Award of Compensation by International Tribunals in Inter-State Cases: ICJ Decision in the Diallo Case – UPDATED

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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.

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    Conor McCarthy says

    June 21, 2012

    Hi Dapo,

    Very interesting post.

    The big recent example is, of course, Eritrea-Ethiopa Claims Commission, many of the awards of which were made on an interstate basis, rather than claims made in exercise of the right of diplomatic protection (however, some were made on the latter basis). These awards do, however, illustrate the difficulty that can exist in practice in assessing and quantifying claims made on a strict inter state basis and those which were (or could have been) made under the guise of a claim in diplomatic protection. (see e.g. paragraph 25, Final Award, Eritrea's damages claim).

    On the arbitral front a number of examples spring to mind, for instance, New Zealand v. France (Rainbow Warrior I) (where the UN SG awarded compensation to NZ in respect of a range of harm that NZ has suffered as a direct result of the internationally wrongful acts in question.

    Kubo Macak says

    June 21, 2012

    Hi Dapo,

    In 1999, the International Tribunal for the Law of the Sea (ITLOS) held Guinea responsible for the violation of the rights of Saint Vincent and the Grenadines under the UNCLOS by stopping and arresting a Vincentian ship named Saiga and detaining its crew. For this violation, the ITLOS ruled that Guinea pay compensation in the sum exceeding $2 million.

    I think this, the so-called M/V “SAIGA” (No. 2) case, meets the criteria in your question a bit better that the previous submission, as the ITLOS fits better the general understanding of an ‘international tribunal’ (for example, under Prof. Tomuschat’s definition, a permanent judicial body established by an international legal instrument, utilizing pre-existing rules of procedure and rendering binding decisions based on int’l law) than the Ethiopia-Eritrea Claims Commission or, indeed, the UN Secretary General.

    All the best,
    Kubo

    Kubo Macak says

    June 21, 2012

    P.S.: One of the reasons why States do not seek pecuniary restitution could be that their disputes often do not primarily revolve around issues of damage caused (justifying an 'ex post' perspective oriented at the achievement of a financial compensation). Instead, the States may be motivated by the desire to elucidate rules of international law and shape the conduct of other subjects (thus looking at the situation from an 'ex ante' perspective). A good example of this latter perspective at play, and one expressly stated, is the German position in the LaGrand case. There, Germany stated that its aim
    in bringing the case before the ICJ was "to ensure that German nationals will be provided with adequate consular assistance
    in the future, and not to receive material reparation." (See German Memorial in the case, available at http://www3.icj-cij.org/docket/files/104/8552.pdf, para. 6.24.)

    P.P.S.: Now, on a second thought, I am wondering whether I should not have added a few words why I didn't consider the Saiga (No. 2) case as a diplomatic protection case. After all, the case dealt with, inter alia, the damage sustained by the shipowner and the ship crew. However, perhaps it's sufficient to cite para. 98 of the judgment in this connection: "None of the violations of rights claimed by Saint Vincent and the Grenadines [...] can be described as breaches of obligations concerning the treatment to be accorded to aliens. They are all direct violations of the rights of Saint Vincent and the Grenadines. Damage to the persons involved in the operation of the ship arises from those violations." (emphasis added).

    Pierre d'Argent says

    June 22, 2012

    Hi Dapo,

    As I served as First Secretary of the ICJ at the time of the 2010 Diallo Judgment, I should probably abstain from making any comments on this recent compensation Judgment, but just a few points:

    1. This is actually the first time the Court had to come up with an amount of compensation. In Corfu, the UK submitted a claim and Albania refused to appear at the compensation stage since it had contested the jurisdiction of the Court to rule on compensation (not on responsibility) on the basis of the Special Agreement. The Court had to apply Article 53, para. 2, of the Statute and just checked through an expert opinion if the amounts claimed by the UK were "well founded in fact and law" or not. The Court did not have to make an evaluation by its own.

    2. The compensation awarded is $95000 in total, the moral damage awarded being $85000. This amount is for the moral damage resulting from a total of 72 days of illegal detention and illegal expulsion. The Court did not found that Mr. Diallo had been badly treated in jail. $85000 for 72 days : this makes $1180 per day. Quite an astonishing amount compared to any previous international judgment or any domestic standard of compensation for similar wrongs. Certainly lightyears away from local or regional standards. Judge Greenwood makes the point very clearly in his declaration and his concern is to be shared.

    3. In my humble opinion, even if you can always argue that the specific circumstances of a case explain the result, assessing moral damages is a matter of social justice. If all human beings are born equal in dignity and rights, they must all be considered to suffer similarly from similar wrongs committed in similar circumstances. This is the principled approach of domestic courts. Of course, the nature of the wrongful act, the circumstances in which it occured and the situation of the victim are to be taken into account all together. And, of course, equity cannot be totally avoided when computing moral damages. But I confess to fail to see the equitable character of a decision that, simply, cannot be generalized.

    Best,

    Pierre d'Argent

    Dapo Akande says

    June 23, 2012

    Dear Pierre,

    Thanks for this comment. Very informative

    Max says

    June 23, 2012

    With due regard to Professor d'Argent's experience and status, it is apt to note:

    - the per diem calculation is not, strictly, sound: compensation calculation is not concerned solely with detention but also with wrongful accusations, expulsion following a long period of residence and a finding that expulsion occurred to prevent pursuit of litigation, as well as delay: see [21]-[23]; and

    - while compensation quanta vary widely, the suggestion that it is "an astonishing amount compared to any previous international judgment or any domestic standard of compensation" is at least somewhat sweeping, if not just wrong. The recent (2010) UK Muuse case, for example, awarded L27,500 (c US45,000) following false imprisonment alone of 128 days, while Australian false imprisonment caselaw involving immigration has amounted to up to A$8000 (c US8500) per day in aggravated cases. While it is correct that ECtHR awards for non-pecuniary loss are lower, and similar awards have generally been made only in egregious cases, it is a mistake to treat that court's practice as dispositive of the bounds of state liability.

    Conor McCarthy says

    June 23, 2012

    Its a fair point regarding France v. New Zealand (Rainbow Warrior I), perhaps not an arbitration in the strict sense depending on how that term is defined (although it is reported in the UN's "Reports of International Arbitral Awards" (e.g Case concerning the differences between New Zealand and France arising from the Rainbow Warrior affair v. New Zealand 199 RIAA XIX (1986). Although both parties agreed to submit the dispute to the SG for a binding ruling, as you indicate they did not, it seems, in terms specify in their parallel communiques conferring competence on the SG that the dispute was to be resolved through application of international law per se.

    That said, in the event, the dispute was resolved by submissions by each party on points of fact and submissions as to the application of international law to those facts and, the SG made his binding determination in light of these submissions, including by reference to international law. For its part, France conceded that it had violated international law and that NZ was, as a result, entitled to reparation for harm caused directly to it as a result of the wrongful acts in question. The issue for the SG was, in the main, as to the form which reparation should take and the quantum of compensation required, taking into account the submissions of the parties as to loss suffered. New Zealand, for instance, sought compensation for the costs of the criminal investigation into the incident which had been considerable as they involved numerous public agencies. Dealing with the quantum of compensation owed to NZ for violation of international law the SG awarded 7 million USD to NZ in his binding determination "for all the damage it has suffered". So, although the manner in which the SG was to exercise his competence over the dispute perhaps wasn't entirely clear at the outset, the SG's ruling in the end was made on submissions of fact and international law by the parties. I think Dapo, your entirely right that there seems to be an interesting dearth in practice regarding interstate compensation awards, the reasons for which are not entirely clear. I do think, though, that the Rainbow Warrior I decision, notwithstanding its peculiarities, is a countervailing example of practice in this area.

    Have a great weekend.

    Conor

    Pierre d'Argent says

    June 25, 2012

    Thanks 'Max' (?).
    As you rightly point out, aggravated cases may justify more money and 128 days is nearly twice the time for nearly half the amount... I have not suggested that Strasbourg standards should be decisive, neither that compensation should only be based on a per diem evaluation in cases of detention. But, as it is the case for any continuous breach, the duration of the wrongful act is of course constitutive of the (moral) damage and cannot be ignored for compensation purposes. In this case, there were two continuous breaches (detentions) and one instantaneous breach (expulsion). Each of those violations created the moral damage as a whole, expulsion being in this case of particular relevance as its illegality made the detention arbitrary and suddenly deprived Mr Diallo of social ties built over a long period of time. Maybe all this is a matter of perception (generosity?), and of collective perception by a collective body like the Court, and there is little sense in arguing about amounts. By being very succinct, it is most probable that the Court wanted to avoid this very specific case to be considered as a real precedent.

    P.