Anthony Aust. Handbook of International Law

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impossible’ or ‘does not involve a burden out of all proportion to the benefit deriving from

restitution instead of compensation’ (Article 35). The release of a detainee, the return of property or

the repeal of legislation are simple examples.

Restitution is the re-establishment of the status quo

ante only, any further damage being a matter for compensation. Restitution will not be required if

property has been lost or destroyed or has become valueless, but mere legal or practical difficulties

to restitution are generally no excuse. Third party rights may have to be taken into account if, for

instance, illegally seized property has since been acquired in good faith by a third party.

Compensation

Not surprisingly, compensation is the most common form of reparation, either alone or together with

restitution or satisfaction, or both. The responsible state is under an obligation to compensate for

damage caused by its wrongful act insofar as it has not been made good by restitution (Article 36).

This includes damage suffered by the state itself, its property and personnel, and damage suffered by

the state’s nationals, whether natural or legal persons.

Compensation also covers any ‘financially

assessable’ damage, including loss of profits insofar as that can be established. Although Article 31

defines damage as including ‘moral’ damage, the term ‘financially assessable’ excludes

compensation for moral damage to a state, for which it has to be content with satisfaction.

Compensation can be awarded for damage to the environment of a state, such as by pollution.

Compensation is for actual loss: unlike some domestic laws, international law has no settled

concept of penal or exemplary compensation.

How the amount of compensation is assessed will

depend on the content of the relevant primary rules and the behaviour of the states concerned, the

aim being to reach an equitable and acceptable outcome.

The valuation of capital is a particular

problem.

Expropriation of assets gives rise to special difficulties.

53. For more specific examples, see the Commentary on Article 35, para. (5).

54. See p. 182 above.

55. See p. 344 above.

56. See Article 41 below; Oppenheim, p. 533; and Crawford, The International Law Commission’s Articles

on State Responsibility, Cambridge, 2002, p. 36.

57. See the ILC Commentary on Article 36, paras. (7) to (34).

58. Ibid., paras. (22) to (34).

59. Ibid., para. (20), n. 582; and pp. 185-7 above.

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An international court or tribunal can award compensation even if it is not specifically claimed.

An arbitration tribunal may already be provided for by a treaty

or established ad hoc.

Compensation can of course be agreed as part of a settlement, often on a without prejudice or ex

gratia basis.

Satisfaction

Insofar as an injury cannot be made good by restitution or compensation, the responsible state must

give satisfaction. This may be an acknowledgment of the breach, an expression of regret, a formal

apology or ‘another appropriate modality’. Satisfaction must not be out of proportion to the injury or

be humiliating (Article 37). An injured state cannot insist on satisfaction if full reparation can be

given by other means. Normally, moral damage can be remedied by compensation, so only an injury

that is not financially assessable can be made good by satisfaction. Such injuries would have to

amount to an affront or other non-material injury to a state, and are often of a symbolic character

arising from the very fact of the breach. Examples include insults to state symbols like the flag,

violations of sovereignty, or ill-treatment of ministers or diplomats. The form of satisfaction will

depend on the circumstances. It may consist in the taking of disciplinary or criminal proceedings or

in paying symbolic damages. An apology, verbal or written, is common and can be required by an

international court or tribunal or be made voluntarily.

Interest

Interest is payable on the principal sum of any compensation ‘when this is necessary to ensure full

reparation’, the rate and the method of calculation being set so as to achieve that result. Interest runs

from when the compensation ‘should have been paid’ (Article 38). If compensation is assessed as at

the date of the injury, interest will generally run from then. Alternatively, it may run from the date of

the claim, the award or the settlement. There is no established rule or practice, the matter being left

to courts and tribunals to decide in the light of all the circumstances. The award of interest is not

automatic, but payment of interest is now normal. It can be awarded by an international court or

tribunal (which, unless

60. The Factory at Chorzów, 1927, 4 AD 258.

61. See Chapter 21 below.

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there are express provisions to the contrary, have an inherent power to do so), or be agreed as part of

a settlement. Traditionally, compound interest has not been awarded unless there were special

circumstances,

although this might change.

Interest is not usually included where compensation

for loss of profits is awarded.

Contribution to the injury

In determining reparation, account must be taken of any contribution to the injury by a wilful or

negligent act of the injured state, or by any person or entity in relation to whom reparation is sought

(Article 39). This reflects a common, basic principle of domestic law.

Serious breaches of obligations under peremptory norms of general international law

Articles 40 and 41 concern the international responsibility of a state for a ‘serious’ breach of an

obligation arising under a peremptory norm of general international law (jus cogens).

To be

‘serious’, the breach must involve a ‘gross or systematic’ failure to fulfil the obligation. The

particular consequences are, first, states must cooperate to bring, through lawful means, the serious

breach to an end, irrespective of whether or not an individual state is actually affected by the breach.

(Unlike most of the provisions of the Articles, this particular requirement almost certainly represents

progressive development.) Secondly, states must not recognise as lawful a situation created by a

serious breach, nor give aid or assistance to maintain that situation.

Thirdly, a serious breach will

have all the consequences of an internationally wrongful act and to such further consequences that

the breach may entail under international law, and,

62. Compañía des Desarrollo de Santa Elena SA v. Republic of Costa Rica, ICSID Case No. ARB/95/1,

February 2000, paras. 103–5; ILM (2000) 1317 or www.worldbank.org/icsid/.

63. See F. Mann, ‘Compound Interest as an Item of Damage in International Law’, in F. Mann, Further

Studies in International Law, Oxford, 1990, p. 377, at p. 383.

64. For references to examples, see the Commentary, para. (4), n. 658.

65. See p. 11 above and the discussion above of Article 26, p. 417.

66. See UNSC Res. 662 (1990) regarding the purported annexation of Kuwait. In its the Legal

Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, ICJ

Reports (2004), paras. 154–60; ILM (2004) 1009, the ICJ appears, somewhat rashly, to have endorsed draft

Article 41 and adopted its wording, even though the matter had not been thoroughly argued in the written

or oral submissions.

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possibly, punitive damages. All states are entitled to invoke the responsibility of a state for breaches

of such obligations (Article 48).

The implementation of the international responsibility of a state

Invocation of responsibility by an injured state

Article 42 defines the injured state entitled to invoke the responsibility of another state by reference

to which the obligation is owed.

First, it is owed to a state to which the obligation is owed

individually. This is the most usual situation, and it would arise in the case of breach of a bilateral

treaty. Secondly, it is owed to one of a group of states, or the international community as a whole,

but the breach affects a state ‘specially’. The group may be all the parties to a multilateral treaty, but

only one or some are affected by the breach by another party. Thirdly, it is owed to all states of the

group, or of the international community, when the breach is ‘of such a character as radically to

change the position of all other states to which the obligation is owed’. This is likely to apply to

breach of a disarmament treaty or of a plurilateral treaty,

if the breach affects them all. Invocation

of responsibility by a state, other than the injured state, acting in the collective interest is dealt with

by Article 48 (see above).

Notice of claim by an injured state (Article 43)

Although state responsibility arises without any need for the injured state to invoke it, in practice an

injured state has to give notice to the responsible state of its claim. No special form is required, but a

protest is insufficient. A formal notice of claim must be made either to the responsible state or to an

international court or tribunal. Since the injured state can only require the responsible state to

comply with its obligations, it cannot stipulate what the responsible state must do. But it may specify

the conduct that the state should take in order to cease the wrongful act, if it is continuing, and what

form reparation should take. The form in which the claim should be presented is not specified,

although in practice it should be written, and if it is made to an international court or tribunal it must

conform to its rules and practice.

67. Based on Article 60(2) of the Vienna Convention on the Law of Treaties 1969.

68. See p. 71 above.

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Admissibility of claims

Article 44 restates two fundamental rules that a state may not invoke the responsibility of another

state in respect of injury to its nationals if the claim (a) does not satisfy the nationality of claims

rule

or (b) is one to which the rule of the exhaustion of local remedies applies,

and any available

and effective local remedy has not been exhausted.

Loss of right to invoke responsibility

An injured state cannot invoke state responsibility if it (a) has validly waived any claim or (b) is to

be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim

(Article 45). Waiver must be clear and unequivocal. An unreasonable delay in puruing the claim

could amount to acquiescence. This will depend on all the circumstances, including whether the

responsible state has been severely disadvantaged. This is more likely if the original notification of

the claim was unduly delayed, rather than if there was merely a leisurely prosecution of the claim.

Plurality of injured or responsible states

Where several states are injured by the same internationally wrongful act (see Article 42(b)), each

injured state may separately invoke the responsibility of the responsible state (Article 46). Where

several states are responsible for the same internationally wrongful act (by a joint operation, acting

through a common organ, or one or more acting under the direction and control of another), the

separate responsibility of each state may be invoked for conduct attributable to it. But this does not

permit an injured state to recover more compensation than the damage it suffered, and is without

prejudice to any right of recourse by a responsible state against the other responsible states for a

contribution (Article 47). Whether each will be liable for the whole damage (so-called joint and

several liability) or for a proportion will depend on all the circumstances.

69. See p. 441 below.

70. See pp. 441-2 below.

71. See Certain Phosphate Lands in Nauru, ICJ Reports (1992), p. 240, paras. 48 and 56; 97 ILR 1. The

case was settled (ICJ Reports (1993), p. 322) on terms whereby Australia met the claim and New Zealand

and the UK contributed (1770 UNTS 379 (No. 30807)).

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Countermeasures

The ability to take countermeasures is a most important means by which a state can respond

effectively to breaches of its international rights rather than relying solely on methods of peaceful

settlement. Even if such methods are readily available, they may take years to produce a result (an

international interim measure of protection (injunction) not being that easy to get or to enforce),

and compensation (even if full and paid promptly) often not being a real substitute for performance

of the broken obligation. Given that enforcement of international law is not done within a legal

system with a hierarchy of courts supported by sophisticated enforcement mechanisms, a state

sometimes has to resort to such self-help measures to protect effectively its rights and those of its

nationals. The right to take countermeasures is well established. But by taking them a state takes the

risk that the action of the other state may be held to be lawful, thereby making the countermeasures

themselves unlawful.

Countermeasures must be distinguished from reprisals (a term now properly used only in the

context of the law of armed conflict),

retorsion (a response not involving any breach),

sanctions,

as generally understood,

or suspension or termination of a treaty.

Countermeasures consist in the injured state not performing certain of its international obligations

towards the responsible state, but only for the purpose of inducing the responsible state to cease

acting wrongfully and make full reparation (Article 49). Lawful countermeasures are not wrongful

(Article 22). The issue of countermeasures normally arises in a bilateral context. The classic

example involves obligations under a treaty, especially an air services agreement.

The agreement

between Ruritania and Freedonia allows one airline of each state to operate a daily return flight

between the two capitals using jumbo jets. Ruritania Air decides to fly with a smaller aircraft, but

Freedonia Air continues to fly jumbos. Although that is Freedonia Air’s right under the agreement,

Ruritania Air asks its government to deny Freedonia Air permission to land jumbos, and the

Ruritanian Government does so. Rightly incensed, Freedonia Air asks its government to deny

Ruritania Air permission to land more than

72. See O. Elagab, The Legality of Non-Forcible Counter-Measures in International Law, Oxford, 1998.

73. See p. 459 below.

74. See p. 257 above.

75. See Shaw, pp. 1022–3.

76. See p. 217 above.

77. See p. 349 above.

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three times a week until the Ruritanian Government withdraws its action, and the Freedonia

Government does so.

That is a counter measure.

Objects and limits of countermeasures

Article 49(1) emphasises that countermeasures are exceptional and limited; in particular they must

be necessary and not a punishment. Countermeasures do not have to be reciprocal, in the sense of

being limited to suspension of the performance of the same or a closely related obligation. In the

above example, Freedonia cannot reply precisely in kind, although the countermeasure is directly

related to an obligation under the air services agreement. Sometimes taking countermeasures in an

unrelated field of activity may be unavoidable. A state cannot respond by breaching certain

sacrosanct obligations (see below). As with other Articles, the rules on countermeasures are

residual.

Occasionally, a treaty may prohibit countermeasures, or require their prior

authorisation.

Countermeasures must cease once they have had the desired effect (Article 49(2))

and must, as far as possible, be taken in such a way as to permit the resumption of performance of

the responsible state’s obligations, i.e. be reversible (Article 49(3)).

Proportionality

Countermeasures must be ‘commensurate with’ (proportionate to) the injury suffered, taking into

account ‘the gravity of the wrongful act’ and ‘the rights in question’ (being those of both states)

(Article 51). Proportionality is an essential requirement. If the countermeasures are excessive, the

injured state will itself have committed an internationally wrongful act. In many cases, there will be

no exact equivalence between the acts of the responsible state and the countermeasures. But the

more closely countermeasures are related to the breach, the more likely they are to be proportionate.

It will usually be sufficient if there is a rough approximation. So, the suspension by the United States

of all Air France flights between Paris and Los Angeles, in response to France’s refusal to allow US

airlines flying between Los Angeles and Paris to change to smaller aircraft for the section between

London and Paris, was held to be not ‘clearly

78. For air services examples, see Air Services Agreement of 27 March 1946 (US v. France), (1963) 38

ILR 182 and (1978) 54 ILR 303. See also US v. Italy (1965) 45 ILR 393.

79. On Article 55, see p. 409 above.

80. See p. 386 above.