Public International Law

Righting Wrongs: Reparations in the Articles on State Responsibility
Author(s): Dinah Shelton

Source: The American Journal of International Law, Vol. 96, No. 4 (Oct., 2002), pp. 833-856
Published by: Cambridge University Press
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RIGHTING WRONGS: REPARATIONS IN THE ARTICLES ON
STATE RESPONSIBILITY
By Dinah Shelton*
The International Law Commission's articles on reparations1 restate the existing law
remedies, but they also innovate in significant ways to reinforce broader community inter
ests in international legality. Given the dearth of precedents on reparations, both aspe
can be helpful to tribunals and parties engaged in traditional interstate litigation, but the p gressive elements, if they are
accepted by states, could have wider application in supporting
mechanisms to enhance implementation and observance of international obligations. T
combination of codification and progressive development, however, is sometimes an uneasy fit and leaves unanswered
several important questions about the theoretical foundation and
practical application of the law of reparations. Even the seeming clarity of the articles deceptive because some of
the concepts included in the broadly drafted provisions can
difficult to apply in practice.2
Looking first at the aspect of codification, the articles that restate the law of remedies m
help shape the expectations of parties to a dispute, becoming a basis for negotiations w
international obligations are breached.3 If a dispute is thereafter submitted to a tribunal, t
articles, although general, can still provide some guidance. This feature is significant
cause, while the number of interstate cases remains relatively small, the percentage in whic reparations are sought seems
to have grown.4 Among recent cases, the articles, even in draf
*Professor of Law, University of Notre Dame.

Draft Articles on Responsibility of States for Internationally Wrongful Acts, pt. 2, Arts. 28-41, in Report of
International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at
UN Doc. A/56/10 (2001), available at <http://www.org.un/law/ilc>, reprinted inJAMES CRAWFORD, THE INTER
TIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES (200
References to, and quotations of, the articles, as well as the official ILC commentaries to the articles, which app in the Commission's Fifty-third Report
and Crawford's volume, supra, will be identified below by article and p
graph number.
2 See, for example, the discussion of continuing violations, in text at notes 38-47 infra. The general stateme
of obligation to make reparation for harm caused masks many difficult legal issues that probably could not be quately answered by a single set of
articles, because the principles are intended to apply to every breach of an in
national obligation regardless of the source of the obligation or nature of the breach. Left vague are the answ to questions such as what is
injury? what are the required causal links to require reparation for asserted injur
when can compensation substitute for restitution? The commentary adds needed detail; the commentary to Art
36, discussed in text at notes 123, 126-33 infra, is especially helpful in providing a lengthy review ofjudicial p tice assessing compensation for
injury.
3 Most interstate disputes are resolved by direct negotiations between the disputing parties. Jose E. Alvarez, New Dispute Settlers: (Half) Truths and
Consequences, 38 TEX. INT'LLJ. (forthcoming 2003) (manuscript at 12-13
file with author). Many interstate disputes, of course, do not involve claims for reparations. In some cases the partie
seek only to determine the applicable law, which may be so unclear as to be disputable. In the North Sea Contine Shelfcases, for example, the parties
did not ask for delimitation of boundaries, but for the applicable principles
rules to be applied by them. North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ REP. 3 (Feb. 20)
Robert Y. Jennings, The Proper Work and Purposes of the International Court ofJustice, in THE INTERNATIONAL CO
OFJUSTICE 33-45 (A. S. Muller et al. eds., 1997). According to Christine Gray, about one third of the cases at t
Permanent Court of InternationalJustice (PCIJ) involved a claim for damages. CHRISTINE D. GRAY,JUDICIAL RE
EDIES IN INTERNATIONAL LAW 77 (Clarendon Paperbacks 1990) (1987).
4 Recent cases at the International Court ofJustice (ICJ) asking for reparations include LaGrand (Ger. v. U.S FisheriesJurisdiction (Spain
v. Can.), Armed Activities on the Territory of the Congo (Congo v. Uganda; Co v. Rwanda; Congo v. Burundi), Land and Maritime Boundary
Between Cameroon and Nigeria (Cameroon v. N Aerial Incident of 10 August 1999 (Pak. v. India), Convention on the Prevention and
Punishment of the Cr
833
834
THE AMERICANJOURNAL OF INTERNATIONAL LAW [Vol. 96:833
form, were cited by several parties andjudges at the International Court ofJustice5 and the International
Tribunal for the Law of the Sea.6 The use and influence of the articles partly
reflects the close ties between the International Law Commission (ILC) and the ICJ,7 but
may also be linked to the lack of innovation in the rules on reparations; they probably find
greater acceptance than if the ILC had moved significantly ahead of state practice.
The greatest relevance and impact of the reparations articles may ultimately lie outside the scope of the
project, however. During the articles' lengthy drafting period, the number of multilateral treaties and
nonbinding normative instruments grew rapidly, as did the variety of topics they concern. Many new
obligations are unilateral or vertical, in the sense that they concern duties owed by states to individuals and
legal persons within their territory and ju-risdiction; norms governing the commons areas, like instruments
on the law of the sea and outer space, have also proliferated. Breach of these duties is unlikely to injure
another state directly or give rise to a classic claim for reparations. Partly for this reason, the articles em-
phasize cessation of violations and compliance with obligations. Furthermore, the virtual
absence of interstate cases in subject areas such as international human rights and environ-mental law
suggests that the rules on reparations are more likely to be invoked in proceedings involving nonstate
actors, where reparations may be essential to the lives or the livelihoods of those injured.8 If the articles
have a wider impact on tribunals hearing claimed breaches of duties owed to nonstate actors, they will serve
an important purpose in promoting consistent
and fair remedies.9
This essay examines the articles on reparations as they codify and progressively develop
the international law of remedies. The essay begins with an examination of the traditional law and
practice concerning reparations and proceeds to an overview of the content of the
relevant articles. The remaining sections examine, first, the progressive measures designed
to restore and maintain the international rule of law, then the more conservative rules de-
signed to provide remedial justice for an injured state or states, highlighting the different, sometimes inconsistent
approaches to the two parts. On the one hand, the emphasis on in-ternational legality leads to suggestions that
collective measures, including sanctions, may be called for in response to breaches of some norms; while, on the
other hand, the limited construct of remedial justice leads to the rejection of punitive damages or other deterrent
measures that may be sought by an injured state. The conclusion suggests that the articles codifying existing law will
continue to have relevance in settling international disputes, but they need to be considered in the wider context of
modern compliance mechanisms. In par-ticular, the potential divergence between the community's interest in
inducing or restoring compliance, and the injured party's interest in reparations will need to be considered.
of Genocide (Bosn. & Herz. v. Yugo.), Aerial Incident of 3July 1988 (Iran v. U.S.), Gabcikovo-Nagymaros Project (Hung. v. Slovk.),
and Arrest Warrant of 11 April 2000 (Congo v. Belg.). The applications, memorials, and judg-ments are available online at
<http://www.icj-cij.org>.
5See, e.g., Memorial of Germany (LaGrand Case) 241 (Sept. 16,1999) (calling the ILC draft articles on responsi-
bility "the most authoritative statement of customary international law on the matter").
6In M/V "Saiga" (No. 2) (St. Vincent & the Grenadines v. Guinea), para. 171 (July 1,1999), 38 ILM 1323, 1357
(1999), available at <http://www.itlos.org>, the International Tribunal for the Law of the Sea cited the draft articles in stating that "[r] eparation
may be in the form of 'restitution in kind, compensation, satisfaction and assurances
and guarantees of non-repetition either singly or in combination' (article 42, paragraph 1, of the Draft Articles of the International
Law Commission on State Responsibility)."
7 On the cross-fertilization of ideas on state responsibility between the ILC and the ICJ, see generally Robert
Rosenstock & Margo Kaplan, The Fifty-third Session of the International Law Commission, 96 AJIL 412, 414-15 (2002).
8 The ICJ has indicated that the basic principle of reparation articulated in the Chorzdw Factory case applies to reparation for injury to
individuals, even when a specific jurisdictional provision on reparation is contained in the
statute of the tribunal. Application for Review of Judgement No. 158 of the United Nations Administrative Tribu-
nal, Advisory Opinion, 1973 ICJ REP. 166, 197-98 (July 12) (citing Factory at Chorz6w (Ger. v. Pol.), Indemnity, 1928 PCIJ (ser.
A) No. 17 (Sept. 13) [hereinafter Chorz6w Factory, Indemnity]).
9 For a critique of current international practice in the field of human rights, see DINAH SHELTON, REMEDIES
IN INTERNATIONAL HUMAN RIGHTS LAW (1999).
2002] SYMPOSIUM: THE ILC'S STATE RESPONSIBILITY ARTICLES 835
I. REMEDIES IN INTERNATIONAL LAW
The core of the provisions on reparations clearly represents existing law: every breach of
an international obligation carries with it a duty to repair harm caused.'? One of the m
oft-quoted passages in international law is from the Chorz6w FactoryJudgment of the Perm nent Court of
InternationalJustice. It sets forth the basic principles governing reparations
following breach of an international obligation.l According to the Court:
The essential principle contained in the actual notion of an illegal act... is that rep ration must, so far as
possible, wipe-out all the consequences of the illegal act and r
establish the situation which would, in all probability, have existed if that act had not bee
committed. Restitution in kind, or, if this is not possible, payment of a sum correspond ing to the value which a
restitution in kind would bear; the award, if need be, of damag for loss sustained which would not be covered by
restitution in kind or payment in plac
of it-such are the principles which should serve to determine the amount of compe
sation due for an act contrary to international law.'2
Less often cited, but equally important, is the Court's closely related pronouncement dur-
ing the jurisdictional phase of the case that
[i]t is a principle of international law that the breach of an engagement involves a obligation to make
reparation in an adequate form. Reparation therefore is the indi
pensable complement of a failure to apply a convention and there is no necessity for thi
to be stated in the convention itself.'
These interrelated principles-that an international delict generates an obligation of rep-

aration, and that reparation must insofar as possible eradicate the consequences of the ille-
gal act-are the foundation of the international law on remedies and the ILC articles on reparations; indeed, the PCIJ
has called the obligation of reparation part of the general con-
ception of law.'4
International tribunals have inferred from this foundation an inherent power to afford remedies. Since it is a
principle of international law that every violation of an international obligation creates a duty to make reparation, an
international tribunal withjurisdiction over
a dispute has jurisdiction to award reparations upon determining that a breach of inter-national law has
occurred. In the LaGrandJudgment, the International Court of Justice
asserted this competence, stating that, " [w] herejurisdiction exists over a dispute on a partic-
ular matter, no separate basis forjurisdiction is required by the Court to consider the remedies
10 The article setting forth the general principle is a restatement of the Chorz6w Factory declaration quoted in
text at note 13 infra.
1 The Chorzow FactoryJudgment may have drawn upon the decision of Judge Max Huber in British Claims in the
Spanish Zone of Morocco (Spain v. UK), where he characterized international responsibility as being the corollary of a right and
entailing the duty to make reparations when engaged. 2 R.I.A.A. 615, 641 (1925).
12 Chorz6w Factory, Indemnity, supra note 8, at 47. The case arose from the expropriation of a factory by Poland, which the Court
held was in violation of the German-Polish Convention Concerning Upper Silesia of May
15, 1922. The Court distinguished an unlawful expropriation from a lawful taking and held that the measure of dam-
ages for the unlawful taking was the value of the undertaking at the time of indemnification plus any losses sustained
as a result of the expropriation, including lost profits. In the case of a lawful taking, payment of fair compensation
(the value of the property at the time of the taking plus interest to the date of payment) would be adequate to avoid
a wrongful act.
13 Chorz6w Factory (Ger. v. Pol.), Jurisdiction, 1927 PCIJ (ser. A) No. 9, at 21 (July 26), reaffirmed in Repara-tion for Injuries
Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ REP. 174, para. 184 (Apr. 11).
14 Chorz6w Factory, Indemnity, supra note 8, at 29 ("[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."). According to
Fitzmaurice, " [T] he notion of international responsibility would be devoid of content if it did not involve a liability to 'make reparation in an
adequate form'." 1 GERALD FITZMAURICE, THE LAW AND PROCEDURE OF THE INTERNA-
TIONAL COURT OFJUSTICE 6 (1986).
836 THE AMERICANJOURNAL OF INTERNATIONAL LAW [Vol. 96:833
a party has requested for the breach of the obligation."15 International courts apply and develop international
law to determine the scope, nature, modality, and beneficiaries of
reparations,'6 at times rejecting the applicants' claims in whole or in part.17
The Chorz6w FactoryJudgment remains the cornerstone of international claims for repa-
rations, whether presented by states or other litigants.18 Its importance reflects the fact that
few other international decisions carefully examine the rationales for and principles under-lying the remedies for
breach of an international obligation. Parties to international proceed-
ings often appear to treat these matters as an afterthought in presenting claims, either failing to demand reparations
or, more frequently, omitting any reasoning or adequate proof on which
an award may be based. Not surprisingly, then, authority differs on many issues and impor-
tant practical aspects, including awards of interest and lost profits, and damages for loss of life.
Several reasons may explain the lack of attention to remedies. First, parties to interna-tional proceedings
may envisage the process primarily as a compliance mechanism aimed
at obtaining cessation of the breach.19 The issue of remedies for past injury may be seen as less
important than ensuring future compliance by the defaulting state. Further, in some circum-
stances cessation and restitution can be satisfied by the same act; if cessation is the focus,
restitution need not be discussed separately. Or the tribunal may find that the law has not
been breached, or, if it has, the injury may be intangible and cause no financially assessable harm, e.g., in cases
concerning boundary delimitation or infringement of state sovereignty
by an act such as illegal overflight. In human rights tribunals, individuals sometimes seek
relief limited to a declaratory judgment that their rights have been violated, to have an
acknowledgment of the wrong done to them.20 Cases concerned with breaches of trade and
15 LaGrand Case (Ger. v. U.S.), Merits, para. 48 (Int'l Ct.JusticeJune 27, 2001), 40 ILM 1069, 1082 (2001) (cit-
ing Chorz6w Factory,Jurisdiction, supra note 13, at 22). The inherent power of the Court to award reparations was also affirmed in, inter alia,
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits,
1986 ICJ REP. 14, 142 (June 27); and FisheriesJurisdiction (FRGv. Ice.), Merits, 1974 ICJ REP. 175,203-05, paras.
71-76 (July 24). Brownlie notes that the presumed power of the Court to award damages has gone unquestioned.
Ian Brownlie, Remedies in the International Court of Justice, in FIFTYYEARS OF THE INTERNATIONAL COURT OFJUSTICE
557, 558 (Vaughan Lowe & Malgosia Fitzmaurice eds., 1996) [hereinafter FIFTYYEARS OF ICJ].
16 In the Chorz6wFactory case, the Court found that itsjurisdiction extends to method of payment, beneficiaries, and other aspects of
reparation. Chorz6w Factory,Jurisdiction, supra note 8, at 61-62. Later, in the Corfu Channel
case, the ICJ decided that it had competence to assess the actual amount of damages due in any case where it had competence to
say that there was a duty to pay compensation. Corfu Channel Case (UKv. Alb.), Merits, 1949 ICJ
REP. 4, 23-24 (Apr. 9). The Court relied on the principle of effectiveness in finding that it was required to set the
amount. "If, however, the Court should limit itself to saying that there is a duty to pay compensation without decid-
ing what amount of compensation is due, the dispute would not be finally decided. An important part of it would
remain unsettled." Id. at 26; see also Loayza Tamayo, Reparations, Inter-Am. Ct. Hum. Rts. (ser. C) No. 42, para. 86
(1998), available at <http://www.corteidh.or.cr>.
17 See, e.g., Loayza Tamayo, supra note 16, paras. 155-58. In the Loayza Tamayo case, the Court invoked the prin-
ciple of proportionality to determine the scope of reparations, while in the earlier Veldsquez Rodriguez case, it
applied principles of equity to determine indemnification for nonmonetary harm. Velasquez Rodriguez, Com-pensatory Damages, Inter-
Am. Ct. Hum. Rts. (ser. C) No. 7, para. 27 (1989). In both cases, the Court denied some
reparations claims of the applicants.
18 See LaGrand Case, supra note 15, para. 48; M/V "Saiga," supra note 6, para. 170; Papamichalopoulos v. Greece,
330-B Eur. Ct. H.R. (ser. A) para. 36 (1995); Tippetts, Abbett, McCarthy, Stratton v. TAMS-AFFA Consulting Engi-neers of Iran, 6 Iran-
U.S. Cl. Trib. Rep. 219, 225 (1984). The Inter-American Court has repeatedly stated that Arti-
cle 63 (1) of the American Convention on Human Rights, concerning reparations, articulates general international
law, citing Chorz6w Factory, Jurisdiction and Indemnity, supra notes 13, 8. Velasquez Rodriguez, supra note 17, paras. 25-26, 30-
31.
1 Recent examples at the ICJ include the LaGrand Case, supra note 15, and Arrest Warrant of 11 April 2000 (Congo v. Belg.) (Int'l
Ct.Justice Feb. 14, 2002), 41 ILM 536 (2002) [hereinafter Arrest Warrant]. In both instances,
the applicants sought cessation of the breach and guarantees of nonrepetition.
2( For an overview of human rights cases where applicants requested declaratoryjudgments but no damages, see SHELTON, supra
note 9, at 201-02, 211, 218-19. Human rights law is a source of extensive and useful jurispru-
dence on reparations, but it is not always clear whether the tribunals are applying lex specialis (based on provisions
in their constituting treaties) or the international rules on state responsibility. See, in particular, the practice of the European Court of
Human Rights, discussed in SHELTON, supra note 9. The articles contain a "savings clause"
that indicates that interstate reparations are without prejudice to reparations that may be owed to individuals,
intergovernmental organizations, or other nonstate entities. Art. 33(2). Human rights obligations are the major category where
individuals are the ultimate beneficiaries and rights holders, but other rights may be created bv treaty, such as the consutlar rights at
issue in the LaGrand Case, supra note 15, paras. 77-78.
investment obligations often rest on specific agreements that contain varied rules on repa-rations.2
The paucity of law on reparations may also discourage reasoned development of claims
for remedies or reasoned responses byjudges or arbitrators, leaving litigating parties and tri-bunals to treat these as
equitable matters within the decision maker's discretion rather than as a matter of international obligation. Equally
important,jurisprudence and doctrine almost completely fail to discuss the theoretical foundation of or rationale for
reparations. The var-
ious and potentially conflicting aims of compensatoryjustice, deterrence, and punishment that could provide a
coherent basis for developing detailed rules are largely unexamined,
as are contemporary theories of law and economics and restorativejustice.22 This gap leaves
open the question why and to what extent reparations should be afforded.
The articles on state responsibility thus perform an important function in addressing rep-arations, although they fail
to delve into the theoretical issues just mentioned. As this essay will show, the articles rightly claim to codify and
extend through logical inference many as-pects of state practice andjurisprudence on reparations. Other provisions,
however, modify in important respects the classic doctrine set forth in the Chorzow Factory case. During the
drafting, some states objected to other proposed innovations and such comments affected the final product.23
Perhaps the desire to secure ultimate acceptance from states explains
why the articles missed the opportunity to go further in several respects. They could, for ex-ample, have stated that the
rules on state responsibility apply to breaches of obligations to-ward nonstate actors as well as toward states; have
given more importance and detail to satis-
faction as a remedy, especially considering the role of symbolic reparations; have provided
a role for sanctions, including awards of punitive damages, to deter future violations; or have attempted to integrate
reparations and modern compliance mechanisms more fully. Despite the omissions, the articles appear correctly to
reflect widely accepted rules on reparation for injury while moving forward, albeit cautiously, on the community interest
in compliance.24
II. AN OVERVIEW OF THE ARTICLES ON REPARATIONS
The basic architecture of the articles proceeds from the conceptual structure articulated
by the PCIJ in Chorz6w Factory and reaffirmed by the ICJ: part 1 sets forth the rules concerning
21 In the Barcelona Traction case, the ICJ referred to the "various arrangements made in respect of compensation for the nationalization of foreign
property," noting that" [s] pecific agreements have been reached to meet specific
situations, and the terms have varied from case to case. Far from evidencing any norm as to the classes of bene-ficiaries of
compensation, such arrangements are sui generis and provide no guide in the present case." Barcelona Traction, Light & Power Co., Ltd.
(Belg. v. Spain), Second Phase, 1970 ICJ REP. 3, 40, para. 61 (Feb. 5) [hereinafter
Barcelona Traction].
22 See generally BURYING THE PAST: MAKING PEACE AND DOINGJUSTICE AFTER CIVIL CONFLICT (Nigel Bigger ed.,
2001); RESTORATIVEJUSTICEAND CVIL SOCIETY (Heather Strang &John Braithwaite eds., 2001); GERRYJOHNSTONE, RESTORATIVE
JUSTICE: IDEAS, VALUES, DEBATES (2002); DANIEL W. VAN NESS & KAREN HEETDERKS STRONG, RE-
STORINGJUSTICE (2002).
23 Widespread objections to the notion of state crimes led to deletion of the concept from the articles. Contrast
the treatment of assurances and guarantees of nonrepetition. The topic was controversial, although assurances
and guarantees have been utilized as a form of satisfaction in the past. CLYDE EAGLETON, THE RESPONSIBILITY OF
STATES 184-89 (1928). In 2000 the ILCjoined its text on assurances and guarantees to the provision on cessation. Germany relied
upon the ILC draft to ask for guarantees in the LaGrand case. The Court held it hadjurisdiction over the issue but did not discuss the legal basis
for insisting on assurances and guarantees. Subsequently, the ILC "was divided as to the interpretation of the Court's judgment and its
significance for the role of assurances and
guarantees of non-repetition in the articles." CRAWFORD, supra note 1, at 33. Some thought it significant that the
Court did not take a clear position on the existence of an obligation to provide such assurances, let alone speak of them as satisfaction
or another aspect of reparation. Others felt that the Court had supported the ILC draft. According to the rapporteur, however, "[g] overnments
have consistently supported their inclusion in Part Two, as well as their placement in article [30]." Id. The text was therefore retained.
24 Given the general lack of precedent and doctrine on reparations, there is some risk that the articles will "freeze"
the law in its present state and the hierarchy of reparations the articles establish will be applied mechanically. This risk may not be great,
however, in view of the flexibility drafted into the articles themselves, the generality with
which they are formulated, and the likelihood of ongoing debate about the issue.
838
breach of an international obligation, while part 2 articulates the legal consequences that
automatically flow from such a breach. The three chapters of part 2 affirm the new obliga-tions25 that
arise when a state commits an internationally wrongful act. These are "default
settings" that apply in the absence of a specific agreement about the consequences of the
breach of law.26 Chapter I sets forth the general consequences arising from an internation-ally wrongful
act. Chapter II is devoted to the various forms of reparations. The third chap-ter comprises two articles
stating innovative rules on reparations for "serious breaches of ob-
ligations under peremptory norms of international law."
As already noted, two conceptual premises appear to underlie the reparations articles:
( 1) the importance of upholding the rule of law in the interest of the international commu-nity as a whole,
and (2) remedial justice as the goal of reparations for those injured by the breach of an obligation. The first
premise expands the scope of the project as originally en-visaged, but also makes it more relevant to
contemporary international practice. Three sets
of provisions reflect the two concerns. First, the articles consider reparations in a multilateral
context rather than as an exclusively bilateral issue,27 emphasizing the restoration and main-tenance of
the rule of law and elaborating the consequences of a serious breach of a peremp-tory norm. Second, the
articles indicate that the purpose and scope of reparations are limited
to remedial measures, excluding sanctions or penalties such as punitive damages.28 Rules
concerning compensation restrict damages to provable, proximate losses to avoid excessive
recovery. Even the traditional remedy of satisfaction is discouraged because it has been used
in the past for punitive purposes. Third, the articles insist on the obligation of full repara-
tion but provide for some flexibility, incorporating an element of proportionality or taking
into account equitable considerations in affording reparations.29 These themes cover both
the community interest and the concerns of injured parties, but they leave many issues for further consideration
and elaboration, especially how to reconcile and meet the goals of restoring the rule of law, deterring future
violations, settling disputes, and providing full
redress to those harmed.
25 The articles articulate all the rules in part 2 in terms of obligations of the responsible state, rather
rights of the injured party to obtain reparation. This change was made in 1999 after the first reading, in cause it was believed that approaching reparation
as a right rather than a duty tended to exclude aspects o tion such as declaratory relief and also seemed to suggest that the appropriate form of
reparation is prede
by international law, instead of being a matter of some flexibility. SeeJames Crawford, Third Report on State
sibility, UN Doc. A/CN.4/507, at 4-6,12-13 (2000) [hereinafter Crawford, Third Report]. The shift to obli
also serves to reinforce the concern to restore and maintain the rule of law.
26 Examples of lex specialis on remedies include the Understanding on Rules and Procedures Governing the Set-
tlement of Disputes, Annex 2 to the Marrakesh Agreement Establishing the World Trade Organization, Apr. 15,
1994, in WORLD TRADE ORGANIZATION, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAYROUND OF MULTILATERAL
TRADENEGOTIATIONS 354 (1999); and the noncompliance procedures established pursuant to the Montreal Proto-
col on Substances That Deplete the Ozone Layer, Sept. 16, 1987, 1522 UNTS 293.
27 The original work on the topic focused on state responsibility for injuries to the persons or property of aliens,
a matter of dispute between the responsible state and the state of the injured alien. See the six reports of Specia Rapporteur F. V. Garcfa-
Amador, presented between 1956 and 1961, in [1956] 2 Y.B. Int'l L. Comm'n 173, UN Doc. A/CN.4/SER.A/1956/Add.1; [1957] 2 Y.B. Int'l L.
Comm'n 104, UN Doc. A/CN.4/SER.A/1957/Add.1;
[1958] 2Y.B. Int'l L. Comm'n 47, UN Doc. A/CN.4/SER.A/1958/Add.1; [1959] 2 Y.B. Int'l L. Comm'n 1, UN
Doc. A/CN.4/SER.A/1959/Add.1; [1960] 2 Y.B. Int'l L. Comm'n 41, UN Doc. A/CN.4/SER.A/1960/Add.1; [1961] 2Y.B. Int'l L. Comm'n
1, UN Doc. A/CN.4/SER.A/1961/Add.1.
28 In theory, compensation or other remedial action is not a sanction, being corrective of an unjust imbalance
created by the wrongful act. In taking any gain from the wrongdoer and restoring it to the injured party, both par-ties are restored to the positions
they held before the wrongful act occurred. See SHELTON, supra note 9, ch. 2 ("The-
ories of Remedies").
29 The role of equity appeared in the Meuse case. In his individual opinion,Judge Hudson quoted the applicable
reparations language from Chorz6wFactory, and then added: 'Yet, in a particular case in which it is asked to enforce
the obligation to make reparation, a court of international law cannot ignore special circumstances which may call for the consideration of
equitable principles." Diversion of Water from the River Meuse, 1937 PCIJ (ser. A/B) No. 70, at 78 (June 28). The Court refused to decree
specific performance of an obligation the applicant itself
was not performing. On the role of equity in the resolution of disputes at the ICJ, see Prosper Weil, L 'equit dans
la jurisprudence de la Cour internationale de Justice, in FIFTYYEARS OF ICJ, supra note 15, at 121.
III. THE MULTILATERAL CONTEXT: RESTORING AND MAINTAINING THE RULE OF LAW
The consequences of a breach of international law have been considered generally to

relate only to the states that suffer injury as a result of the breach. Thus, reparations are es-sentially a bilateral matter
between the responsible and the injured states. The proliferation of multilateral agreements, however, renders this
traditional approach to state responsibility inadequate: although a breach of such an agreement may cause no
specific harm to any state, it may undermine the effectiveness of the legal regime and respect for the rule of law. Part
2 of the articles responds to the challenge of upholding the international rule of law in an in-creasingly complex global
legal environment in several ways. First, the consequences flowing from a breach are stated in terms of the general
international obligations of the responsible state, and not as specific rights of an injured party.30 Second, the articles
emphasize the con-tinuing duty to perform an international obligation. Third, Article 33 clearly indicates that
the responsible state may owe obligations not only to the injured state or states, but to the inter-
national community as a whole. Finally, the concluding articles of chapter III impose on the entire international
community a duty to respond to a serious breach of a peremptory norm.
The six articles in chapter I31 lay out the legal consequences that flow from an internation-ally wrongful act. These
focus heavily on reestablishing and upholding the international rule of law, in the interest both of any injured state
and of the international community at large. The commentary highlights this multilateral context, expressing concern
for "the mainte-nance of respect for international law and for the achievement of the goals which States ad-vance
through law-making at the international level."32
Cessation of a Wrongful Act
The articles powerfully express the community and individual interest in the rule of law through the fundamental
and initial requirements that states perform their obligations and cease any ongoing wrongful act. The placement and
treatment of cessation represents an im-portant shift from earlier approaches to the law of state responsibility, which
almost entirely focused on repairing injuries suffered by the injured state or states. Cessation and guarantees
of nonrepetition were considered a form of satisfaction, a remedy available to the injured

state.33 Now, cessation is treated as an inherent obligation of the responsible state and not as a form of reparation.
Article 29 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.34 Article 30 adds
30 Part 2 is entitled "Content of the International Responsibility of a State" and Article 28 specifies that an inter-
nationally wrongful act entails legal consequences for the responsible state.
31 The six articles in chapter I address the fact that an internationally wrongful act entails legal consequences (Art. 28); the
responsible state's duty to perform the obligation breached (Art. 29); the duty to cease a continuing wrong and provide guarantees of
nonrepetition, if appropriate (Art. 30); the duty of full reparation for injury caused (Art. 31); the irrelevance of internal law to reparations
(Art. 32); and the scope of the obligations as owed to one or more states or to the international community as a whole (Art. 33).
32 Commentary to pt. 2, ch. I, General Principles, para. 1.

33 One reason why cessation may have been seen as a form of reparation is that it is often indistinguishable from
restitution. For example, where individuals are wrongfully detained, cessation as well as restitution can be accom-
plished only by restoring the liberty of the detained persons. See, e.g., United States Diplomatic and Consular Staff
in Tehran (U.S. v. Iran), 1980 ICJ REP. 3 (May 24); Loayza Tamayo, supra note 16.
34 The 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.
Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 60, 1155 UNTS 331. See also the Gabcikovo-Nagymaros
Project case, where the ICJ held that the bilateral agreement remained in force, despite con-tinuing material breaches by both sides. Gabclkovo-
Nagymaros Project (Hung./Slovk.), 1997 ICJ REP. 7,68, para. 114
(Sept. 25). While states may agree that some treaties will terminate upon breach, the articles see this as a matter
regulated by the relevant primary obligation, not by the law of state responsibility.
840
that if the wrongful act is continuing,35 it must cease, and "if circumstances so require," the state
responsible must offer appropriate assurances and guarantees of nonrepetition. Cessa-
tion is thus the first requirement imposed on a state committing a continuing wrongful act.3:
The listing of cessation as the first general consequence to follow a breach of international
law reflects a fundamental concern for compliance and for the integrity of the legal order.
Recalling demands by the General Assembly and the Security Council for cessation in re-sponse to
serious breaches of international law, the commentary emphasizes that
[t]he function of cessation is to put an end to a violation of international law and to
safeguard the continuing validity and effectiveness of the underlying primary rule. The responsible
State's obligation of cessation thus protects both the interests of the injured
State or States and the interests of the international community as a whole in the pres-ervation of,
and reliance on, the rule of law.37
The emphasis on the rule of law as the basis for cessation also entails practical conse-
quences. First, cessation is not at the option of the injured state; the violation must cease,
even if the injured state does not demand it.38 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.
The notion of an automatic obligation to cease a continuing breach is powerful, but like
other aspects of reparations it can be difficult to apply in practice. Perhaps the articles en-visage the
issue as arising in compliance procedures and other multilateral forums, although
specific disputes can also involve demands for cessation. In any event, the seemingly clear distinction
between a continuing violation and one that has ceased but has continuing con-
sequences is not analyzed sufficiently in either the articles or the commentary to allow for predictable or
consistent results.39 The difficulties of application are illustrated by the ICJ's
Judgment in the Arrest Warrant case, where the parties and judges used and cited the articles.""
The Democratic Republic of Congo (DRC) complained and the Court agreed that Belgium,
by issuing an international warrant for the arrest of the DRC's foreign minister, violated the
minister's immunity from criminal jurisdiction under customary international law. The
Court also held that the violation was a continuing one, even after the individual had ceased
to hold office.
The question of continuation was essential to the issue of reparations. On the one hand,
if the arrest warrant was wrongful only so long as the foreign minister was in office, then the
violation had ceased by the time of the hearing and judgment, so that only the continuing effects of the past breach
needed to be remedied. On the other hand, as a continuing wrong, the warrant would have to be withdrawn to comply
with Belgium's duty to cease the unlawful act. As another practical consequence, withdrawal as cessation would be
mandatory, whereas
withdrawal as restitution would be only an option, albeit the preferred one.
Rather than request cessation utilizing the conceptual framework of the articles, the DRC
sought a declaration that Belgium must annul the warrant as a matter of restitution, to restore
:5 The commentary indicates that the term "continuing" is intended to encompass situations where a state has
repeatedly violated an obligation, implying the possibility of further repetitions. Commentaries, Art. 30, para. 3.
Such a situation would seem, strictly speaking, to fall more within the second paragraph on the need for guaran-
tees of nonrepetition than to be an act of a continuing character. If the violation is not occurring at a particular
time, there is no wrongful conduct that must cease.
36 In the Rainbow Warrior arbitration, reference is made to the inherent authority of a tribunal to issue an order
for the cessation in the face of a continuing breach. Rainbow Warrior (N.Z./Fr.), 20 R.I.A.A. 217, 270 (1990).
37 Commentaries, Art. 30, para. 5.
38 Id., para. 8.
9 A continuing violation is defined in Article 14(2) as one that "extends over the entire period during which
the act continues and remains not in conformity with the international obligation." This is distinct from a wrongful
act that merely has consequences or effects that extend in time.
4o Arrest Warrant, supra note 19.
the situation that would in all probability have existed if the wrongful act had not been com-mitted.41 Belgium
responded that it was not obliged to withdraw and cancel the warrant be-
cause "there is no suggestion that it presently infringes the immunity of the Congo's Minister for Foreign Affairs."42
The ICJ declared Belgium's conduct unlawful43 and agreed with the DRC that cancellation
of the warrant was an appropriate remedy, although whether as restitution or cessation is
not clear. Citing and quoting Chorzow Factory, the Court stated that the mere declaration of wrongfulness would be an
inadequate remedy to restore the situation to its previolation sta-tus, implying that it viewed cancellation as part of the
remedy of restitution. The Court im-mediately followed this statement, however, by directing Belgium to cancel the
existing war-rant because it "remains unlawful,"44 suggesting that it viewed the issue as one of cessation.
Judges Rosalyn Higgins, Pieter Kooijmans, and Thomas Buergenthal viewed the majority's
characterization of the matter as one of restitution and expressed puzzlement, because with-drawal of an instrument "is
generally perceived as relating to the cessation of a continuing international wrong."45 In their view, restitution of the
status quo ante would be impossible, as the former foreign minister no longer held office.46 Moreover, they saw no
continuing wrong because the illegality of the arrest warrant ceased at the moment the foreign minister
left office; in their view, therefore, the Court erred in ordering Belgium to cancel the warrant.
This case illustrates the difficulties that arise in practice in requiring cessation of a breach, although, as indicated in
the commentary, this problem arises frequently and will reverber-ate to important effect in the application of Article
30.47
Serious Breaches of Peremptory Norms
The emphasis on and placement of the rules on cessation reflect concern for the interna-tional rule of law, as
does chapter III of the articles, but this chapter innovates even more
boldly in the law of state responsibility. It consists of two articles on reparations for "a serious
breach by a State of an obligation arising under a peremptory norm of general international
law."48 Article 40 delimits the scope of the chapter, defining a "serious breach" as one involving
41 Similarly, the German application in the LaGrand case asked that the criminal conviction obtained after the
breach be declared "void" and the previolation status of the convicted German national be restored. This claim
was not maintained in the final submissions, the government instead demanding guarantees of nonrepetition.
Restitution therefore was not in issue.
42 Arrest Warrant, supra note 19, para. 74.
43 The Court calls its findings of international responsibility a form of satisfaction "to make good the moral injury complained of by the
Congo." Id., para. 75.
44 Id., para. 76.
45 Id., Joint Separate Opinion ofJudges Higgins, Kooijmans, & Buergenthal, para. 89 (citing Article 30 of the
ILC articles on state responsibility).
46 Restitution posed practical problems similar to those identified in the Rainbow Warrior case, supra note 36, where the adjudicator
refused to order a return to the status quo ante. The French breached an obligation to de-
tain the individuals who committed the wrongful act on an island for a period of time. The time for detention had
expired by the time the case was heard. The award found no continuing obligation to detain because the time
limit had expired. An obligation to return (restitution) was deemed not a significant remedy if the individuals were
not to be detained once returned. Commentaries, Art. 30, para. 8. In this and similar cases where the obligation
breached no longer exists, a return to the status quo ante may be of little or no value. Belgium could issue another arrest warrant for the individual who
no longer holds office.
48 The articles do not identify any peremptory norms, although the commentary gives as examples the prohi-bitions of aggression, slavery
and the slave trade, genocide, racial discrimination, and apartheid. The commentary to Article 40, in paragraph 4, cites their prohibition in
"widely ratified international treaties and conventions
admitting of no exception" despite the permissibility of reservations to and denunciations of the treaties cited. The commentary, in paragraph 5, also
cites the prohibition of torture and the basic rules of international humanitarian
law applicable in armed conflict, and mentions the obligation to respect the right of self-determination.
842
a gross or systematic failure by the responsible state to fulfill the obligation.49 Article 41 de-
scribes the consequences that follow:
1. States shall cooperate to bring to an end through lawful means any serious breach within the
meaning of article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the meaning
of article 40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this Part and to such
further consequences that a breach to which this Chapter applies may en-tail under international law.
Chapter III replaced the controversial and much criticized earlier set of articles conce ing crimes of state,50 while
leaving unchanged some of the consequences of violating s
norms.51 The resulting two articles, asserting the existence ofjus cogens norms and erga omn
obligations of action and abstention claimed to result from their serious breach, repres
the most far-reaching examples of the progressive development of international law in the
articles on reparations. The commentary maintains that the doctrines of obligations e
omnes and jus cogens are accepted and have necessary consequences that must be reflected i
the rules on state responsibility.52 The two articles in this chapter may serve as a necessary co
promise between those who pressed for the inclusion of crimes of state and the many criti
of the concept, but the result is unlikely to garner widespread support from states,53 as it se
based more on the advocacy of scholars who see a need for jus cogens than on actual st
practice.54
49 The commentary indicates that "gross" refers to the intensity of the violation or its effects, meaning flagrant
violations. A "systematic" violation is one carried out in an organized and deliberate way. Commentaries, Art. 40, para. 8.
No procedures are indicated for determining when such a breach has occurred.
50 See [1976] 2Y.B. Int'l L. Comm'n, pt. 2, at 95-122, UN Doc. A/CN.4/SER.A/1976/Add.1 (Part 2); Report
of the International Law Commission on the Work of Its Fiftieth Session, UN GAOR, 53d Sess., Supp. No. 10, at 64-69, paras. 241-
77, UN Doc. A/53/10 (1998) [hereinafter ILC 50th Report]. The commentary finds no support
in practice for the concept of state crimes. Commentaries, ch. III, paras. 5-7. The Third Report on State Respon-
sibility noted that the articles on international state crimes had been widely criticized as inadequate and poorly integrated into the
text. Crawford, Third Report, supra note 25, at 7 (citing ILC 50th Report, supra, at 135-37,
paras. 298-301).
51 The obligation not to recognize the consequences of a serious breach of a peremptory norm and not to aid
the violating state appeared in earlier reports as consequences of the commission of a crime. Gaetano Arangio-Ruiz, Sixth Report on State
Responsibility, [1994] 2 Y.B. Int'l L. Comm'n 20, UN Doc. A/CN.4/SER.A/1994/Add.1.
52 The commentary notes that the issue of hierarchy of norms has been much debated, but finds support for
the distinctions made in Articles 40 and 41 in the notion of erga omnes obligations and the inclusion of the concept of peremptory norms in the
Vienna Convention on the Law of Treaties, supra note 34, Arts. 53, 64. On erga omnes obligations, see Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosn.-Herz. v. Yugo.), Preliminary Objections, 1996 ICJ REP. 595,616, para. 31 (July 11);
East Timor (Port. v. Austl.),
1995 ICJ REP. 90, 102, para. 29 (June 30); Barcelona Traction, supra note 21, at 32. Distinctions are rightly drawn
between the concept of fundamental or peremptory norms and obligations erga omnes, which are not necessarily
peremptory in character. Erga omnes obligations focus on the legal interest of all states in compliance with such
norms, while peremptory norms are alleged to have normative priority over other obligations. Confusion may have
arisen because the Barcelona TractionJudgment seems to suggest that the reason all states may have a legal interest in compliance with
obligations erga omnes is "the importance of the rights involved." Id. Moreover, the examples the Court cites-outlawing acts of aggression and
genocide, providing protection from slavery and racial discrim-ination-are usually asserted as peremptory norms as well as obligations erga omnes.
53 The U.S. comments to the articles question the inclusion of this category of breaches and especially the
distinction between breaches and serious breaches. Draft Articles on State Responsibility: Comments of the Gov-
ernment of the United States of America (Mar. 1, 2001) (on file with author), excerpted in Sean D. Murphy, Con-temporary Practice of
the United States, 95 AJIL 626 (2001).
54 See, e.g., CHRISTOS L. ROZAKIS, THE CONCEPT OFJUS COGENS IN THE LAW OF TREATIES (1976); Eric Suy, The Con-cept ofJus
Cogens in Public International Law, in 2 CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, PAPERS AND PROCEEDINGS, THE CONCEPT
OFJUS COGENS IN INTERNATIONAL LAW 17 (1976); Alfred Verdross, Jus Dispositivum
andJus Cogens in International Law, 60 AJIL 55 (1966). For critiques of the concept of jus cogens, see Anthony
D'Amato, It's a Bird, It's a Plane, It'sJus Cogens!6 CONN.J. INT'L L. 1 (1990); Prosper Weil, Towards Relative Norma-
tivity in International Law? 77 AJIL 413 (1983).
In affirming the existence of peremptory norms, the articles state that both international
practice and thejurisprudence of international and national courts and tribunals have rec-
ognized the concept.55 Despite the provisions of the Vienna Convention on the Law of Trea-ties,56 however, the
evidence in practice remains sparse. Generally, neither international nor national tribunals discuss or apply the
concept of peremptory norms.57 The ICJ has avoided
pronouncing on their existence, most recently in the Arrest Warrant case, which involved alle-
gations of war crimes and crimes against humanity.58 Human rights tribunals similarly avoid
the concept. In the only human rights case to discuss jus cogens, the European Court of Human
Rights denied that violation of a peremptory norm could act to deprive a state of sovereign
immunity.5
In fact, the commentary and most authors on the subject essentially contend that peremp-tory
rules exist because they are needed, i.e., to "prohibit what has come to be seen as intol-
erable because of the threat it presents to the survival of States and their peoples and the
most basic human values."60 The urgent need to act that the concept suggests fundamentally
challenges the consensual framework of the international system by seeking to impose obli-gations
on dissenting states that the "international community" deems fundamental.61 It re-
mains to be seen whether the articles will contribute to acceptance in state practice of the
largely doctrinal assertion of the existence and consequences of peremptory norms.
Article 41 sets forth the particular consequences said to result from the commission of a serious
breach of a peremptory norm. To a large extent, Article 41 seems to reflect develop-ments in the
United Nations, such as the actions of the Security Council in response to ille-gal acts in southern
Africa and the Iraqi invasion of Kuwait.62 The text imposes positive and negative obligations upon
all states. In respect to the first, "[w]hat is called for in the face
of serious breaches is a joint and coordinated effort by all States to counteract the effects
of these breaches."63 This is the only provision in the reparation rules where the commentary
concedes that the proposal "may reflect the progressive development of international law,"

56 The articles on peremptory norms in the Vienna Convention on the Law of Treaties were the most con-
troversial during its drafting and were opposed by several key states that still have not ratified the Convention due
to continuing opposition to the concept. The Convention has 108 states parties at present.
57 See Military and Paramilitary Activities in and Against Nicaragua, supra note 15, para. 190 (citing the ILC
assertion that the norm against aggression is a peremptory norm as evidence that it is an obligation under custom-
ary international law); North Sea Continental Shelf, supra note 3, para. 72 (declining to enter into or pronounce upon
any issue concerning jus cogens). The U.S. court of appeals in the Filartiga case found a violation of the "law
of nations" in the commission of torture, but did not address the issue of peremptory norms. Filartiga v. Pena-Irala,
630 F.2d 876 (2d Cir. 1980).
58 Only one of the ten opinions in the Arrest Warrant case, supra note 19, mentions the concept ofjus cogens norms
despite its obvious relevance to the issues in the case. The dissenting opinion ofJudge Al-Khasawneh states that com-bating grave
international crimes has assumed a jus cogens character, which should prevail over rules of immunity.
59 Al-Adsani v. United Kingdom, Eur. Ct. H.R., App. No. 35763/97 (Nov. 21, 2001), available at <http://
www.echr.coe.int>.

61 The literature is replete with asserted examples of such norms, from the prohibition of genocide to t
to assassinate dictators. See, e.g., Louis Rene Beres, ProsecutingIraqi Crimes Against IsraelDuring the Gulf War:
lem's Rights Under International Law, 9 ARIZ.J. INT'L & COMP. L. 337 (1992) (jus cogens obligation to assass particular circumstances); Patricia
Reyham, Genocidal Violence in Burundi: Should International Law Prohibit
Humanitarian Intervention? 60 ALBANY L. REv. 771 (1997) (genocide); Shashank Upadhye, The Internationa
course: An Exploitable Resource for the Developing Nation Under International Law ? 8 CARDOZOJ. INT'L & COM
(2000) (right to development).
62 E.g., SC Res. 662, UN SCOR, 45th Sess., Res. & Dec., at 20, UN Doc. S/INF/46 (1990) (saying that the annex-
ation of Kuwait had "no legal validity, and is considered null and void," and calling on the international community not to recognize the
annexation and to refrain from any action or dealing that might be interpreted as a recogni-tion of it); see also Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ REP. 16, para. 126 (June 21)
[hereinafter Namibia case] (declaring the illegality of South Africa's presence in Namibia as having
erga omnes effects).
844
THE AMERICAN JOURNAL OF INTERNATIONAL LAW[ [Vol. 96:833
as it aims at strengthening existing mechanisms of cooperation.4 The core requirement of

abstention, the nonrecognition of illegal acts, finds more support in state practice, with prec-edents including
rejection of the unilateral declaration of independence by Rhodesia,65 the
annexation of Kuwait by Iraq,66 and the South African presence in Namibia.67 Article 41 extends
the duty to combat and not condone, aid, or recognize certain illegal acts beyond breaches
of the UN Charter and responsive action by the Security Council. The enhanced risk of uni-lateral
determination that serious breaches of peremptory norms have occurred, with con-
sequent unilateral action, should be recognized.
IV. THE REMEDIAL PURPOSE OF REPARATIONS
Reparations can be based on various rationales and theories. One widely accepted pur
pose is remedialjustice, to rectify the wrong done an injured party and correct injustice by restoring the status quo ante.68
Reparation is thus designed to place an aggrieved party in t same position as if no wrongful act had occurred, without
respect to the cost or consequenc
for the wrongdoer. This approach appears to be the basis for most international decisi
on reparations, including the Chorz6w Factory case; but other theoretical bases are possible. In the absence of an effective
collective sanctioning or enforcement authority, reparations could also serve to punish and deter wrongdoing.69 Law and
economics analysis of efficienc could similarly be brought to bear in designing remedies and deterring violations of law by
imposing appropriate costs for breaches of international obligations.70 Restorative justi

with its focus on reconciliation and inducing positive future behavior, is yet another model
The ILC articles have opted for remedial justice, reflecting the traditional approach of in-ternationaljurisprudence without
discussing the analytical underpinnings or consequences
of that choice. Throughout part 2, the reparations rules call for remedial measures that re-store the status quo
ante, through restitution where possible. Damages fulfill a purely com-pensatory purpose, excluding exemplary
or punitive awards. Guarantees of nonrepetition and satisfaction are disfavored, the first because such
assurances anticipate future breaches, and thus do not remedy injury already caused, and the second because
satisfaction has been used in the past as a punitive measure.
Law and economics analysis may question the primacy of restitution on grounds of effi-ciency, and, indeed,
compensation might be more utilitarian than restitution in many cases. The policy behind restitution appears
grounded in other values, however, such as the equal-ity of states. Restitution avoids "forced sales" whereby a
wealthy state can pay to obtain and keep a benefit, territory, or resource that could not be obtained by a poor state
through sim-ilar (illegal) means. The more extensive burden of restitution might also act as a deterrent,
,4 It is not in fact the only example of progressive development in the articles. As already noted, the placement of and emphasis on
cessation are new, as is the clear hierarchy of forms of reparation. Guarantees of nonrepetition have a history in earlier claims practice, but
were not part of recent dispute settlement proceedings until the LaGrand case.
65 SeeSC Res. 216, UN SCOR, 20th Sess., Res. & Dec., at 8, UN Doc. S/INF/20/Rev.1 (1965).
6" See SC Res. 662, supra note 62.
67 See Namibia case, supra note 62, at 56.
s8 For an early description of the conceptual framework of remedial justice, see THE ETHICS OF ARISTOTLE 148-49
(J. A. K. Thompson trans., Baltimore, Penguin 1955).
t Vattel asserted that an offended party has a right to provide for future security and to chastise an offender by
inflicting punishment capable of deterring similar future wrong and "intimidating those who might be tempted to imitate him." EMER DE
VATTEL, THE LAW OF NATIONS, bk. II, ch. IV, ?52 (Joseph Chitty ed., Philadelphia, T. &
J. W.Johnson, 5th ed. 1839). More recently, Garcia-Amador posited that reparations traditionally have included
a compensatory element (restitution or damages) and a punitive one (satisfaction). 2 F. V. GARCLA-AMADOR, THE
CHANGING LAW OF INTERNATIONAL CLAIMS 567 (1984).
70 See, e.g., Louis Kaplow & Steven Shavell, Accuracy in the Assessment of Damages, 39J. L. & E(CON. 191 (1996).
71 See the works cited supra note 22.
for example in environmental cases, where remediation or restoration of the damaged milieu
usually costs much more than compensation for financially assessable harm.72 Restitution
also avoids problems of commodifying certain types of internationally wrongful acts, such
as illegal detention.73
The near absence of deterrence and punishment in considering reparations (they may be implicit in the
provisions on guarantees of nonrepetition andjus cogensviolations) seems
inconsistent with the expressed concern for restoring and upholding the rule of law in the
interest of the international community. Remedies serve social as well as individual needs. Concern for the
larger consequences of an internationally wrongful act may suggest a re-
sponse that will deter the responsible state from repeating the breach and deter others from emulating the conduct.
In this respect, the articles, by limiting themselves to remedial mea-
sures, seem to have missed an opportunity to strengthen measures to promote compliance.
The Principle of Full Reparation
Article 31 sets forth the general rule from Chorzow Factory that the responsible state is
legally and automatically74 obliged to make "full" reparation for any injury, including any mate-
rial or moral damage caused by the wrongful act.75 Article 32 adds that the responsible state cannot invoke its own
law as a basis for failing to provide reparations. The commentary indi-cates that full reparation means that the
responsible state is obliged to wipe out all the con-
sequences of the illegal act by providing one or more forms of reparation as set forth in chap-
ter II.76 The forms of reparation, listed in Article 34 and discussed more fully below, are res-
titution, compensation, and satisfaction, either singly or in combination, accompanied in
appropriate cases by interest.
Compensation is intended only to indemnify quantifiable losses suffered by the injured
state.77 The commentary makes clear that the obligation of full reparation excludes exem-
plary or punitive damages or other awards that would extend beyond remedying the actual harm suffered as a result
of the wrongful act. Quoting the umpire in the Lusitania case, the commentary says that a remedy should be
"commensurate with the loss, so that the injured party may be made whole."78 The stated goal of full reparations
raises numerous problems of determining the financially assessable damage, including loss of profits, which are
discussed in connection with Article 36, on compensation. Overall, however, it can be said that terms
like "full reparation" and "make the injured party whole" do not facilitate decision making by tribunals or claims
practice of parties because they are too general to provide practical
guidance.
72 Environmental components traditionally lack market value and as such may be excluded from compensatory damages. See,
e.g., In re Oil Spill by Amoco Cadiz, No. 78 MDL376 (N.D. Ill. 1988), 1988 U.S. Dist. LEXIS 16832, affd in part, 954 F.2d 1279 (7th Cir.
1992).
73 See SHELTON, supra note 9, at 43, 215.
74 Reparation is thus not contingent upon a demand or protest by any state, although the form of reparation may
be determined by the injured state or states. Commentaries, Art. 31, para. 4.
75 Although the commentary says that "injury" means any damage caused by the wrongful act and thus includes
any material or moral damage caused, the formulation is intended to exclude merely abstract concerns or general
interests of a state. Id., para. 5.
76 Government comments generally expressed approval of the principle of full reparation. Crawford, Third Report,
supra note 25, at 12, para. 22.
77 Both the Inter-American Court of Human Rights and the European Court of Human Rights have rejected
claims for punitive damages under their respective authority to award compensation and 'just satisfaction." See Selcuk
and Asker v. Turkey, 1998-II Eur. Ct. H.R. 891, para. 119; Velasquez Rodriguez, supra note 17, at 52. Claims for
a form of monetary sanction in interstate cases generally appear under the heading of satisfaction. See infra note 96.
78 "Lusitania" Cases (U.S./Ger.), 7 R.I.A.A. 32,39 (1923), quoted in Commentaries, Art. 36, para. 3. "Commensurate" is consistent with the
principle of full reparations. The ordinary meaning of the term is "of the same size, extent, or duration as another," indicating that reparations
should be equal to the harm caused. AMERICAN HERITAGE DIC-
TIONARY OF THE ENGLISH LANGUAGE 380 (3d ed. 1992).
846 THE AMERICANJOURNAL OF INTERNATIONAL LAW[ [Vol. 96:833
The generality of the principle of full reparation is probably inevitable given the wide
variety of international obligations. Clearly, the amount of reparation will vary according to the quantum of
harm. If the right is a procedural one, as in LaGrand, then the remedy may be circumscribed to avoid giving
the state more than it would have obtained had the obliga-tion been fulfilled. The variety indicated leaves
the role of harm in the law of reparations
vague and perhaps raises more problems than it solves.
Causality
The principle of full (and no more) reparations is closely linked to the difficult issue of
causality, tersely addressed in Article 31(2), which provides that reparations are to be made for
"[i]njury . . . caused by the intentionally wrongful act." Causation is a complex issue in every legal
system, where the extent of liability for remote events and the consequences of intervening causes
may vary considerably from one area of the law to another. The articles do not deal with these
complexities, leaving it for courts and practitioners to develop appro-priate tests for different types
of obligations.
The commentary notes that causation in fact does not suffice to entail reparations, because the injury may be
too remote, inconsequential, or indirect for legal causation to be attrib-uted.79 A considerablejurisprudence deals
with the remoteness of damage or proximate cau-sation,80 dating back to the Alabama arbitration.81 The concern
is to allow full compensation for actual material and moral damage while excluding purely speculative claims for
injury too indirect or remote to furnish a basis for imposing liability. The line drawn inevitably de-mands policy
determinations about the reasonableness of expecting an actor to have fore-seen the specific consequences of
the action taken and about which party should most appro-priately bear the loss. It may not be surprising, then,
that the commentary mentions the de-gree of fault ("whether State organs deliberately caused the harm in
question") as an element that can affect the scope or remoteness of harm that will be encompassed by the duty of
reparation, citing a decision of the Iran-United States Claims Tribunal.82 This linking of mo-tivation and scope of
reparations, however, diverges from the overall approach of the articles, which avoids any suggestion that
reparations vary according to the degree of fault; it could be seen as importing a punitive element to
reparations.83 It also seems inconsistent with the notion that fault is part of primary rules.
The failure of the injured party to mitigate damages84 or its contributory fault may also limit the amount of
reparations due.85 Article 39 requires that account be taken in awarding
79 See Selhuk and Asker v. Turkey, supra note 77; United Nations Compensation Commission [UNCC], Well Blowout Control
Claim, UN Doc. S/AC.26/1996/5, reprinted in 109 ILR 480; Silver v. United Kingdom, 67 Eur. Ct.
H.R. (ser. A) (1983); Trail Smelter Case (U.S./Can.), 3 R.I.A.A. 1905,1931 (1938,1941); UNCC, Recommendations
Concerning Individual Claims (Category "B" Claims), UN Doc. S/AC.26/1994/1, reprinted in 34 ILM 265 (1995).
80 See 3 MARJORIE M. WHITEMAN, DAMAGES IN INTERNATIONAL LAW 1765-1875 (1943).
81 1 JOHN BASSETT MOORE, INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY
495-682 (1898).
82 Commentaries, Art. 31, para. 10 (citing Islamic Republic of Iran v. United States of America, Cases No. A
(IV), A24, 32 Iran-U.S. Cl. Trib. Rep. 115 (1998)).
83 While punitive damages are excluded, the gravity of the breach and the responsible state's motivation h
an impact on several aspects of state responsibility, including the scope of the obligations of cessation and rep tion. Id., Art. 33, para. 1.
84 Gabcikovo-Nagymaros Project, supra note 34, at 55, para. 80 (stating that the principle of mitigation mi provide a basis for the
calculation of damages); Well Blowout Control Claim, supra note 79, at 502-03 (noting
"under the general principles of international law relating to mitigation of damages,.. . the Claimant was not o
permitted but indeed obligated to take reasonable steps to ... mitigate the loss, damage or injury being caused 85 In contrast, the contributory
fault of a third party will not reduce the amount of reparations due. Cor Channel (UKv. Alb.),Assessment of the Amount of Compensation,
1949 ICJ REP. 244,250 (Dec. 15). For a shifti
of the burden of proof to the responsible state to prove lack of or reduced causation, see Zafiro Case (Gr. Brit.
v. U.S.), 6 R.I.A.A. 160, 164-65 (1925).
reparations of any material contribution to the damage caused by the willful or negligent act or omission of the injured
state or victim of the breach. The appropriateness of considering contributory fault was recognized in the
LaGrandcase86 and in earlier claims practice.87 This
rule is related to the requirement of a causal link between the wrongful act and the injury, con-
sidering that it would be incompatible with the remedial focus of reparations to require the responsible state to make
compensation for harm caused by the injured state's own conduct.
Guarantees of Nonrepetition and Satisfaction
The articles concerning guarantees of nonrepetition and satisfaction further reflect the remedial character of
reparations. Assurances and guarantees of nonrepetition are included
with cessation in chapter I of part 2, as an aspect of the rule of law affected by the breach,
rather than in chapter II on reparations, because they look to the protection or mainte-nance of the legal
relationship in the future. They are preventive and presuppose a risk of repetition. Satisfaction is included in
chapter II, but it is treated as an exceptional remedy because it was used in the past for punitive purposes and not
to remedy harm done.
Article 30 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."88 The rationale for the limitation is not only the anticipatory nature of the
measures, but also, apparently, abusive state practice.89 States that presumably suffered from such abuse in the past,
however, seem to have raised no opposition to the inclusion of guarantees of nonrepe-
tition in the articles.90

Although guarantees are forward-looking measures focusing on prevention rather than rep-aration of past injury, they
have sometimes been sought and awarded, albeit less often in interstate proceedings than in human rights cases
where they can be seen as important pro-tection for the individual applicant still under the jurisdiction of the violating
state.9' The
risk of repetition is the key element. In the LaGrand case, which some observers might char-acterize as involving
human rights, Germany sought both general and specific assurances and guarantees of nonrepetition from the
United States for the admitted omission of consular notification required by Article 36 of the 1963 Vienna
Convention on Consular Relations. The Court held that the express commitment by the United States to ensure
implementa-tion of measures to comply with Article 36 "must be regarded as meeting Germany's request for a
general assurance of non-repetition."92 As to the specific assurance requested by Ger-many about future
compliance, the Court stated that, should the United States fail to ensure
consular notification in the future, to the detriment of German nationals,
86 LaGrand Case, supra note 15, paras. 57, 116 (noting that had its submission included a claim for indemnifica-
tion, the delay by Germany in asserting that there had been a breach and in instituting proceedings would have
been a relevant factor to consider).
87 See GRAY, supra note 3, at 23.
88 Commentaries, Art. 30, para. 13. Most examples of guarantees are found in historical claims practice concern-ing injury to aliens; the
LaGrand case, in which Germany made extensive use of the draft articles, is the rare mod-
ern case outside the human rights field where guarantees and assurances have been sought and granted.
89 The commentary indicates a desire "to prevent the kinds of abusive or excessive claims which characterized
some demands ... by States in the past." Id., para. 13. The commentary does not cite any examples.
90 See the discussion in Crawford, Third Report, supra note 25, para. 56.
91 In addition to the claim made in the LaGrand case, discussed in the text infra at notes 92-93, guarantees against repetition
were requested by both sides in Gabcikovo-Nagymaros Project, supra note 34, paras. 13, 14. The United States also requested
guarantees, in the form of injunctive relief, in the Trail Smelter case, supra note 79, at 1934. The Inter-American Human Rights
Court is often asked to indicate the necessary measures states must take to guarantee nonrepetition of the violations. See, e.g.,
Olmedo Bustos v. Chile ("Last Temptation of Christ" Case), Inter-Am. Ct. Hum. Rts. (ser. C) No. 73 (2001); Loayza Tamayo, supra
note 16.
92 LaGrand Case, supra note 15, para. 124.
848 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 96:833
an apology would not suffice in cases where the individuals concerned have been sub-jected to prolonged
detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it
would be incumbent upon the United States
to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the
rights set forth in the Convention.93
The German memorial relied heavily on the ILC articles in framing and arguing for its re-quests, putting the articles
before the Court even before they were finalized.
The articles envisage satisfaction, like guarantees of nonrepetition, as an exceptional
remedy to be awarded only in "certain cases."94 Satisfaction may consist of an acknowledgment
of the breach, an expression of regret or apology,95 or "another appropriate modality"96 that is neither disproportionate
nor "humiliating" to the responsible state.97 Like restitution and compensation, satisfaction is intended to restore the
injured state to its preinjury 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.
The line between satisfaction as a remedy and satisfaction as an expression of disapproval or sanction has not
always been clear, and, according to the commentary, it is "not a stan-
dard form of reparation." For this reason, Article 37 obliges the responsible state to give
satisfaction for the injury caused only "insofar as it cannot be made good by restitution or
compensation." Opposition to satisfaction as a remedy seems based on its past misuse to ob-tain concessions from
weaker states, rather than on a lack of state practice.98 The commen-
tary notes that the remedy of satisfaction for nonmaterial injury "is well-established in inter-
national law."99 Certainly, many examples of dispute settlement agreements and other treaties that use the term to
describe the range of reparations may be provided.00?? Moreover, tribu-nals sometimes characterize ajudgment in favor
of the injured party as satisfaction for the wrong that occurred."'1 In the Arrest Warrant case, for example, the DRC
sought and received
w` Id., para. 125; see also id., para. 127, dispositifpara. 128(7). The legal nature of this statement is unclear: it is not
an expression of guarantees of nonrepetition given by the United States, although to the extent that the Court is
foreshadowing future remedies, it may be a deterrent. It falls within the dispositif almost as an alternative future order,
indicating that should a similar situation arise, the United States must give consular notice or afford this specific
remedy. To that extent, it may meet the objectives of Germany in seeking to protect its nationals from violations of the Convention and thus
generally fall within the notion of assurances and guarantees of nonrepetition, but it seems
to anticipate a remedy for a breach that has not yet occurred and to come close to being an advisory opinion.
"4 Commentaries, Art. 34, para. 2.
15 Apologies are often demanded or offered when a state has committed a breach of international law. See, e.g.,
LaGrand Case (Ger. v. U.S.), Provisional Measures, 1999 ICJ REP. 9 (Mar. 3) ;Vienna Convention on Consular Rela-
tions (Para. v. U.S.), Provisional Measures, 1998 ICJ REP. 248 (Apr. 9); Rainbow Warrior, supra note 36; S.S. "I'm
Alone" (Can./U.S.), 3 R.I.A.A. 1609 (1935).
9"b Art. 37(2). Indeed, money is often awarded in satisfaction or investigation ordered to identify and prosecute the individual or individuals
who committed the wrong. See, e.g., Rainbow Warrior, supra note 36; S.S. "I'm Alone," supra note 95.
97 Art. 37(3).
,x Commentaries, Art. 37, para. 2, and examples given at para. 8.
w' Id., para. 4.
"' See, e.g., European Convention for the Peaceful Settlement of Disputes, Apr. 29,1957, Art. 30,320 UNTS 243;
European Convention on the Protection of Human Rights and Fundamental Freedoms, Nov. 4,1950, Art. 41,213
UNTS 221, as renumbered by Protocol No. 11, May 11, 1994, 33 ILM 943 (1994); Revised General Act for the
Pacific Settlement of Disputes, Apr. 23, 1949, Art. 32, 72 UNTS 101.
101 In the Rainbow Warrior arbitration, the tribunal noted:
There is a long established practice of States and international Courts and Tribunals of using satisfaction as
a remedy or form of reparation (in the wide sense) for the breach of an international obligation. This prac-tice relates particularly to the
case of moral or legal damage done directly to the State, especially as opposed to the case of damage to persons involving international
responsibilities.
Rainbow Warrior, supra note 36, at 272-73; see also Arrest Warrant, supra note 19 (finding by the Court of inter-national responsibility deemed
satisfaction for the moral injury suffered by the Congo); Corfu Channel, supra note 16, at 35, 36 (finding the declaration of a violation in itself
appropriate satisfaction).
"a formal finding by the Court of the unlawfulness of that act" as "an appropriate form of satisfaction, providing reparation
for the consequent moral injury to the DRC."'02 Thus, the
articles' use of the term "satisfaction" in the narrow sense may not fully reflect state practice.
In sum, the treatment of compensation, assurances and guarantees of nonrepetition, and
satisfaction in the articles reflects a fairly consistent approach of limiting reparations to those
necessary to eliminate the injury caused by the wrongful act. The more general concern of the international community
as a whole to uphold the rule of law, discussed above, does not extend to allowing the injured state to request measures
to punish the violation or deter the responsible state from further wrongful acts.
V. FULL REPARATIONS OR EQUITABLE REMEDIES?
Chapter II indicates a hierarchy among the different forms of reparation and also subjects
each one to conditions and limitations, although the overall requirement remains one of full reparation for the
breach. The articles are apparently designed to provide clarity an
predictable norms and yet to allow parties to a dispute and courts hearing it the flexibility to shape the remedies to the
circumstances of the case. In general, however, it is for the in-jured state to elect among the various forms of reparation and
to identify and quantify losses. Given the many variables that can arise in practice, this result is probably inevitable; in some
circumstances restitution or compensation103 will not be sought by the injured party and res titution would be inappropriate
as a remedy.104 It probably also helps explain why cessation
and other matters of general concern were taken out of the chapter on reparations and
made general obligations of the responsible state. Otherwise, the injured state could waive cessation in lieu of
compensation or another remedy.
Restitution
Restitution is defined in Article 35 as reestablishing "the situation which existed before the wrongful act was
committed." It is the first form of reparation and, if requested by the
injured state, 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 compen-
sation." While Article 35 reflects the primacy of restitution based on the Chorz6w Factory case105
and other precedents,106 modern claims practice often centers on compensation because some
cases involve seizure of property with market value, breaches of contract, and similar economic
issues, where compensation is the normal remedy. The recent LaGrand and Arrest Warrant
102 Arrest Warrant, supra note 19, para. 11.

103 In the LaGrand case, Germany chose not to pursue its right to financial compensation, stating that its aim
in lodging the proceedings was to ensure that German nationals will be provided with adequate consular assistance
in the future, and not to receive material reparation. It cited the arbitral decision in the Rainbow Warrior case as
precedent, wherein the tribunal stated:
The Tribunal... considers that an order for the payment of monetary compensation can be made in respect
of the breach of international obligations ....
... New Zealand has not however requested the award of monetary compensation .... The Tribunal can
understand that position in terms of an assessment made by a State of its dignity and its sovereign rights.
Rainbow Warrior, supra note 36, at 272.

104 Restitution involves restoring the situation that the primary obligation sought to ensure. Applied to breach of a treaty, restitution may
not be easy to implement because the breach may well strain the continued existence
of the agreement. Indeed, the Vienna Convention on the Law of Treaties allows the injured party to denounce
a treaty when there is a material breach. In other instances, as occurred in the Gabeikovo-Nagymaros case, some sort of renegotiation or
reinterpretation may be necessary.
10(5 Chorz6w Factory, Indemnity, supra note 8, at 47.
10116 See, e.g., Temple of Preah Vihear (Cambodia v. Thail.), 1962 ICJ REP. 6 (June 15); Texas Overseas Petroleum
Co. v. Libya, 53 ILR 389 (1977) (Dupuy, sole arbitrator); British Petroleum Exploration Co. v. Libya, 53 ILR 297 (1974) (Lagergren,
sole arbitrator).
850
THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 96:833
cases demonstrate, however, that restitution and cessation continue to play an important role
in cases concerning matters other than trade or investment.
Several elements in the article develop the law or settle conflicting practice. The definition
of restitution itself has been uncertain, as some decisions have referred to the reestablishment
of the status quo ante, and others to the situation that would have existed if the wrongful act had not been
committed.107 Article 35 adopts the narrower definition, leaving consequences subsequent to the time of the
breach to be determined by compensation, including interest.
The date chosen to assess the damages flows from the definition and can have significant
consequences on claims, especially in tribunals that are skeptical of claims of lost profits.108 The
approach taken conforms with a generally conservative approach to reparations for an injured party.
The grounds for not granting restitution have been widened to allow greater flexibility
within the goal of full reparations. The PCIJ referred to the "impossibility" of restitution as
the basis for substituting compensation,109 while Article 35 adds a proportionality test except,
it would seem, in case of a breach of a peremptory norm"0 or a continuing violation where cessation and
restitution may be coextensive. The commentary refers to "impracticability"
as well as impossibility of restitution, and establishes a cost-benefit analysis to determine when
restitution would place a burden "out of all proportion" on the responsible state, although
"with a preference for the position of the injured State in any case where the balancing pro-cess does not
indicate a clear preference for compensation as compared with restitution."'1
The only instance where the balance seems "invariably" to favor restitution is when the failure to provide
it wouldjeopardize the political independence or economic stability of the injured state."1' In contrast, the
adopted articles omit a provision that was contained in prior drafts, to the effect that reparation must not
"result in depriving a population of a State of its own means of subsistence."113 The Commission and
governments were divided over the appropriateness of the proposal and the rapporteur could find no history
of orders for resti-tution or the award of damages by way of satisfaction that threatened to deprive a people
of its own means of subsistence; moreover, this situation was thought unlikely to arise in prac-tice. Thus,
the provision was dropped.
The disproportionality test of Article 35 is likely to generate more disputes than the for-mer test of
impossibility, but it also seems more consistent with recent state practice, which
approaches the issue of restitution with some flexibility. In Gabcikovo-Nagymaros Project, the ICJ said it was
open to the parties to agree that Hungary was not required to build the part of the system it had failed to
build, while Slovakia should conform its operation of the project it
had built to the requirements of the Treaty. In addition, offsetting compensation was afforded
to each side for the breach of the other party."4 The Court indicated that its flexibility con-cerning
reparations resulted from the factual situation, noting specifically that it could not
107 The ICJ continues to quote and apply the Chorzow Factory formulation, which refers to the situation that
"would have existed" if there had been no breach. See, e.g., Gabcikovo-Nagymaros Project, supra note 34, para. 149. 108 For an
issue of expropriation, for example, restitution of the status quo ante looks to restoring the property
as it existed and was valued on the date of the taking, with lost profits and other consequential damages pleaded under the
heading of compensation not as a matter of restitution. Restitution of the situation that "would have existed" undertakes a
present value of the loss, including provable lost profits up to the date of the judgment.
109 Chorz6w Factory, Indemnity, supra note 8, at 48.
110 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.
m Commentaries, Art. 35, paras. 4, 11.
112 Id., para. 11. An example might be the illegal annexation of territory containing the injured state's sole
source of freshwater.
13 Art. 42(3); see Crawford, Third Report, supra note 25, paras. 38-39.
114 GabUckovo-Nagymaros Project, supra note 34, para. 150.
disregard that the Treaty had not been fully implemented by either party for years, which had thus contributed to
creating "the irregular state of affairs."115
Compensation
Where restitution is not provided or does not fully eliminate the consequences of the
harm, the state responsible must compensate for any financially assessable damage, includ-
ing loss of profits, that its wrongful act caused the injured state or its nationals.16 Prior prac-tice
firmly supports this rule.17 In the case of the Gabcikovo-Nagymaros Project, for example,
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.""8
Future litigation will undoubtedly wrestle with the scope of damages, particularly the defi-nition of
"material" damage to property or other interests of the state and its nationals that
are "assessable in financial terms.""9 The concept of financially assessable damage is an
evolving one, because the determination whether something is "capable of being evaluated
in financial terms" shifts as markets develop and economic analysis designs new methods of
valuation.120 While there is considerable international jurisprudence on some headings of
damages, litigants and judges are also likely to turn to comparative law, and economic theory
and practice, to determine what other claims are capable of being financially assessed, be-cause
new issues often develop in doctrine and national practice before being presented to
an international tribunal.
The rules themselves are very concise on the issue of compensation. Although the st
goal is full reparation, the commentary suggests that it may take different forms accordin
what is appropriate in the particular case, in order to ensure compliance with internationa law by the responsible state while
affordingjustice to any injured state. The commentary several articles makes clear that the notion of proportionality or
equity'2' plays a role wit spect to the different forms of reparation, including compensation.'22 The commentary t Article 36
itself states that the appropriate heads of compensable damage and the principle of assessment to be applied in
quantification will vary, "depending upon the content of pa ticular primary obligations, an evaluation of the respective
behaviour of the parties and,
generally, a concern to reach an equitable and acceptable outcome. "123

The extent to which a court may adhere to a strict hierarchical approach to reparations and require full
compensation for all assessable injuries not redressed by restitution-as op-
posed to reserving some matters for nonmonetary satisfaction-may depend not only upon
the factors cited in the commentary, but upon whether the court in question views its primary
115 Id., para. 133.

116 Art. 36. The commentary to Article 36 specifies in paragraph 1 that compensation is intended to exclude
moral damage to a state, which is the subject matter of satisfaction and is dealt with in Article 37.
117 See, e.g., Chorz6w Factory, Indemnity, supra note 8, at 47; Corfu Channel case, supra note 16.
118 Gabcikovo-Nagymaros Project, supra note 34, para. 152.
119 Many key questions are not, and probably could not be, answered in rules of a general character. Interest is an example.
The circumstances under which simple, compound, or no interest may be appropriately awarded
are very difficult to specify in advance of particular cases.
120 "Green accounting," for example, is creating methods to measure the value of ecological components, such as honey
bees or clean air. In the Loayza Tamayo case, supra note 16, the Inter-American Court of Human Rights
held that an individual's "life plan" (proyecto de vida) was an appropriate heading of damage that could be compen-
sated once the Court was presented with a method for assessing its value.
121 On the role of equity at the ICJ, see Weil, supra note 29.
122 Commentaries, Art. 31, para. 14; Art. 35(b), paras. 7-11; Art. 37(3), para. 8; Art. 39, para. 2.
123 Id., Art. 36, para. 7.
852 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 96:833
role as inducing compliance with a legal regime,124 deciding cases, or settling disputes.'25
Settling a dispute in a manner that lessens the likelihood of future conflicts or disputes be-tween the parties may or
may not conform with the goal of full reparations for the injured state, but some international tribunals may consider
it as important a value as upholding the
international rule of law, and as more important than ensuring fulfillment of all claims of rep-
arations. While the articles constrain discretion, they do not eliminate it.
Although the articles provide only general guidance on the assessment of compensation,
the commentary includes an important and comprehensive discussion of precedents indicat-ing the range of
compensable losses, headings of damage, and methods of quantification.12" Many legal advisers and practitioners
will find this analysis particularly useful in illustrating developments and variations in the awards of compensation.
Replacement costs for destroyed property, costs of repairing damaged property, and lost profits are all discussed,
as are the
kinds of harm that are more difficult to measure financially, such as loss of life, arbitrary de-
tention and other personal injury, and environmental damage. Prior practice demonstrates
that these losses, while difficult to quantify, are nonetheless financially assessable.'27 The com-
mentary approvingly cites the formula Umpire Parker used in the Lusitania cases to calcu-late damages for
wrongful death'28 and refers to the use of per diem amounts to compensate
for unlawful detention.129 The formula for compensating for wrongful death has been utilized
as the basis of both human rights and diplomatic protection claims.13"
In its analysis of property claims, the commentary reflects the global triumph of Western
market economies. It seems clear that the lack of a viable alternative economic model and the
growingjurisprudence of tribunals such as the Iran-U.S. Claims Tribunal, the UN Com

sation Commission, and human rights bodies have helped build a more coherent framework for the
assessment of compensation for property losses. The commentary notes that awards for property claims are
based upon general principles that help to assess " (i) compensation
for capital value, (ii) compensation for loss of profits, and (iii) incidental expenses."'3' The
commentary finds that "fair market value" is the method most generally used to determine
124 Human rights tribunals typically see this as their primary function and compensate for injuries on an equi-
table basis.
125 In his Third Report, Crawford refers to the problem of discretion and the considerable flexibility shown
international courts and tribunals in dealing with reparations. He views the Rainbow Warrior arbitration as "a case where this flexibility
almost went to the point of infringing the ne ultra petita principle." Crawford, Third Report,
para. 7(3) & n.17.
1211 Commentaries, Art. 36, paras. 8-34.
127 The commentary refers to the Lusitania cases as an example where compensable personal injury included
material losses such as lost earnings and earning capacity, medical expenses, and other pecuniary harm, and non-material damage
such as loss of consortium, pain and suffering, humiliation, and dignitary losses resulting from
loss of reputation or credit. "Lusitania" Cases, supra note 78, at 40. Moral injury is also compensated by human
rights tribunals and was included in the M/V "Saiga" case, supra note 6, to compensate for the injury to the crew,
and their unlawful arrest, detention, and other forms of ill treatment.
128 In the Lusitania cases, Umpire Parker called for estimating
the amounts (a) which the decedent, had he not been killed, would probably have contributed to the claim-
ant, add [ing] thereto (b) the pecuniary value to such claimant of the deceased's personal services in claimant's care, education,
or supervision, and also add[ing] (c) reasonable compensation for such mental suffering
or shock, if any, caused by the violent severing of family ties, as claimant may actually have sustained by reason of such death. The sum
of these estimates reduced to its present cash value, will generally represent the loss sustained by claimant.
"Lusitania" Cases, supra note 78, at 35.

129 E.g., Faulkner Case (Mex./U.S.), 4 R.I.A.A. 67, 71 (1926); Topaze Case (Gr. Brit. v. Venez.), 9 R.I.A.A. 3
389 (1903). Such amounts are usually increased where conditions of confinement are abusive. McNeill (Gr. Brit
Mex.), 5 R.I.A.A. 164, 168 (1931).
130 See, for example, the claims presented to and accepted by the Inter-American Court of Human Right Aloeboetoe, Reparations, Inter-
Am. Ct. Hum. Rts. (ser. C) No. 15 (1993). As the ILC commentary notes, the d
sions of human rights bodies on compensation draw on principles of reparation under general international law.
Commentaries, Art. 36, para. 19; see also SHELTON, supra note 9, chs. 8, 9.
1l1 Commentaries, Art. 36, para. 21.
the capital value of property taken or destroyed, but notes that fair market value can be de-
termined by various means, especially where the property interests are unique or unusual. Alternative
valuation methods are also discussed and precedents using them are cited: net book value, liquidation or
dissolution value, and discounted cash flow are all mentioned,
with some helpful indication of the circumstances that might favor use of one method over another. The articles
also make clear that lost profits are not necessarily to be compensated
for, but such awards may be made where appropriate. Lost-profits claims may be excluded
when too speculative or not sufficiently established as reflecting a legally protected interest.'32
Reasonably incurred incidental expenses are also compensable.'33
Interest
Article 38 provides that 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.'34 The "neces-sity" test
seems stringent, but an argument could be made that interest is normally necessary
to ensure full reparations because of the lost value of money over time. The commentary notes
the extensive practice supporting the award of interest. It cites in particular the jurispru-dence of
the Iran-United States Claims Tribunal in considering claims for interest, noting that it and other
tribunals have found that their general jurisdiction over claims includes
the inherent power to award interest.'35 Decision 16 of the Governing Council of the United Nations
Compensation Commission'36 also allows for awards of interest and such awards are
common in human rights tribunals.'37
Article 38 further indicates that interest is to run from the date when the principal sum should have
been paid until the date the obligation to pay is fulfilled,138 but without setting forth any elements by
which this issue could be determined. The commentary rightly notes
that the actual calculation of interest
raises a complex of issues concerning the starting date (date of breach, date on which payment should
have been made, date of claim or demand), the terminal date (date of settlement agreement or award,
date of actual payment) as well as the applicable inter-est rate (rate current in the respondent State, in the
applicant State, international lend-
ing rates).139
Rather than attempt to set forth more detailed rules or guidelines, the article unhelpfully leaves the determination
of interest to the discretion of the parties and the respective tribu-
nals in each case.
VI. CONCLUSION
The importance of the ILC articles on reparations lies in the paucity of useful interna-tional precedents on the
topic and the essentiality of reparations to the settlement of disputes
132 See, e.g., Oscar Chinn Case, 1934 PCIJ (ser. A/B) No. 63, at 65.
134 The commentary does find that practice is against the award of compound interest, while noting some views
to the contrary. Id., Art. 38, paras. 8-9. For a summary of international precedents denying compound interest,
see McKesson Corp. v. Iran, 116 F.Supp. 13, 41 (D.D.C. 2000).
135 See, e.g., S.S. "Wimbledon" (Ger. v. UK, Fr., Italy,Japan), 1923 PCIJ (ser. A) No. 1, at 32 (Aug. 17); M/V "Saiga,"
supra note 6, para. 173; Iran v. United States (Case A-19), 16 Iran-U.S. Cl. Trib. Rep. 285, 289-90 (1987).
'36 UNCC, Awards of Interest, Decision No. 16, UN Doc. S/AC.26/1991/16, reprinted in 34 ILM 247 (1995). 137 See, e.g.,
Papamichalopoulos v. Greece, supra note 18, para. 39; Velasquez Rodriguez, supra note 17, para. 57;
see also SHELTON, supra note 9, at 270-72.
138 In the Wimbledon case, the Court determined that 6% interest should run not from the day the wrong oc-curred, but only from the date of
theJudgment, when reparations were ordered and an amount fixed. S.S. "Wim-
bledon," supra note 135, at 32. The ILC draft articles take no position on the award of postjudgment interest,
leaving that to the rules of procedure of each court or tribunal.
139 Commentaries, Art. 38, para. 10 (footnote omitted).
854 THE AMERICANJOURNAL OF INTERNATIONAL LAW [Vol. 96:833
and international legality. The PCIJ noted that even a declaratoryjudgment alone 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 i
so far as the legal effects ensuing therefrom are concerned."'40
While thus important, the articles and commentary nonetheless leave various questions
to be settled by future negotiation or litigation. In addition to those discussed above, other extremely important matters
that affect the award of reparations are not discussed in the
articles. Rules of evidence, in particular, are crucial, especially concerning the burden an standard of proof required
to obtain compensation for claimed losses.141 Further, as men tioned above, the articles do not attempt to
determine what damage is in fact "financiall assessable"-the commentary rather tautologically defines it as "any
damage which is capa
ble of being evaluated in financial terms"-nor do the articles indicate how intangible losses
should be quantified.
The articles also fail to address the potential problem of balancing the interests of the in-
ternational community and the interests of the injured state or states. These interests may not
always be compatible and served by applying the same reparations rules. The internationa
interest in the sanctity of treaties, for example, may call for maintaining a breached agree-
ment and insisting on performance, but this course of action may not resolve the disput
between the parties and may even exacerbate it. The law of contracts has long recognized that the remedy of specific
performance is exceptional because it is neither just nor efficient to require performance in many cases. International
human rights law has recently encoun-
tered, and sometimes been unable to resolve, conflicts between the interests of the interna-
tional or national community in inducing present and future compliance (reconciliation)
and the claims of those who have been injured by past violations.142 Similar problems could arise in interstate
cases, but the articles do not take up the issue.
Despite these gaps, some of which are inherent in the scope of the subject matter treated, the articles advance a
few aspects of the law of reparations and confirm many others. Codi-fying a traditional approach to the purpose of
reparations, they insist on their remedial na-ture. More progressively, the articles indicate the importance of restoring
compliance with the international obligation breached by the responsible state. The most far-reaching propo-sals
support the concept of peremptory norms, devise consequences for breaching them, and affirm the role of the
international community as a whole in matters of state responsibility.
The articles thus provide some guidance to tribunals and states on the law of reparations. The significance of the
entire project, however, seems to have suffered owing to a shift away from the traditional law of state responsibility
during the nearly forty years it took to com-plete the articles. Interstate issues of compliance and breach are
increasingly handled through nonconfrontational procedures within international organizations 43 and treaty bodies.
The rise of such nonadversarial compliance procedures seems to have brought a corresponding decline in recourse to
the law of state responsibility.
The shift to compliance mechanisms from enforcement procedures is seen especially in

the environmental field.144 The Trail Smelte'45 arbitration is almost alone today in being cited
140 Interpretation ofJudgments Nos. 7 and 8 [Chorz6w Factory], 1927 PCIJ (ser. A) No. 13, at 20 (Dec. 16).
141 The high threshold of proof required in the European Court of Human Rights has limited or eliminated the
award of compensation in a large number of cases. SHELTON, supra note 9, at 231-61.
142 See IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAWAND PRACTICE (Naomi Roht-Arriaza ed., 1995); TRAN-
SITIONALJUSTICE: HOW EMERGING DEMOCRACIES RECKON WITH FORMER REGIMES (Neil J. Kritz ed., 3 vols. 1995).
143 The UN Secretary-General's office is frequently engaged in the "informal" forms of peaceful dispute settle-ment enumerated in Article
33 of the UN Charter. See generally Thomas M. Franck & Georg Nolte, The Good Offices
Function of the UNSecretary-General, in UNITED NATIONS, DMDED WORLD 143 (Adam Roberts & Benedict Kingsburv
eds., 2d ed. 1993).
144 Francesco Francioni, Dispute Avoidance in InternationalEnvironmental Law, in ECONOMIC GLOBALIZATION ANI)
COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL AGREEMENTS (forthcoming 2003).
141 Trail Smelter Case, supra note 79.
for state responsibility and reparations in the field of environmental protection, because vir-
tually no interstate cases have been brought in the decades since it was decided.'46 Increasingly,
compliance procedures are centered on promoting changes in state behavior rather than
sanctioning breaches of international obligations.147 Environmental agreements, in particu-lar, focus on transparency
and positive incentives rather than coercive measures, while most global human rights agreements utilize state reporting
and "constructive dialogue" as means
to encourage compliance.
From the perspective of compliance, a key question is whether or not litigation is effective as compared to "softer"
mechanisms of reporting and positive inducements. Recently, "mana-gerial" regimes have been promoted as more
effective than traditional adversarial processes.14
Antonia and Abram Chayes assert that compliance is furthered through processes that in
volve norm assent, transparency, reporting, monitoring, capacity building, and review proce-dures.'49 Others similarly argue
that persuasion, not coercion, best stimulates compliance.150 Yet remedies are important for injured parties, especially
individuals and business entities. Those actually harmed by breaches of international law seek redress, efficiency,
fairness,'51
and predictability of future conduct, as well as compliance. In this respect, it is significant that
the number of international tribunals has increased alongside compliance mechanisms.152 In the decade between
1989 and 1999, almost a dozen internationaljudicial bodies became active or were extensively reformed,'53 bringing
into effect some seventeen internationa judicial bodies and thirty-seven quasi-judicial bodies.'54 This proliferation
has been couple
with an increase in international litigation between states and nonstate actors. The caseload
146 In the aftermath of the accident at the Chernobyl nuclear plant in the Ukraine, no international claims were brought for the transboundary harm
that resulted. ALEXANDRE KISS & DINAH SHELTON, INTERNATIONAL ENVI-RONMENTAL LAW 551-52 (2d ed. 2000); Linda A. Malone, The
Chernobyl Accident: A Case Study in International Law Regulating State Responsibility for Transboundary Nuclear Pollution, 12 COLUM.J. ENVTL. L.
203 (1987). The absenc
of environmental claims is due to a number of factors: lack of clear primary rules on duty of care (role of fault
concerning transboundary environmental harm; difficulty of proving a causal connection between the activity and the injury; the length of time between
the conduct and the emergence of injury; state reluctance to assume respon
sibility for the conduct of nonstate actors; the enormous cost and often impossibility of restitution or environ-
mental remediation; and lack of agreement on how to assess ecological harm economically. See, e.g., KIss & SHELTON supra, at 605-20.
147 See COMMITMENT AND COMPLIANCE (Dinah Shelton ed., 2000); COMPLIANCE WITH INTERNATIONAL ENVIRON-
MENTAL AGREEMENTS (Edith Brown Weiss & Harold K. Jacobson eds., 1996); THE IMPLEMENTATION AND EFFEC-
TIVENESSOF INTERNATIONALENVIRONMENTAL COMMITMENTS: THEORYAND PRACTICE (David G. Victor, Kal Raustiala,
& Eugene B. Skolnikoff eds., 1998); Jose E. Alvarez, Why Nations Behave, 19 MICH.J. INT'L L. 202 (1998); Harold
Hongju Koh, Why Do Nations Obey International Law? 106 YALE LJ. 2599 (1997). On the debate about compliance mechanisms in the human
rights field, see Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 YALE L.J. 273 (1997); HenryJ.
Steiner, Individual Claims in a World of Massive Viola tions: What Role for the Human Rights Committee? in THE FUTURE OF UN HUMAN RIGHTS TREATY
MONITORING 15
(Philip Alston &James Crawford eds., 2000). Concerning WTO dispute settlement processes, seeJohn A. Ragosta, Unmasking the WTO-Access
to the DSB System: Can the WTO DSB Live up to the Moniker "World Trade Court"? 31 L. & POL'YINT'LBus. 739 (2000) ;Joel P. Trachtman, Bananas,
DirectEffect and Compliance, 10EUR.J. INT'LL. 655 (1999); Edith Brown Weiss, StrengtheningNational Compliance with Trade Law: Insights from Environment,
in NEW DIRECTIONS IN INTERNATIONAL ECONOMIC LAW: ESSAYS IN HONOUR OFJOHN H.JACKSON 457 (Marco Bronckers & Reinhard
Quick eds., 2000).

148 See, e.g., Robin R. Churchill & Geir Ulfstein, Autonomous InstitutionalArrangements in MultilateralEnvironmental
Agreements: A Little-Noticed Phenomenon in International Law, 94 AJIL 623 (2000); StephenJ. Toope, EmergingPatterns of Governance and
International Law, in THE ROLE OF LAW IN INTERNATIONAL POLITICS 91 (Michael Byers ed., 2000); see also ABRAM CHAYES & ANTONIA
HANDLER CHAYES, THE NEW SOVEREIGNTY (1995).
149 CHAYES & CHAYES, supra note 148, at 30.
150 Steve Charnovitz, Rethinking WTO Trade Sanctions, 95 AJIL 792 (2001); Richard Cooper, Trade and the Environ-ment, 5 ENV'T &
DEV. ECON. 501 (2000).
151 Concerning fairness in international governance, see THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW
AND INSTITUTIONS (1995). In the context of WTO dispute settlement, see Steve Charnovitz, Triangulating the World
Trade Organization, 96 AJIL 28, 39-43 (2002).
152 Cesare P. R. Romano, The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U.J. INT'L
L.& POL. 709 (1999).
153 Id. at 709.
154 See id. at 709-10.
856
of all human rights courts and quasi-judicial bodies is increasing, 55 as are international arbi-trations
between economic actors and states. Probably the largest recent practice on remedies involves the claims
of states and nonstate actors before the UN Compensation Commission, a body whose expedited
procedures are based on U.S. mass tort litigation156 and whose sole
function is to determine reparations.
Two complementary, if not competing, modes of legal action thus emerge and find echoes in the two
themes of the articles: enhancing the compliance interest of the international com-munity and providing
reparations to injured parties. It would be wrong to see the develop-ment of compliance mechanisms as a
complete substitute for adversarial processes that allow
injured parties to obtain reparation. Unredressed grievances, whether held by individuals,
business entities, or states, not only constitute injustices in any system of law, but may lead to future
conflicts of even greater scope and duration. The articles on reparations highlight
the need to identify the means to satisfy injured parties while ensuring the international com-
munity's interest in promoting compliance. Decades of work have produced few answers and
many more questions.
155 During 2001, the European Court of Human Rights alone registered 13,858 cases, some 2200 more than
during the entire first thirty years of operation of the European Convention on Human Rights; the same year the
Court issued one third of the total number ofjudgments rendered since it was created. European Court of Human Rights,
Survey of Activities 2001, at 29 (Council of Europe, 2002), available at <http://www.echr.coe.int/Eng/
InfoNotesAndSurveys.htm>.
156 See, e.g., DavidJ. Bederman, The United Nations Compensation Commission and the Tradition of International Claims
Settlement, 27 N.Y.U.J. INT'L L. & POL. 1 (1994).

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Righting Wrongs: Reparations in the Articles on State Responsibility

Author(s): Dinah Shelton

*Professor of Law, University of Notre Dame.

I. REMEDIES IN INTERNATIONAL LAW

These interrelated principles-that an international delict generates an obligation of rep-

II. AN OVERVIEW OF THE ARTICLES ON REPARATIONS

The consequences of a breach of international law have been considered generally to

Cessation of a Wrongful Act

of nonrepetition were considered a form of satisfaction, a remedy available to the injured

32 Commentary to pt. 2, ch. I, General Principles, para. 1.

Serious Breaches of Peremptory Norms

55 Commentaries, Art. 40, para. 2.

60 Commentaries, Art. 40, para. 3.

as it aims at strengthening existing mechanisms of cooperation.4 The core requirement of

IV. THE REMEDIAL PURPOSE OF REPARATIONS

imposing appropriate costs for breaches of international obligations.70 Restorative justi

The Principle of Full Reparation

Guarantees of Nonrepetition and Satisfaction

tition in the articles.90

consular notification in the future, to the detriment of German nationals,

V. FULL REPARATIONS OR EQUITABLE REMEDIES?

102 Arrest Warrant, supra note 19, para. 11.

Rainbow Warrior, supra note 36, at 272.

generally, a concern to reach an equitable and acceptable outcome. "123

115 Id., para. 133.

growingjurisprudence of tribunals such as the Iran-U.S. Claims Tribunal, the UN Com

"Lusitania" Cases, supra note 78, at 35.

The shift to compliance mechanisms from enforcement procedures is seen especially in

Quick eds., 2000).

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