UPDATE: See below for answers to my trivia question asking for cases where compensation was awarded by an international tribunal to one State for violation by another State of international law other than cases of diplomatic protection.
This week, the International Court of Justice decided that the Democratic Republic of Congo is obliged to pay $95,000 to the Republic of Guinea for material and non-material injury arising out of the DRC’s violations of the human rights of a national of Guinea. The case was an old fashioned case of diplomatic protection brought by one State in respect of violations of international law committed towards its nationals by another State. The ICJ decided the case on the merits in 2010 and held that while DRC had violated the rights of Mr Diallo under the International Covenant on Civil and Political Rights and under the African Charter of Human Rights. In 2007, the Court rejected the admissibility of claims brought by Guinea on behalf of companies/firms in which Mr Diallo had an interest. I have a comment about this recent judgment and will then pose a couple of question to readers. The questions will form part of what I hope will be a regular series of trivia questions about international law on the blog. I will have more to say about that series in a future post. For now, let me say that we have a prize on offer to induce you to take part in answering the questions.
In it’s commentary to Art. 36 of the Articles on State Responsibility (which deals with compensation), the International Law Commission noted that: “Of the various forms of reparation, compensation is perhaps the most commonly sought in international practice.” (p. 99, para. 2) However, it is interesting to note that this is not so in the practice of ICJ cases. There, it is the declaration of non-compliance that is often sought. I am not sure why this is so.
The ICJ’s judgment of this week is only the second time that the Court has decided on the amount of compensation owed by a State to another with respect to violations of international law found by the Court. The only previous case in which the Court has done this was the ICJ’s first contentious case – The Corfu Channel Case (United Kingdom v. Albania), (1949). Sometimes, parties will reserve the right to ask the Court for compensation but then fail to do so. In the late 1980s, Nicaragua was poised to pursue its compensation claim after its successful case against the US with regard to Military and Paramilitary Activities in and Against Nicaragua. In fact, Nicaragua had filed its memorial on compensation in which it claimed billions of US dollars, and the Court had written to Nicaragua to say it was minded to fix oral hearings on compensation for October 1990. However, in 1990 there was a change of government in Nicaragua which led to a decision to drop the compensation claim. Last year, Nicaraguan President Daniel Ortega who was President at the time of the acts in the 1980s and reelected in 2006 proposed a referendum on whether Nicaragua ought to revive the compensation claim.
ICJ cases are, of course, inter-State cases. In tribunals dealing with mixed claims, i.e claims by individuals or corporations against a State, compensation is often sought and awarded. This is true both with regard to human rights claims and investment treaty arbitration. As the Diallo case was a case of diplomatic protection (a rare recent example) it is comparable to the mixed claims where the seeking and granting of compensation is rather common. Indeed, there are many instances of States seeking and being awarded compensation in cases of diplomatic protection. In the past few decades, examples would include the work of the Iran-United States Claims Tribunal.
Comments by readers as to why States rarely seek compensation in inter-State case, which do not involve diplomatic protection would be welcome. I also have a more specific question for readers. In the last 30 years (an arbitrary cut off date), have there been any awards of compensation by international tribunals in inter-State cases where the award of compensation was for a direct injury to the State arising from a violation of international law? To clarify, I am asking for cases where compensation was awarded by an international tribunal to one State for violation by another State of international law other than cases of diplomatic protection. So, a case like the Diallo case would not count?
UPDATE: Many thanks to Kubo and Conor for those excellent answers below. The examples they give are indeed the most prominent examples of cases where an international tribunal awarded compensation in an inter-State case outside the diplomatic protection context. I think the Eritrea -Ethiopia Claims Commission is the most recent example.As the Corfu Channel was the ICJ’s first contentious case, the The MV Saiga case was ITLOS’s first substantive case. I had the pleasure of working on the case with Richard Plender (now Sir Richard and Judge in the English High Court) who was Deputy Agent and Counsel for the applicant in that case. As with the Corfu Channel case, the losing side did not comply wiht the order for compensation immediately. ITLoS has not had occasion to decide on compensation since then.
Another tribunal that might be thought to have awarded compensation in inter-State cases outside the context of diplomatic protection is the Iran-US Claims Tribunal. However, that tribunal was called upon, in the inter-State context, to deal with breaches of contract rather than violations of international law.
Conor points to the UN Sec Gen’s decision in the first Rainbow Warrior arbitration and Kubo questions whether the SG was acting in a judicial capacity. This is a good point. In one sense the SG did act as arbitrator as the parties conferred on him the power to make a binding ruling. However, the SG was not obliged to decide on the basis of law thus suggesting that this should not be regarded as arbitration proper.
The other international “tribunal” that has awarded compensation in inter-State cases in recent years is the United Nations Compensation Commission (UNCC). The UNCC was established by the UN Security Council 687 of 1991 to implement the SC’s decision that Iraq was liable under international law for “for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait;” (para 16). UNCC awarded compensation of over $50 billion (yes billion!). Most of the claims were claims by corporations and individuals. But so called “Category F” claims were claims by States (and international organizations). UNCC awarded over $10 billion dollars of compensation for direct injury to States arising out of the Iraqi invasion. The bulk of the compensation in that category was awarded for damage to the environment.
The question is whether UNCC should be regarded as an international tribunal for our purposes. In the UN Secretary-General’s report proposing the creation of the Commission, the SG stated that:
“the Commission is not a court or an arbitral tribunal before which the parties appear; it is a political organ that performs an essentially fact-finding function of examining claims, verifying their validity, evaluating losses, assessing payments and resolving disputed claims; it is only in this last respect that a quasi-judicial function may be involved.”
I don’t think the European Court of Human Rights has awarded compensation in any of its inter-State cases but I think (though I’m not sure) that proceedings are pending on a just satisfaction (i.e compensation) claim arising out of the Cyprus v. Turkey inter-state cases. Does any reader know what has happened to those proceedings.