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Max Planck Encyclopedia of Public International Law [MPEPIL]

Reparations

Dinah Shelton

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 25 June 2019

Subject(s):
Reparation — Belligerence — Responsibility of states — Compensation — Reparations — Geneva Conventions 1949 — Armed conflict — Prisoners of war

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Concept and Definition

Reparation means recompense given to one who has suffered legal injury at the hands of another; to make amends, provide restitution, or give satisfaction or compensation for a wrong inflicted; it also refers to the thing done or given to the injured party. Restitution is restoring to the rightful owner something that has been wrongfully taken; it also means returning an injured party to a condition or situation that would have obtained had no wrongful act been committed. Compensation is usually money, but also refers to other materials or goods given as an equivalent to make amends for a loss, damage, or injury when restitution is not possible. A claim for reparation may arise in one of three circumstances. First, historically, war reparations were sought by the victorious side in a conflict and sometimes were intended to recompense the costs of the conflict, without regard to the commission of violations of international law such as war crimes. Second, in modern international law reparation provides the means of redress when a subject of international law has committed an internationally wrongful act against another (Subjects of International Law). Third, international agreements sometimes impose liability without fault on an acting party, requiring compensation when losses occur in the conduct of ultra-hazardous activities.

Two basic principles govern reparation. First, an international wrong generates an obligation of reparation, and, secondly, reparation must insofar as possible eradicate the consequences of the illegal act. The Permanent Court of International Justice (PCIJ) has called the obligation of reparation part of the general conception of law: ‘[I]t is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation’ (Factory at Chorzów [Germany v Poland] [Claim for Indemnity] [Merits] 29; ‘Chorzów Factory Case’). According to Vattel, every State has the right to obtain complete reparation when an injury is done (E de Vattel, The Law of Nations or Principles of the Law of Nature [4th edn Clark and Sons London 1811] 155, para. 51).

One widely accepted purpose of reparation is remedial justice, to rectify the wrong done to an injured party and correct injustice by restoring the status quo ante (see also Status Quo). Reparation is thus designed to place an aggrieved party in the same position as if no wrongful act had occurred, without respect to the cost or consequences for the wrongdoer. This approach appears to be the basis for most international decisions on reparation including the Chorzów Factory Case; but other theoretical bases are possible. Reparation also may serve to punish and deter wrongdoing. Law and economic analysis of efficiency could similarly be brought to bear in designing remedies and deterring violations of law by imposing appropriate costs for breaches of international obligations. Restorative justice, with its focus on reconciliation and inducing positive future behaviour, is yet another model. Finally, reparation in the context of strict liability regimes serves to allocate the risk of loss due to harm resulting from economic or other activities, even when the relevant State has complied with its due diligence obligations to prevent transboundary harm. While the acting State has committed no legal wrong, it is deemed equitable for it to repair the harm it caused by an activity from which it has benefited at the expense of another. Only a handful of treaties make States liable for such harm without fault.

B.  Historical Evolution of Legal Rules

1.  War Reparation

In early history, vanquished peoples paid tribute to the victors, over time giving rise to the custom of war indemnities intended to cover the victor’s war costs. Reparation came to replace the term ‘war indemnity’ after World War I, when the Allies sought to make the defeated States pay for all the damage caused by the conflict.

In modern conflicts, the issue of war reparation has been largely overtaken by that of reparation for internationally wrongful acts. During the Iraq-Kuwait War (1990–91), the UN Security Council adopted a dozen resolutions concerning the invasion and occupation of Kuwait by Iraq, focusing on the illegality of Iraq’s actions and its consequent liability for any direct loss, damage, or injury suffered by other States and their nationals. Resolution 687 (1991) both specified the obligation of reparation and created a fund from the sale of Iraqi oil to compensate claimants, conferring on a specially-created United Nations Compensation Commission (‘UNCC’), the mandate to decide claims presented and administer the fund. On a bilateral basis, the Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea (12 December 2000), in Art. 5, established the Eritrea-Ethiopia Claims Commission to arbitrate all claims between the two governments and between private entities for loss, damage, or injury related to the conflict and resulting from violations of international humanitarian law or other violations of international law. In Decision No 3, entitled ‘Remedies’, the Commission decided that ‘in principle, the appropriate remedy for valid claims submitted to it should be monetary compensation’ without foreclosing the possibility of providing other types of remedies in appropriate cases. The amount of compensation was set taking into account each State’s economic capacity and its obligations pursuant to the UN human rights Covenants. The Commission found that ‘awards of compensation of the magnitude sought by each Party would impose crippling burdens upon the economies and populations of the other, notwithstanding the obligations both have accepted under the Covenants.’ It also noted that ‘the prevailing practice of States in the years since the Treaty of Versailles has been to give very significant weight to the needs of the affected population in determining amounts sought as post-war reparations’ (Final Award—Eritrea’s Damages Claims [17 August 2009] para. 21).

Violations of international humanitarian law trigger an obligation of reparation (Humanitarian Law, International). Art. 3 Convention concerning the Laws and Customs of War on Land (‘1907 Hague Convention IV’) obliges Contracting Parties to pay compensation for a violation of the regulations. According to the Geneva Conventions I–IV (1949), States cannot absolve themselves or another High Contracting Party of any liability incurred in respect of grave breaches (Art. 51 Geneva Convention I; Art. 52 Geneva Convention II; Art. 131 Geneva Convention III, and Art. 148 Geneva Convention IV). Art. 91 Geneva Conventions Additional Protocol I (1977) makes it explicit that any party to a conflict that violates the provisions of the Geneva Conventions or the Protocol ‘shall … be liable to pay compensation’. Sections I and II Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict ([signed 14 May 1954, entered into force 7 August 1956] 249 UNTS 358) includes a specific obligation of restitution (see also Cultural Property, Protection in Armed Conflict).

2.  Reparation for Internationally Wrongful Acts

The duty to provide reparation is an obligation under customary international law that arises automatically upon the commission of an internationally wrongful act. It is a new and separate obligation independent from the primary obligation that was breached (Chorzów Factory Case 47; Reparation for Injuries Suffered in the Service of the United Nations [Advisory Opinion] 174). It does not matter whether the source of the obligation originates in a treaty or customary international law. Art. 60 Vienna Convention on the Law of Treaties allows an injured State the option of terminating a treaty for material breach, but does not automatically void an agreement as a consequence of a breach or repudiation. In the Gabčikovo-Nagymaros Case (Hungary/Slovakia), the International Court of Justice (ICJ) held that the bilateral agreement between the parties remained in force, despite continuing material breaches by both sides (at para. 114). While States may agree that some treaties will terminate upon breach, this as a matter regulated by the relevant primary obligation, not by the law of State responsibility.

Reparations serve primarily to re-establish the situation that would have prevailed if no breach of an international obligation had occurred. It is thus directed towards ensuring fulfilment of the primary obligation and redressing the harm that resulted from the breach. In theory, therefore, restitution should be afforded when possible, and should be the preferred or normal remedy (Temple of Preah Vihear [Cambodia v Thailand] [Merits] [1962] ICJ Rep 6). Reparation also may involve guarantees or assurances against future breaches of the same obligation.

Various unsuccessful efforts to codify the law of State responsibility took place during the past century, uncertainty about reparation proving to be one of the stumbling blocks (Codification and Progressive Development of International Law). Early work by the League of Nations and private bodies to codify the rules on the topic reflected a traditional focus on responsibility for injuries to aliens. The League of Nations’ 1930 Codification Conference in The Hague was unable to reach agreement on the substantive rules regarding the treatment of aliens and their property, because the meeting was divided between proponents of an international standard of justice and those favouring a standard of national treatment. In addition, the Conference Subcommittee on Damages concluded that it was best to leave the issue of reparation for future development as there had not yet been sufficient crystallization of the principles in State practice to warrant codification (Troisième sous-commission, ‘Base de discussion Nos 19 et 29: Rapport de la Troisième sous-commission distribué aux membres de la commission’ 235).

10  The UN International Law Commission (ILC) took up the issue of State responsibility upon its creation in 1949. The ILC’s first special rapporteur on State responsibility noted, ‘It would be difficult to find a topic beset with greater confusion and uncertainty’ (Garcia-Amadory Rodrígues Report on International Responsibility [1956] para. 6). In August 2001, the ILC adopted and forwarded to the UN General Assembly a text containing 59 articles with a lengthy commentary annexed (Draft Articles on Responsibility of States for Internationally Wrongful Acts; ‘Draft Articles on State Responsibility’), but did not recommend to the UN General Assembly that the articles be considered for adoption as a treaty. The UN General Assembly followed the ILC’s suggestion, and in Resolution 56/83 of 12 December 2001, took note of the articles and ‘commended’ them to the attention of governments ‘without prejudice to the question of their future adoption or other appropriate action’ (at 499).

11  Part 2 Draft Articles on State Responsibility articulates the legal consequences that automatically flow from breach of an international obligation. The three chapters of Part 2 affirm these new obligations of reparation as duties of the responsible State, not as rights of the injured party (Crawford ‘Third Report on State Responsibility’ 4–6, 12–13). Two conceptual premises are evident in the ILC’s treatment of reparation: (1) the importance of upholding the rule of law in the interest of the international community as a whole, and (2) remedial justice as the goal of reparation for those injured by the breach of an obligation. Three sets of provisions reflect the two concerns. First, the Draft Articles on State Responsibility consider reparation in a multilateral context rather than as an exclusively bilateral issue, emphasizing the restoration and maintenance of the rule of law and elaborating the consequences of a serious breach of a peremptory norm. The shift to obligations also serves to reinforce the concern to restore and maintain the rule of law. Second, the Draft Articles on State Responsibility indicate that the purpose and scope of reparation are limited to remedial measures, excluding sanctions or penalties such as punitive damages. Rules concerning compensation restrict damages to provable, proximate losses to avoid excessive recovery. Even the traditional remedy of satisfaction is treated with caution because it has been used in the past for punitive purposes. Third, the Draft Articles on State Responsibility insist on the obligation of full reparation but provide for some flexibility, incorporating an element of proportionality or taking into account equitable considerations in affording reparation.

12  Chapter III Draft Articles on State Responsibility adds two innovative articles on reparation, addressing ‘a serious breach by a State of an obligation arising under a peremptory norm of general international law’. The Chapter makes no attempt to identify peremptory norms, although the commentary gives as examples the prohibitions of aggression, slavery and the slave trade, genocide, racial discrimination, and apartheid, and Art. 50 Draft Articles on State Responsibility on countermeasures also suggests that some humanitarian and human rights norms and the prohibition on the use of force fall within the category of peremptory norms (Use of Force, Prohibition of). A ‘serious breach’ is defined as one involving a gross or systematic failure by the responsible State to fulfil the obligation. The consequences that follow from such a breach are that States shall co-operate to bring to an end such a breach through lawful means; secondly, no State shall recognize as lawful a situation created by a serious breach, nor render aid or assistance in maintaining that situation. The duty of reparation by the responsible State is undiminished and additional to the duties of third States.

3.  Reparation for the Harmful Consequences of Lawful Acts

13  Strict liability is foreseen in texts regulating activities considered as especially new or dangerous, such as the exploration and exploitation of the outer space, and which are largely conducted by State actors (Liability for Lawful Acts; Outer Space, Liability for Damage). The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (‘Outer Space Treaty’), provides both for State responsibility and strict liability. First, Art. VI Outer Space Treaty provides that the States Parties bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities. Art. VII Outer Space Treaty adds that each State that launches or procures the launching of an object into space and each State from whose territory or facility an object is launched, is liable to another State or to its natural or juridical persons for harm caused by such object, or its component parts, on the Earth, in air space or in outer space, including the Moon and other celestial bodies. Taken together, these two provisions distinguish between responsibility based on fault in outer space (Art. VI Outer Space Treaty) and strict liability for the consequences of space activities on earth (Art. VII Outer Space Treaty).

14  The Convention on International Liability for Damage Caused by Space Objects (‘Liability Convention’) develops the earlier principles, giving several details concerning their implementation. According to Art. II Liability Convention, a launching State is absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight. Whenever two or more States jointly launch a space object, they are jointly and severally responsible for any damage caused. A State from whose territory or facility a space object is launched shall be regarded as a participant in a joint launching. Exoneration from strict liability is granted to the extent that a launching State establishes that the damage has resulted from another’s gross negligence or from an intentional act or omission. No exoneration will be granted in cases where the damage has resulted from activities conducted by a launching State in breach of international law. Nationals of the launching State or foreign nationals participating in the launching cannot ask for compensation of the damage caused by the launching State (Art. VII Liability Convention).

15  UN General Assembly Resolution 47/68, which proclaims ‘Principles Relevant to the Use of Nuclear Power Sources in Outer Space’, similarly provides for strict liability, stating that

[e]ach State which launches or procures the launching of a space object and each State from whose territory or facility a space object is launched is internationally liable for damage caused by such space objects or their component parts. This fully applies to the case of such a space object carrying a nuclear power source on board. Whenever two or more States jointly launch such an object, they shall be jointly and severally liable for any damage caused, in accordance with article V of the above-mentioned Convention. (At Principle 9)

16  Within the Antarctic system (Antarctica), efforts to conclude a liability annex to the Protocol on Environmental Protection to the Antarctic Treaty ([done 4 October 1991, entered into force 14 January 1998] [1991] 30 ILM 1455) partially succeeded in June 2005, with the conclusion of Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty: Liability Arising from Environmental Emergencies (‘Annex VI’), a limited agreement on environmental emergencies. Art. 2 (b) Annex VI defines ‘environmental emergency’ as any accidental event that takes place after the entry into force of the Annex when the accident results in or imminently threatens significant and harmful impact on the Antarctic environment. The scope of potential liability extends to all governmental and non-governmental activities for which advance notice is required under the Antarctic Treaty ([signed 1 December 1959, entered into force 23 June 1961] 402 UNTS 71), including tourism. The system is thus a ‘mixed’ one of liability for operators whether they are governmental or non-governmental actors (Non-State Actors). This is significant because many activities in Antarctica are conducted or sponsored by governments. Any operator that fails to take prompt and effective response action is liable to pay the costs of response action taken by parties. Where the defaulting operator is a State operator and no party took response action, the State operator is liable to pay the equivalent of the costs of response action that should have been taken. This sum is paid into a fund maintained by the Secretariat. Liability is strict, but an operator will not be liable if the operator proves that the emergency was caused by 1) an act or omission necessary to protect human life or safety; 2) an exceptional natural disaster which could not have been reasonably foreseen, provided all reasonable preventive measures have been taken; 3) an act of terrorism; or 4) an act of belligerency against the activities of the operator (Art. 8 Annex VI). Residual State liability for the acts of private parties arises if the party fails to take appropriate measures to ensure compliance with the annex. Although Art. 6 Annex VI refers to liability, it is about State responsibility instead, because its focus is a State’s failure to comply with its legal obligation to take appropriate measures to prevent harm by non-State actors within its jurisdiction. Such omissions are often the bases of reparation claims against States under the law of State responsibility.

17  In 1978, the International Law Commission took up the question of ‘International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law’. Over two decades later, it presented to the UN General Assembly Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (‘Preventive Draft Articles’). The UN General Assembly reviewed the articles and asked the ILC to continue working on the topic of international liability, ‘bearing in mind the interrelationship between prevention and liability’ (UNGA Res 56/82 para. 3). In May 2006, the ILC adopted the Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities (‘Draft Principles’). To a large extent, these efforts supplement and complete the ILC Draft Articles on State Responsibility, although the content of the adopted rules appears largely to repudiate State liability when the State has complied with the Preventive Draft Articles.

18  The ILC Draft Principles approach the issue as one of allocating the risk of loss due to harm resulting from lawful economic or other activities, when the relevant State has complied with its due diligence obligations to prevent transboundary harm. The articles explicitly state that an additional purpose is ‘to preserve and protect the environment in the event of transboundary damage, especially with respect to mitigation of damage to the environment and its restoration or reinstatement’ (Principle 3 (b) Draft Principles). Principle 2 Draft Principles contains broad definitions of damage—in addition to personal injury and property loss, damage includes ‘loss or damage by impairment of the environment, the costs of reasonable measures of reinstatement of the environment, including natural resources, and the costs of reasonable response measures’—environment—environment includes ‘natural resources, both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors, and the characteristic aspects of the landscape’—and hazardous activity—defined as ‘an activity which involves a risk of causing significant harm’.

19  The Draft Principles support strict liability between States only if the State itself is the operator of the activity. For non-State activities, Principle 4 (5) Draft Principles does not require the State to afford reparation, but in the event that the measures for operator liability are insufficient, ‘the State of origin should also ensure that additional financial resources are made available’. The State also must promptly notify all States that are potentially or actually affected, ensure that appropriate response measures are taken, and provide domestic remedies. The absence of State liability may be understood in the context of the prior Preventive Draft Articles: failure to fulfil the due diligence duty to prevent harm is considered a breach of an international obligation and shifts the applicable legal regime to one of State responsibility.

20  In practice, strict liability of States is rarely accepted when the operators are private actors. Strict liability to provide reparation has been accepted only for activities typically undertaken by government actors: eg outer space exploration and exploitation and Antarctic scientific research. Most international agreements on reparation establish regimes that channel civil liability to non-State actors. The Protocol on Liability and Compensation for Damage resulting from Transboundary Movements of Hazardous Wastes and Their Disposal (‘Basel Protocol’) aims, for example, to provide a comprehensive regime for liability and for adequate and prompt compensation for damage resulting from transboundary waste movements, including illegal traffic. Compensation extends to the cost of measures of reinstatement of the impaired environment, limited to the costs of measures actually taken or to be undertaken, and the costs of preventive measures, including any loss or damage caused by such measures. Preventive measures are defined as any reasonable measures taken by any person in response to an incident to prevent, minimize, or mitigate loss or damage, or to affect environmental clean-up. The Basel Protocol applies to damage due to an incident occurring during a transboundary movement of hazardous wastes and other wastes and their disposal, including illegal traffic, in particular in relation to movements destined for disposal operations. The Basel Protocol imposes strict liability on, first, the person who provides notification of a proposed transboundary movement according to Art. 6 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (‘Basel Convention’), and, thereafter, the disposer of the wastes. Liability for damage is subject to financial limits specified in Art. 12 (1) and Annex B Basel Protocol. Liability limits are removed if the responsible person causes or contributes to causing damage by failure to comply with the provisions implementing the Basel Convention, or due to wrongful intentional, reckless, or negligent acts or omissions. Those potentially liable must establish and maintain insurance or other financial guarantees during the ten-year period in which claims might be brought. The Basel Protocol imposes upon the Contracting Parties the obligation to adopt the legislative, regulatory and administrative measures necessary to implement the protocol and to inform the Secretariat of the protocol of the measures it has taken. The Basel Protocol expressly does not affect the rights and obligations of the Contracting Parties under the rules of general international law with respect to State responsibility.

C.  Forms of Reparation

21  Art. 31 Draft Articles on State Responsibility sets forth the general rule from the Chorzów Factory Case that the responsible State is legally and automatically obliged to make ‘full’ reparation for any injury, including any material or moral damage caused by the wrongful act. ‘Injury’ means any damage caused by the wrongful act and thus includes any material or moral damage caused, but the formulation is intended to exclude merely abstract concerns or general interests of a State.

22  While some former and present approaches to the law of State responsibility considered cessation a form of satisfaction, a remedy available to the injured State, the ILC Draft Articles on State Responsibility treat cessation as an inherent obligation of the responsible State and not as a form of reparation. Art. 29 Draft Articles on State Responsibility affirms that the breach of an obligation does not end a State’s duty to comply; the obligation continues and the State must conform its conduct to the law. Art. 30 Draft Articles on State Responsibility adds that if the wrongful act is continuing, it must cease, and ‘if circumstances so require’, the State responsible must offer appropriate assurances and guarantees of non-repetition. Cessation is thus the first requirement imposed on a State committing a continuing wrongful act (see Rainbow Warrior [New Zealand v France] France–New Zealand Arbitration Tribunal [Award of 30 April 1990] [1990] 20 RIAA 215, 270). There are two consequences of this approach. First, cessation is not at the option of the injured State; the violation must cease, even if the injured State does not demand it. Second, cessation is not subject to the limits of proportionality, which the articles impose on restitution and other forms of reparation. Compliance with the norm must be restored.

23  The forms of reparation are restitution, compensation, and satisfaction, either singly or in combination, accompanied in appropriate cases by interest. Restitution and cessation of the breach are often co-extensive, as in the Arrest Warrant Case (Democratic Republic of the Congo v Belgium) ([2002] ICJ Rep 3), where the ICJ held that the appropriate restitution would be cancellation of the still operative arrest warrant; the same act also served to end the continuing breach (at para. 76). With such orders, the Court leaves the means of implementation to the State. Thus, in Avena and Other Mexican Nationals (Mexico v United States of America) ([2004] ICJ Rep 12 para. 153 [9]), the Court held that ‘the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals’ who had not been afforded the consular assistance required by the Vienna Convention on Consular Relations ([concluded 24 April 1963, entered into force 19 March 1967] 596 UNTS 261).

24  Restitution is required of the responsible State unless it is materially impossible or ‘involve[s] a burden out of all proportion to the benefit deriving from restitution instead of compensation’ (Art. 35 Draft Articles on State Responsibility) This proportionality test applies except in case of a breach of a peremptory norm or a continuing violation where cessation and restitution may be co-extensive. This may reflect a policy choice that no State should be allowed to opt out of a peremptory norm through the payment of compensation if it is at all possible to perform the required act.

25  Compensation is intended only to indemnify quantifiable losses suffered by the injured State. In the Gabčikovo-Nagymaros Case the ICJ declared it to be ‘a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it’ (at para. 152). The State responsible must compensate for any financially assessable damage, including loss of profits, that its wrongful act caused the injured State or its nationals, compensation commensurate with the loss, so that the injured party may be made whole (Opinion in the Lusitania Cases [1923] 7 RIAA 32, 39). Causation is a difficult issue especially for remote events or those where there may be intervening acts contributing to the injury and failure to prove a causal link may limit the reparation due. The failure of an injured party to mitigate damages or a party’s contributory fault also may limit the amount of compensation awarded (Gabčikovo-Nagymaros Case para. 80).

26  Interest shall be awarded when necessary to ensure full reparation, leaving the rate and mode of calculation to be decided on a case-by-case basis (The ‘Wimbledon’ [Government of His Britannic Majesty v German Empire] PCIJ Series A No 1, 32; M/V ‘SAIGA’ [No 2] [Saint Vincent and the Grenadines v Guinea] [Merits] [Judgment] ITLOS Case No 2 [1 July 1999] 1999 ITLOS Reports 10 para. 173; Case A19 [Iran v United States] [Decision] 1986 16 Iran-United States Claims Tribunal Reports 285, 289–90).

27  The article concerning guarantees of non-repetition is included with cessation in Chapter I of Part 2 Draft Articles on State Responsibility, as an aspect of the rule of law affected by the breach, rather than in Chapter II Draft Articles on State Responsibility on reparation, because such measures look to the protection or maintenance of the legal relationship in the future. Art. 30 Draft Articles on State Responsibility indicates that, even if demanded, appropriate assurances and guarantees should be afforded only when ‘circumstances so require’. The commentary reinforces the limited role foreseen for such measures, calling them measures of ‘rather exceptional character’. The rationale for the limitation is not only the anticipatory nature of the measures, but also prior abusive State practice. The ICJ’s jurisprudence reflects this cautious approach, while some of the human rights tribunals issue orders for future conduct rather more frequently. Compare LaGrand (Germany v United States of America) (Judgment) 502–3 with eg Suárez-Rosero v Ecuador (IACtHR Series C No 44 [20 January 1999] and Last Temptation of Christ (Olmedo-Bustos v Chile) IACtHR Series C No 73 [5 February 2001].

28  Like restitution and compensation, satisfaction is intended to restore the injured State to its pre-injury status, as though the wrong had not occurred, but it focuses on the wrongful conduct of the responsible State so as to provide a remedy for injuries that are not financially assessable, such as moral or legal injury. Satisfaction appears in the ILC Draft Articles on State Responsibility as an exceptional remedy to be awarded only in certain cases. Satisfaction may consist of an acknowledgment of the breach, an expression of regret, or apology, or another appropriate modality that is neither disproportionate nor humiliating to the responsible State. Apologies are often demanded or offered when a State has committed a wrongful act (LaGrand [Germany v United States of America] [Provisional Measures] [1999] ICJ Rep 9; Vienna Convention on Consular Relations [Paraguay v United States of America] [Provisional Measures] [1998] ICJ Rep 248; ‘I’m Alone’ [Canada v United States of America] [1935] 3 RIAA 1616).

D.  Current Legal Situation

29  The ILC’s articles on reparation restate the existing law on inter-State reparation, but they also innovate in significant ways to reinforce the international rule of law. The articles have been cited by parties and judges at the ICJ and the International Tribunal for the Law of the Sea (ITLOS) (M/V ‘SAIGA’ [No 2] [Saint Vincent and the Grenadines v Guinea] [Merits] [Judgment] ITLOS Case No 2 [1 July 1999] 1999 ITLOS Reports 10, para. 171; see also Saiga Cases).

30  Reparation in favour of non-State actors was not part of the ILC’s Articles on State Responsibility, and the articles state only that they are ‘without prejudice’ to obligations that may be owed to non-State subjects of international law. The ICJ has indicated that the basic principle of reparation applies to reparation for injury to individuals (Application for Review of Judgement No 158 of the United Nations Administrative Tribunal [Advisory Opinion] [1973] ICJ Rep 166, 197–98). In 2012, the ICJ issued a rare compensation award in the reparations phase of a diplomatic protection case brought by the Government of the Republic of Guinea against the Democratic Republic of Congo (‘DRC’) (Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo, Compensation Owed by the Democratic Republic of the Congo to the Republic of Guinea [Judgment of 19 June 2012]). In its earlier merits judgment of 2010, the Court had found that DRC unjustly imprisoned Diallo, deprived him of his property, and wrongfully expelled him from the State, all in violation of provisions of the International Covenant on Civil and Political Rights (‘ICCPR’) and the African Charter on Human and Peoples’ Rights. The ICJ awarded US$85,000 as compensation for non-material injury based on ‘equitable considerations’. For material injury, the Court found that the full claims for loss of personal property and of income were not supported by the evidence, but nonetheless awarded US$10,000 for loss of property, also based on ‘equitable considerations’. It awarded post-judgment interest to Guinea, but decided that each of the parties should bear its own costs, per the Court’s Statute. In determining the general principles governing compensation, the Court took into account the practice of other international tribunals, including the International Tribunal for the Law of the Sea, the European Court of Human Rights (‘ECtHR’), the Inter-American Court of Human Rights (‘IACtHR’), the Iran-United States Claims Tribunal, the Eritrea–Ethiopia Claims Commission, and the United Nations Compensation Commission. The Court also made clear that the compensation awarded to Guinea was intended to provide reparation for Diallo’s injury, suggesting an obligation on the part of the government to ensure that he receives any payment made by the DRC.

31  Reparation has been a growing issue in international human rights law (Human Rights, Remedies) and international criminal law. The Rome Statute of the International Criminal Court was the first to authorize reparation to victims of international crimes. Neither the ad hoc tribunal for the former Yugoslavia nor the ad hoc tribunal for Rwanda did so, although restitution of property or its proceeds could be imposed as a punishment additional to imprisonment. In contrast, Art. 75 Rome Statute directs the International Criminal Court (ICC) to establish principles relating to reparation for victims, including restitution, compensation, and rehabilitation, and authorizes the Court to order reparation against a convicted person in respect of victims. This provision makes clear that any subject of international law is potentially a claimant or may be obliged to afford reparation for an internationally wrongful act (Individuals in International Law; International Organizations or Institutions, Responsibility and Liability). In the ICJ’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court suggested that the consequences of State responsibility require Israel to compensate all natural or legal persons harmed by the wall, even those without a State able to institute a claim of diplomatic protection (para. 152).

32  International tribunals exercise their stated inherent power to afford remedies (LaGrand [Germany v United States of America] [Judgment] para. 48; Military and Paramilitary Activities in and against Nicaragua [Nicaragua v United States of America] [Merits] [1986] ICJ Rep 14, 142, and Fisheries Jurisdiction (Federal Republic of Germany v Iceland] [Merits] [1974] ICJ Rep 175 paras 71–76). In international judicial practice, States have requested awards under all the headings listed in the Articles on State Responsibility: cessation, restitution, compensation, satisfaction, and guarantees of non-repetition. The number of requests for various forms of reparation seems to be increasing, with States no longer content to have only a declaration on whether or not the law has been breached. In response, the ICJ and other tribunals have awarded compensation and ordered specific action be taken. In the United States Diplomatic and Consular Staff in Tehran Case (United States of America v Iran) ([1980] ICJ Rep 3), for example, the ICJ ordered the release of the hostages after finding that Iran had violated its international obligations to the US.

E.  Significance

33  The ILC articles and awards of reparation by international tribunals respond to the challenge of upholding the international rule of law in an increasingly complex global legal environment. They first insist that reparation is owed by the responsible State as an obligation under general international law, not as a right of an injured party. Second, they emphasize the continuing duty to perform an international obligation and thus the obligation to cease any continuing wrong. Third, there is growing recognition that the responsible State may owe obligations not only to the injured State or States, but to the international community as a whole. In turn, the international community has a duty to respond and act to halt a serious breach of a peremptory norm.

34  The importance of the ILC articles on reparation lies in the relatively few international judgments setting forth general principles on the topic, despite the essentiality of reparation to the settlement of disputes. The PCIJ noted that even a declaratory judgment can serve ‘to ensure recognition of a situation at law, once and for all and with binding force as between the Parties; so that the legal position thus established cannot again be called in question in so far as the legal effects ensuing therefrom are concerned’ (Interpretation of Judgments Nos 7 and 8 [The Chorzów Factory] [Germany v Poland] PCIJ Series A No 13, 20).

35  Those actually harmed by breaches of international law seek redress, efficiency, fairness, and predictability of future conduct, as well as compliance with legal norms. In this respect, it is significant that the number of international tribunals has increased alongside compliance mechanisms and that all such tribunals have rising caseloads. Adversarial processes allow injured parties to obtain reparation and redress grievances, with the hope that this will reduce future conflicts and promote the rule of law.

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