accept that illegal seizure of territory or of historic property demands restitution, but may be more cautious in cases of expropriation of foreign-owned property. The general rules on reparation suggested by the ILC may be displaced by more specific regimes.
Here, as elsewhere, article 55 of the ILC Articles on lex specialis is of crucial importance; this provides that the Articles do not apply where there are applicable special rules. However, the scope of this as regards remedies is not entirely clear. It seems well established that the EU and WTO systems provide special regimes, but how far can other treaty regimes be regarded as special, excluding normal rules on the consequences of unlawful acts? And are there also customary law special, self-contained regimes which modify the general rules on remedies in the case of certain obligations?
The issue of special regimes came up dramatically before the International Court in Breard25 and La Grand.26 Paraguay and Germany respectively brought actions against the United States for its failure to provide consular access to their nationals who were detained, tried and sentenced to death there. On the question of the consequences of the unlawful act the parties disagreed as to the appropriate remedy: was the Vienna Convention on Consular Relations a special regime which excluded the possibility of restitution for breach and required only apology? Paraguay and Germany argued for the primacy of restitution. Paraguay said that restitution was the sole remedy which could have provided meaningful relief, undoing the effects of the illegal acts of the United States and permitting the exercise of their rights under the Vienna Convention. The United States would have had to void the conviction and sentences and to permit Paraguay fully to exercise its right of consular access at any new trial. It was of no consequence that restitution would have required the United States to reverse the judgment of a domestic criminal proceeding. In reply the United States claimed that Paraguay was not entitled to restitution. The assistance of consular officers would not have made any difference to the outcome of the proceedings. In State practice the only consequence of a failure to notify of the right to consular access under the Vienna Convention was that apologies were presented by the References(p. 595) government responsible. The invalidation of the proceedings and the return to the status quo ante found no support in State practice.
The Court did not pronounce on this issue in Breard because Paraguay withdrew its case after the United States executed its national. But in LaGrand the Court apparently rejected the United States’ argument that the Vienna Convention allowed only an apology for denial of consular access and implicitly accepted the German argument that some sort of restitution was the proper remedy: it did so in its finding that if the United States, despite its assurances to the contrary, were in the future to breach the obligation of consular notification an apology would not suffice where foreign nationals were subjected to long detention or convicted and sentenced to severe penalties. In such cases it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights in the Convention.
The Court subsequently clarified this in Avena. Although it rejected Mexico’s claims for restitution in the form of annulment of the convictions and sentences of the Mexican nationals detained in the United States, it held—without express use of the term ‘restitution’—that the appropriate remedy was an obligation on the United States to permit review and reconsideration of these cases by its courts.27
The issue of the impact of a primary rule on the primacy or availability of restitution remains controversial also in the context of expropriation of foreign-owned property. There was a clear division between developed and developing States on this topic which caused serious difficulties for the ILC in its early work on the consequences of breach under Special Rapporteurs Riphagen and Arangio-Ruiz.28 This controversy is reflected in the differences between the awards in TOPCO v Libya29 and BP v Libya.30 In the former, the Tribunal upheld the primacy of restitution in cases of expropriation on the basis of Chorzów Factory and arbitral practice. In the latter, in marked contrast, the Tribunal held that expropriation was a special case and that general rules and decisions on restitution were not authoritative in this area. The examination of judicial and arbitral jurisprudence and State practice on expropriation led to the conclusion that there was no support for the primacy of restitution in cases of nationalization. In the final Articles adopted in 2001 the ILC did not have to address this issue directly as it was dealing only with general rules and not with primary obligations.
6 Recent requests for restitution
In cases before the International Court, restitution has often been requested but has rarely been awarded. It remains an unusual remedy. It is interesting to consider requests in recent cases where the claimant State argued that restitution was the appropriate remedy. For example, in Armed Activities on the Territory of the Congo,31 the claimant State asked the Court to declare that all Ugandan forces should forthwith vacate its territory, that Uganda should secure the withdrawal of its nationals and that the DRC References(p. 596) was entitled to compensation ‘in addition to its claim for the restitution of all property removed’. Similarly, in Ahmadou Sadio Diallo, Guinea claimed that one of its nationals had been unlawfully imprisoned and expelled and that his property had been illegally confiscated; it sought not only an official apology but also an order that the DRC return all the non-monetary assets seized. These cases involve straightforward claims for material restitution.32
More controversial are cases where claimant States seek the annulment of a legal act. It is noteworthy that Spain did not do so in Fisheries Jurisdiction (Spain v Canada).33 Although Spain claimed that Canada’s regulation of fishing in the high seas violated international law, it merely asked the Court to declare that Canada’s legislation was ‘not opposable’ to it and to declare that Canada was bound to refrain from repetition. In contrast in Certain Criminal Proceedings in France, Congo asked the Court to declare that France ‘shall cause to be omitted the measures of investigation and prosecution’.34
7 Limits on restitution
The comparative rarity of restitution in practice may be partly explained by the limits on this form of reparation. The doctrine that restitution is not available in cases of material impossibility is well accepted and relatively uncontroversial, despite the fact that there have been few cases on this issue. Restitution will not be possible in the event of the disappearance or fundamental alteration of the property whose return is requested, as was the case in Forests of Central Rhodopia.35 In LIAMCO v Libya36 the Tribunal asserted the primacy of restitution in general but took a wide view of impossibility which effectively undermined any claim of restitution in cases of State expropriation of foreign-owned property. It said that restitutio in integrum is conditioned by the possibility of performance but that impossibility is in fact most usual in the international field.
Article 35 of the ILC Articles adds a second, rather more controversial, limit on the provision of restitution, that restitution not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation. Although international arbitral and judicial decisions do not expressly employ this terminology and the ILC Commentary does not mention cases on this principle, this seems to be a potentially useful general formula which offers a high degree of flexibility in decision-making on restitution. It is not entirely clear if it is intended to exclude the award of restitution in cases of expropriation of foreign-owned property.
The rule that restitution is not available where this would impose a disproportionate burden on the wrongdoing State could conceivably cover a situation such as that in the Gabcíkovo-Nagymaros case.37 Here the Court found that both the State parties had breached a 1977 Treaty on a joint scheme for the construction of dams for the production References(p. 597) of hydro-electricity, flood-control and the improvement of navigation on the Danube. The Court did not, however, order the obligations under the treaty to be fully reinstated, nor would it order the destruction of recent works constructed in violation of the treaty regime. In refusing this type of restitution, the Court invoked the Chorzów Factory principle that reparation wipe out all the consequences of an illegal act only ‘as far as possible’.38 But in fact the situation in this case does not seem to be a clear instance of material impossibility; it could be interpreted as a very wide interpretation of what constitutes material impossibility or alternatively it could fit under the proportionality doctrine.
Similarly, in Passage through the Great Belt39 Denmark had undertaken a project to construct a bridge over the Great Belt strait; Finland challenged the legality of this on the basis that the bridge would interfere with international navigation. When Finland requested as a provisional measure that the Court should order Denmark not to start construction of the bridge, Denmark claimed inter alia that the award of restitution on the merits of the case would be too burdensome. This argument could be seen as claiming a limit on restitution on grounds of disproportionality. Thus it seems important that the limits on restitution should be flexibly interpreted, ideally in such a way as to cover cases such as Walter Fletcher Smith,40 where the Tribunal simply held that in the best interests of the parties it would not award restitution.
Thus the simple principle of the primacy of restitution in the Chorzów Factory, a case in which restitution was not actually sought or awarded, masks a more complex reality. The ILC Articles, and more particularly the Commentary, give an indication of these complexities.
- MB Alvarez de Eulate, ‘La Restitutio in Integrum en la Practica y en la Jurisprudencia Internacionales’ (1972) 11 Revista de Ciencia y Tecnica Juridica, 29–32
- C Brown, A Common Law of Adjudication (OUP, Oxford, 2007)
- I Brownlie, System of the Law of Nations—State Responsibility Part I (OUP, Oxford, 1983)
- B Graefrath, ‘Responsibility and damages caused: Relationship between responsibility and damages’ (1984-II) 185 Recueil des cours 9
- C Gray, Judicial Remedies in International Law (OUP, Oxford, 1987)
- J Personnaz, La Reparation du prejudice en droit international public (Paris, Sirey, 1939)References(p. 598)
3 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215.