(p. 566) 26 Consequences of an Internationally Wrongful Act
In the event of an internationally wrongful act by a state or other subject of international law, other states or subjects may be entitled to respond. This may be done by invoking the responsibility of the wrongdoer, seeking cessation and/or reparation, or (if no other remedy is available) possibly by taking countermeasures. Cessation and reparation are dealt with in Part Two of the ILC’s 2001 Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA),1 whereas countermeasures are dealt with in Part Three. There are important differences between them: cessation and reparation are obligations which arise by operation of law on the commission of an internationally wrongful act, whereas countermeasures (if available at all) are an ultimate remedy which an injured state may take aft er efforts to obtain cessation and reparation have failed. They are responsive not just to the breach as such but to the responsible state’s failure to fulfil its secondary obligations, which is why they are dealt with in Part Three on invocation.
Not all states are entitled to respond to all breaches. For example in bilateral relations (e.g. as between the parties to a bilateral treaty) only the parties are presumed to have rights, including standing to object. But not all legal relations are bilateral and that holds also for responsibility relations. This too is the subject-matter of Part Three on invocation.2
References(p. 567) 2. Cessation, Reparation, Invocation
The consequences of international responsibility must be treated with care. They raise substantial issues as to the character of responsibility and are far from being a mere appendix. While the systems of responsibility developed within municipal legal systems may be helpful by way of analogy, in the sphere of international relations there are important elements, including the rules as to satisfaction, which might seem out of place in the law of tort and contract in common law systems, or in the law of obligations in civil law jurisdictions.
The terminology adopted here largely follows that of the ILC Articles of 2001, with some additions. The term ‘breach of an international obligation’ denotes an unlawful act or omission. ‘Damage’ denotes loss, damnum, usually a financial quantification of physical or economic injury or damage or of other consequences of such a breach. ‘Cessation’ refers to the basic obligation of compliance with international law, which in principle remains due in spite of any breaches. Cessation is required, not as a means of reparation but as an independent obligation, whenever the obligation in question continues to exist. ‘Reparation’ will be used to refer to all measures which may be expected from the responsible state, over and above cessation: it includes restitution, compensation, and satisfaction. ‘Restitution’ refers to restitution in kind, a withdrawal of the wrongful measure or the return of persons or assets seized illegally. While restitution and cessation may sometimes overlap—for example, in the case of release of an individual detained unlawfully—they remain conceptually distinct. ‘Compensation’ will be used to describe reparation in the narrow sense of the payment of money in the measure of the wrong done. The award of compensation sometimes described as ‘moral’ or ‘political’ reparation, terms connected with concepts of ‘moral’ and ‘political’ injury, creates confusion. ‘Injury’ arises from a breach of a legal duty and in such cases the only special feature is the absence of a neat method of quantifying loss. ‘Satisfaction’ refers to means of redressing a wrong other than by restitution or compensation. It may take a variety of forms, including an apology, trial and punishment of the individuals responsible, taking steps to prevent a recurrence of the breach, etc.
Underlying this way of looking at the problem are certain basic propositions about international responsibility (and about states as the primary subjects of responsibility). First, international responsibility is undifferentiated: just as custom and treaty are alternative (and even complementary) ways of generating obligation, so there is no difference in principle between responsibility arising, so to speak, ex contractu or ex delicto.3 For a state party to the UN Convention on the Law of the Sea (UNCLOS), the obligation to allow innocent passage through the territorial sea arises by treaty; for the US as a non-party, it arises under general international law. Materially the obligations (p. 568) are indistinguishable and it would be odd if a wholly different regime of responsibility applied to one as compared with the other.4 Secondly, the regime of responsibility is undifferentiated also in the sense that it applies to the whole array of obligations under international law. There is no a priori limit to the content of international obligations, which can range from rules about navigation of submarines to the protection of the ozone layer.5 In both cases, the primary point of having the rule is to ensure performance; the responsible state is not simply given an option to perform or pay (perhaps unquantifiable) damages. International law fulfils the function both of a public law system regulating shared resources (such as the oceans or the atmosphere) and a private law system covering bilateral (e.g. diplomatic) relations.6
The essential principle contained in the actual notion of an illegal act…is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish 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; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.7
It is a well-established rule of international law that a State which suffers damage as a result of an internationally wrongful act by another State is entitled to obtain reparation for the damage suffered from the State which committed the wrongful act and that ‘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’.8
This is complemented, in the case of injury suffered by nationals, by the rule, enunciated by the Permanent Court in Mavrommatis, that ‘[b]y taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedingsReferences(p. 569) on his behalf, a State is in reality asserting its own rights—its right to ensure, in the person of its subjects, respect for the rules of international law’.9 But there are also cases where states seek to vindicate collective or innominate interests, for example, in the field of human rights or the environment. A different rule, expressed by the International Court in its famous dictum in Barcelona Traction, applies to these cases: ‘[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection’.10 In practice, it may be difficult to apply reparation to interstate cases in which the obligations violated protect a community interest. The principle of full reparation applies generally, but the law has to take account of the entire range of possibilities.11 In many cases claimants will focus on cessation and redress to the individuals affected, or on remediation of environmental harm, without seeking reparation for themselves.12
3. The Forms of Reparation13
(A) Restitution in Kind and Restitutio in Integrum14
To achieve the object of reparation tribunals may give ‘legal restitution’, in the form of a declaration that an offending act of the executive, legislature or judicature is unlawful and without international effect.15 Such action can be classified either as a genuine application of the principle of restitutio in integrum or as an aspect of satisfaction. Restitution in kind is a logical means of repairing an injury. Customary law or treaty may create obligations to which is annexed a power to demand specific restitution. Thus in Chorzów Factory the Permanent Court took the view that, the purpose ofReferences(p. 570) the Geneva Convention of 1922 being to maintain the economic status quo in Polish Upper Silesia, restitution was the ‘natural redress’ for violation of or failure to observe the treaty provisions.16 In imposing obligations on aggressor states to make reparation for the results of illegal occupation, the victims may be justified in requiring restitution of ‘objects of artistic, historical or archaeological value belonging to the cultural heritage of the [retro]ceded territory’.17 It would seem that territorial disputes may also be settled by specific restitution, although the declaratory form of judgments of the International Court often masks the element of restitution.18
Apart from express treaty provisions, restitution in kind, that is, specific restitution, is exceptional; the vast majority of claims conventions and agreements to submit to arbitration provide for the adjudication of pecuniary claims only.19 Writers20 and, from time to time, governments and tribunals21 assert a right to specific restitution, sometimes quoting the Chorzów Factory dictum. The International Court reaffirmed in Pulp Mills that ‘customary international law provides for restitution as one form of reparation for injury, restitution being the re-establishment of the situation which existed before occurrence of the wrongful act’.22 But, while this form of redress has a place in the law, it is difficult to state with any certainty the conditions of its application, outside of cases in which it is provided for explicitly.
In Rainbow Warrior, New Zealand demanded the return to custody of two individuals released from detention by the French government in violation of a previous settlement. The tribunal understood that this was a case of cessation, and not of restitution, and went on to find that cessation could not be granted on the implausible ground that the unfulfilled obligation to detain had expired in the meantime.23
Tribunals should avoid encouraging the purchase of impunity by the payment of damages; specific restitution will be appropriate in certain cases. At the same time,References(p. 571) in many situations it may be clear that a remedy which accommodates the internal competence of governments while giving redress to those adversely affected is to be preferred: restitution is too inflexible. ARSIWA Article 35 includes a proviso whereby restitution is only due if it ‘does not involve a burden out of proportion to the benefit deriving from restitution instead of compensation’. Two examples from the jurisprudence of the International Court illustrate the difficulty. In Arrest Warrant of 11 April 2000(Democratic Republic of the Congo v Belgium), the Court recognized that a mere declaration of unlawfulness under international law would be insufficient, and considered that Belgium was under an obligation to cancel the arrest warrant issued illegal-ly.24 In Avena and Other Mexican Nationals (Mexico v US), however, the Court rejected a request to order the cancellation of the death sentences passed without consular notification or assistance. It merely established that the US was under an obligation to provide means for review and reconsideration of sentences issued in violation of the Vienna Convention on Consular Relations.25 In the latter case, the difficulties faced by the federal executive in the American political system had already generated noncompliance with the provisional measures ordered by the Court.26 These difficulties would only be confirmed in the US Supreme Court decision in Medellín v Texas.27
(B) Compensation, Damages28
Pecuniary compensation is usually an appropriate and often the only remedy for injury caused by an unlawful act. Under ARSIWA Article 36 whenever restitution is not possible compensation becomes the standard consequence for injury, covering ‘any financially assessable damage including loss of profits’. This is consistent with the long-standing jurisprudence of international courts, tribunals, and claims commissions. In its judgment in Gabčíkovo-Nagymaros Project, the Court reaffirmed the ‘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’.29
Applying compensation is straightforward enough in the case of material damages, whether to a state or to its nationals. Starting with the commissions under the 1794 Jay Treaty, claims commissions and arbitral tribunals have been established by treaty toReferences(p. 572) rule on claims and determine the extent of damages following situations of conflict.30 Although the International Court has seldom awarded damages,31 their jurisprudence has served as a basis both for lump sum agreements32 and for awards by other international bodies, such as the Iran–US Claims Tribunal,33 the UN Compensation Commission,34 and the Eritrea–Ethiopia Claims Commission.35 The burgeoning jurisprudence of investment tribunals deals almost exclusively with claims for pecuniary compensation.36
When it comes to quantifying damages, international tribunals face the same problems as other tribunals as regards indirect damage and deal with the issues in much the same way.37 The particular context of and the mode of breach, may determine the approach to damages.38 While problems of causation may present particular theoretical difficulties,39 ARSIWA pragmatically avoids the issue, leaving specific determinations to the particularities of each case. This is consistent with the practice, for, even if tribunals are often obscure in this respect, there is a close connection between ‘remoteness’ and ‘measure of damages’, on the one hand, and substantive rules on the other.
a State initiating a conflict through a breach of the jus ad bellum is liable under international law for a wide range of ensuing consequences, the initiating State will bear extensive liabilityReferences(p. 573) whether or not its actions respect the jus in bello…Imposing extensive liability for conduct that does not violate the jus in bello risks eroding the weight and authority of that law and the incentive to comply with it, to the injury of those it aims to protect.42
Both tribunals seem to have had in mind the need to adjust the amount of compensation in such a way that it fits the wrongful conduct. Outside of the few cases of objective liability,43 it may be that the rule is simply that if harm is caused by wrongful or negligent conduct, whether or not in the course of lawful activity, then compensation is payable. The scale of compensation in cases of lawful activity may be less ambitious than that applicable to activity unlawful at birth, such as unprovoked attacks or unlawful expropriations. In SD Myers, Inc v Canada, the tribunal went to great pains to identify the proportion of the losses suffered by the claimant which were in fact connected with the period in which Canada was in breach of its NAFTA obligations.44
There is some debate as to the possibility of ‘punitive’ or ‘penal’ damages in international law.45 The problem concerns in part the granting of compensation for breach of legal duties without actual damage, for example by unlawful but temporary intrusion into the territory or airspace of another state. The award of compensation in such cases is sometimes described as ‘penal damages’,46 but this is incorrect: their characterization by the ILC as ‘moral damages’ is more accurate.47 Fitzmaurice expressed the view that any breach of treaty entails the payment of ‘some damages…irrespective of whether the breach has caused any actual material damage or pecuniary loss’.48 However, tribunals are cautious in approaching cases of non-material loss, and there is no simple solution to the problem of valuation of such losses.
In Janes the US presented a claim based on a failure by Mexico to take adequate steps to apprehend the murderer of an American citizen.49 The award approached compensation in terms of the damage caused to the individuals concerned rather than to the US,50 and gave compensation to the relatives of Janes for the ‘indignity’ caused by the non-punishment of the criminal.51 However, the US was only claiming ‘on behalf of ’ Janes’ dependants, and the only concern of the Claims Commission was one of valuation rather than ascription. Although the practice of awarding ‘nominal’ or ‘token’ damages was once common,52 violations of national honour or dignity will nowadaysReferences(p. 574) often be dealt with by satisfaction, agreed with the responsible state or awarded by a tribunal in the form of a declaratory judgment.53
Satisfaction may be defined as any measure which the responsible state is bound to take under customary law or under an agreement by the parties to a dispute, apart from restitution or compensation. Satisfaction is an aspect of reparation in the broad sense. However, it is not easy to distinguish between pecuniary satisfaction and compensation in the case of breaches of duty not resulting in death, personal injuries, or damage to or loss of property. Claims of this sort are commonly expressed as a claim for an ‘indemnity’, which may create confusion. If there is a distinction between this and a claim for compensation, it would seem to be in the intention behind the demand. If it is predominantly that of seeking a token of regret and acknowledgement of wrongdoing then it is a matter of satisfaction.
References(p. 575) that the United States ought formally to acknowledge its illegality, and to apologize to His Majesty’s Canadian Government therefor; and, further, that as a material amend in respect of the wrong the United States should pay the sum of $25,000 to His Majesty’s Canadian Government…57
This approach was taken up by the Secretary-General in his ruling on the Rainbow Warrior affair. The vessel destroyed belonged to Greenpeace, a Dutch NGO, but its destruction by French agents in the port of Auckland was a violation of New Zealand’s sovereignty. Besides ordering compensation, the Secretary-General ruled ‘that the Prime Minister of France should convey to the Prime Minister of New Zealand a formal and unqualified apology for the attack, contrary to international law, on the Rainbow Warrior by French service agents’.58 New Zealand also demanded that the two agents responsible, who had been imprisoned after trial in New Zealand, be kept in custody if returned to France. The Secretary-General ruled that these agents ‘should be transferred to a French military facility on an isolated island outside of Europe for a period of three years…[and] prohibited from leaving the island for any reason, except with the mutual consent of the two Governments’.59
Thus various modalities of satisfaction continue to be used in modern state practice, and this is reflected in ARSIWA Article 37 and its commentary.
A number of ancillary questions remain. It is sometimes suggested that an affront to the honour of a state or intention to harm are preconditions for a demand for satisfaction, but this is very doubtful. Such elements may enter into the assessment of compensation, as also may the failure to undertake measures to prevent a recurrence of the harm or to punish those responsible. Measures demanded by way of apology should today take forms which are not humiliating and excessive.60 There is no evidence of a rule that satisfaction is alternative to and, on being given, exclusive of a right to compensation for the breach (parties to a dispute may, of course, agree otherwise).
(ii) Declaratory judgments61
In some cases a declaration by a court as to the illegality of the act of the defendant state constitutes a measure of satisfaction (or reparation in the broad sense). However, international tribunals may give a declaratory judgment in cases where this is the appropriate and constructive method of dealing with a dispute and the object is notReferences(p. 576) primarily to give ‘satisfaction’ for a wrong received.62 While the International Court is unwilling to deal with hypothetical issues and questions formulated in the abstract, the Permanent Court already established the practice of giving declaratory judgments,63 and in some cases, for example those concerning title to territory, it found it appropriate to give a declaratory rather than an executory form to the judgment.64 The applicant states in South West Africa were seeking a declaration that certain legislation affecting the territory was contrary to the obligations of South Africa under the Mandate.65 In the US Diplomatic and Consular Staff in Tehran, the Court’s judgment included several declaratory prescriptions concerning the termination of the unlawful detention of the persons concerned.66 In Nicaragua the judgment contained an injunctive declaration ‘that the United States is under a duty immediately to cease and refrain from all such acts as may constitute breaches of the foregoing legal obligations’.67
Sometimes it is difficult to separate neatly satisfaction through declaratory judgments from the Court’s regular adjudicative function. In Corfu Channel, the International Court declared that the mine-sweeping operation by the Royal Navy in Albania’s territorial waters was a violation of sovereignty, and then stated: ‘[t]his declaration is in accordance with the request made by Albania through her Counsel, and is in itself appropriate satisfaction’.68 In spite of the terminology, this is not an instance of satisfaction in the usual meaning of the word: the declaration is that of a court and not a party, and is alternative to compensation.
In Corfu Channel, no pecuniary compensation had been asked for by Albania, and a judicial declaration was therefore the only means of giving an effective decision on this aspect of the matter.69 But in M/V Saiga (No 2), compensation was effectively sought. Saint Vincent and the Grenadines claimed damages not only for injury to the vessel flying its flag and its crew, but also for breach of its rights as the flag state. The tribunal, however, preferred to award damages for the former injuries, while considering that for the latter the declaration of illegality constituted adequate reparation.70
declare[d] that the condemnation of the French Republic for its breaches of its treaty obligations to New Zealand, made public by the decision of the Tribunal, constitutes in the circumstances appropriate satisfaction for the legal and moral damage caused to New Zealand…71
In Genocide (Bosnia and Herzegovina v Serbia and Montenegro), three findings of violations were considered to ‘constitute appropriate satisfaction’ to Bosnia and Herzegovina, since ‘the case [was] not one in which an order for payment of compensation, or…a direction to provide assurances and guarantees of non-repetition, would be appropriate’.72 In these cases, the declaratory judgment would seem to be a way for the Court to provide to the injured party a form of satisfaction which does not depend on any action by the violator, when another type of reparation could risk reigniting or aggravating a conflict.
Whenever compensation for a violation is due, the question arises whether interest should be paid, at what rate, and from which date. This is particularly relevant in cases where compensation is determined by adjudication, since exhausting local remedies, going through the adjudication process and obtaining the compensation may take considerable time. The right to award interest as part of compensation has been assumed by international tribunals in early decisions,74 although in many cases interest was refused in the circumstances of the case.75 More recent tribunals have been more willing to award interest including compound interest.76
Rates vary widely: sometimes a rate is agreed upon by contract or treaty; at other times tribunals will apply private international law rules and select a national rate; other options include applying general principles of international law or simply principles of fairness and reasonableness.77 As for the date from which interest starts running, tribunals are not consistent either: it may be the date when the obligation became due and owing, the date of the violation or the date damages are awarded. Again, much depends on the circumstances: tribunals will often try to find a formula that isReferences(p. 578) not excessively punitive—although thereby running the risk of under-compensation and of rewarding delay in payment.78
Although international rules may cover any topic, not all rules have the same salience. The debate on a hierarchy of norms is vast,79 but few today would question the notion of obligations erga omnes. The International Court has noted that the obligations relating to the prevention and punishment of genocide,80requiring respect for the right to self-determination,81 as well as relevant obligations determined by international humanitarian law,82 constitute obligations of this kind. Likewise, peremptory norms have been a component of the international legal system since the 1969 Vienna Convention on the Law of Treaties (VCLT)83 (although the International Court only dared to speak their name for the first time in 2006).84 The existence of this superior normative rank entails the question of whether violations of these rules, and especially ‘gross’ violations of particularly important rules, warrant a different regime of responsibility than that which corresponds to other internationally wrongful acts. This was answered in the affirmative in the 1976 version of the Draft Articles on State Responsibility, adopted by the ILC following the proposals of Special Rapporteur Roberto Ago. Its Article 19(2) provided that ‘the breach of an obligation so essential for the protection of fundamental interests of the international community’ should be considered to constitute ‘an international crime’.85
Ago never proposed any consequences to the aggravated responsibility regime, and it is not even clear that all ‘crimes of state’ would in his view have entailed a single, uniform set of consequences.86 His initial statement on the issue of the aggravated regime was as follows: ‘the responsibility flowing from the breach of those [erga omnes] obligations is entailed not only with regard to the State that has been the direct victim of the breach…it is also entailed with regard to all other members of the international community’.87 This is certainly relevant to assess entitlement to invoke responsibilityReferences(p. 579) (see below), and has been retained in ARSIWA in the form of Article 48; but problems appear regarding the precise object of this responsibility.
The notion that violations of these obligations would constitute ‘crimes of state’ for a long time generated heated debate, both within the ILC88 and in the literature89 before being pragmatically abandoned by the Special Rapporteur in favour of the notion of ‘serious breaches of obligations under peremptory norms of general international law’.90 The commentary quotes the 1946 International Military Tribunal, which affirmed that ‘crimes against international law are committed by men, not by abstract entities’.91 For all the symbolic overtones lost in this change of terminology, it has settled the issue to which norms the special regime applies: they are the same as those accorded peremptory status under VCLT Articles 53 and 64.92
On closer examination, ARSIWA Articles 40 and 41 provide not so much a regime of aggravated consequences as one of additional consequences. These affect in particular the legal status of situations deriving from the wrongfulness. ARSIWA Article 41 provides three such consequences. First, all states are to co-operate through lawful means to bring an end to the violation. Second, all states must refrain from recognizing as lawful the situation created thereby. Third, no state may aid or assist the wrongdoer in maintaining the unlawful situation. No punishment of the state responsible for the grave breaches is envisaged by the Articles.
Other consequences remain de lege ferenda, and have seen only sparse practice. A proposed reaction to particularly grave breaches, following the lead of Special Rapporteur Arangio-Ruiz, is the possibility of the award of punitive damages.93 But it is far from clear that the concept has any place in international law, and the case-law certainly does not warrant a general conclusion that it does.94 In the face of grave breaches in the fields of human rights and armed conflict, courts and tribunals have refused to award penal damages. The Inter-American Court has held that ‘although some domestic courts…award damages in amounts meant to deter or to serve as an example, this principle is not applicable in international law at this time’.95 The European Court of Human Rights often observes that it ‘does not award aggravated or punitive damages’.96 The Eritrea–Ethiopia Claims Commission reduced the potentialReferences(p. 580) damages it could have awarded for the violation of ius ad bellum by Eritrea, arguing that ‘[t]he Parties’ limited economic capacity is relevant in determining damages claims’, and explaining that ‘[c]ompensation has a limited role which is remedial, not punitive’.97 The consequences that flow from particularly grave violations are thus not qualitatively different from those that flow from a breach of any customary or conventional rule. The distinctive regime of responsibility that exists for grave violations does not affect reparation, but finds its main effects in the possibilities open to non-injured states of demanding cessation and responding to illegality.