1 1Institute of Public International Law and International Relations, University of Vienna, Austria The author wishes to express his gratitude to Professor Karl Zemanek for his valuable comments on an earlier draft. The author also wishes to thank his colleagues, in particular Markus Reiterer and Konrad Bühler, for their helpful comments and suggestions.
Reuter, Principes de droit international public, 103 RdC 425, 596 ( 1961-Il). 2 Schwarzenberger, The Problem of an International Criminal Law, 3 CLP 263 (1950). 3 Ibid., at 264-74. 4 Oehler, Criminal law, International, in EPIL, Vol. I, 877 (R.Bernhardt ed. 1992). 5 Cf. in this respect Ch.Bassiouni, Crimes against Humanity in International Criminal Law 45-7 ( 1992).
6 See draft Article 19, YILC 1976, Vol. II, Part Two, 95-6. 7 See e.g. Oppenheim's International Law, Vol. I, 533-6 § 157 (Jennings/Watts eds., 9th ed. 1992). 8 The draft Articles on State responsibility, with new successive numbering, are re- produced in the Report of the ILC on the work of its forty-eighth session 6 May- 26 July 1996, Chapter III, GAOR - Fifty-first Session Suppl.No.10 (A/51/10), URL: http://www.un.org/law/ilc/chap03.html. Art. 45 reads as follows: 1. The injured State is entitled to obtain from the State which has committed an internationally wrongful act satisfaction for the damage, in particular moral damage, caused by that act, if and to the extent necessary to provide full reparation. 2. Satisfaction may take the form of one or more of the following: a. an apology; b. nominal damages; c. in cases of gross infringement of the rights of the injured State, damages reflecting the gravity of the infringement; d. in cases where the internationally wrongful act arose from the serious misconduct of of- ficials or from criminal conduct of officials or private parties, disciplinary action against, or punishment of, those responsible. 3. The right of the injured State to obtain satisfaction does not justify demands which would impair the dignity of the State which has committed the internationally wrongful act. 9 Second Report on State Responsibility, by Mr. Gaetano Arangio-Ruiz, Special Rappor- teur, U.N. Doc. A/CN.4/425 and Add.l*, YILC 1989, Vol. II, Part One [hereinafter Second Report], 1. 10 Commentary to Article 10, Report of the International Law Commission on the work of its forty-fifth session, G.A.O.R. 48th sess. Suppl.No.10 (A/48/10), YILC 1993, Vol. II, Part Two, 34.
11 Report of the ILC on the work of its forty-second session, YILC 1990, Vol. II, Part Two, at 68. 12 There are only two short references in this respect, which, however, exclude international crimes from any further consideration of the topic of punitive damages ("not to mention crimes for the time being"), Second Report, supra note 9, at 40 note 346 and at 42 para. 145. 13 Summary records of the forty-second session, YILC 1990, Vol. I, 154 para. 37 (Jaco- vides), 170 para. 22 (Barsegov), 178 para. 14 (Al-Khasawneh), 180 para. 39 (Pellet), 187 para. 12 (Pawlak) and Report of the ILC on the work of its forty-second session, supra note 11, at 80 para. 397.
14 Second Report, supra note 9, at 3 para. 4. 15 See e.g. B.Bollecker-Stern, Le prejudice dans la theorie de la responsabilite interna- tionale 31-5 (1973); Wolf, Gibt es im Volkerrecht einen einheitlichen Schadensbegriff? 49 ZaoRV 403, 415-6 and 432�2 (1989). 16 This distinction is further blurred by the fact that both forms of injury entail the same consequence, i.e. satisfaction. 17 This goes along with the generally accepted perception that damage is not a distinct condition for the existence of an internationally wrongful act since "any breach of an oblig- ation towards another State involves some kind of injury to that other State", Report of the ILC on the work of its twenty-fifth session, YILC 1973, Vol. II, 161, 183 para. 12. See also Zemanek, La responsabilite des Etats pour faits internationalement illicites, ainsi que pour faits internationalement licites, in Responsabilite internationale, 3, 24-5 (P. Weil ed. 1987). 18 This is also proposed by Tanzi, Is Damage a Distinct Condition for the Existence of an Internationally Wrongful Act?, in United Nations Codification of State Responsibility, 1, 9-10 (M. Spinedi/B. Simma eds. 1987). 19 Cf. e.g. the confusing use of these terms in the Second Report, supra note 9, at para. 54. In the following, the terms "moral damage'' and "immaterial damage" are used synonymously unless indicated otherwise. Sometimes, "moral damages" in a very non-technical sense are confused with "damages for moral injury" Thus, the Borchgrave case is taken as a "legal precedent in favor of awarding an indemnity for moral damage suffered as a result of a wrong- ful act contrary to international law'' See Wexler, The Rainbow Warrior Affair: State and Agent Responsibility for Authorized Violations of International Law, 5 BostonUlLJ 389, 406
(1987). In the Borchgrave case, Spain offered to pay one million Belgian francs to Belgium for the death of Baron Jacques de Borchgrave. After the parties had signed a compromis to submit the case to the Permanent Court of International Justice, Spain in fact paid this sum to Belgium. See Friede, Urteil des Standigen Intemationalen Gerichtshofes vom 6. November 1937 in dem belgiscb-spanischen Streit uber den Fall Borchgrave, 8 ZaoRV 172, 173 (1938). However, the sum was explicitly designated to the heirs of Baron Borchgrave and not to Belgium. See the oral pleadings by Spain, Expose de M.Sknchez Romcin, P.C.I.J. Ser. C, No. 83, at 106: "[...1 3° paiement d'un million de francs belges en faveur des ayants droit de la victime; [...]" And second, the Spanish Government explicitly denied any obligation to make a payment at all: "As to the indemnity demanded, denying the existence of any legal responsibility, [the Spanish reply] expressed the willingness of the Spanish Government to discuss the question of a payment to be made on moral grounds, i.e., ex gratia." The Borchgrave Case, (Belgium u Spain), 1937 P.C.I.J. Ser. A.B. No. 72, at 158 (Judgment of Nov.6). Needless to say that an ex gratia payment under the explicit rejection of any legal duty for it cannot constitute a form of legal remedy for a wrongful act. The author simply confounds "damages on moral grounds" with damages for moral injury. 20 Przetacznik, La responsabilite internationale de 1'Etat a raison des prejudices de caractere moral et politique causes a un autre Etat, 78 RGDIP 919, 924 (1974), who speaks of "une violation consciente de la dignite d'un Etat etranger''. 2 � Commentary, supra note 10, at para. (8). The following types of injurious behaviour are listed by the ILC: insults to the symbols of the state such as the national flag, violations of sov- ereignty or territorial integrity, ill-treatment of, or attacks against, heads of state or government or diplomatic or consular representatives or other diplomatically protected persons, violations
of the premises of embassies or consulates and cases where the victims of an internationally wrongful act were private citizens of a foreign state. 22 See however the decision in the Davy case, by which Venezuela was held responsible for denial of justice towards a British national. The commission held: "The case before the tribunal was a purely lawless proceeding [...] and [...] it is a deliberate indignity placed upon the claimant and an affront to the claimant Government". Mixed Claims Commission Great Britain-Venezuela, 9 RIAA 467, 469 (emphasis added). See also the Heirs of Jean Maninat case, infra note 45-49 and accompanying text. 23 T�zi, supra note 18, at 10. 24 Wolf, supra note 15, at 415. 25 P.A.Bissonnette, La satisfaction comme mode de reparation en droit international, Part II Ch. 3 (1952). 26 Graefrath, "Responsibility and Damages Caused: Relationship between Responsibility and Damages", 185 RdC 9, 35 (1984-II).
dominica, La satisfaction en droit des gens, in Melanges Georges Perrin 91, 118 (B.Dutoit/E.Grisel eds. 1984) 28 Cf. i.a. J.C.Bluntschli, Das moderne Volkerrecht der civilisirten Staten als Rechtsbuch dargestellt 261-2 para. 463 (3rd ed. 1878); C. de Visscher, La responsabilite des Etats, Bib- liotheca Visseriana Vol. II, 119 (1924); J.Personnaz, La reparation du prejudice en droit international public 277, 285 (1938); see however D.Anzilotti, Corso di diritto internazionale Vol. 1,464-6 (3rd ed. 1928) who acknowledges that moral damage might consist in a mere vio- lation of the injured state's rights. Similarly Jimenez de Arechaga International Responsibility, in Manual of Public International Law 531, 534 (M.Sorensen ed.1968). 29 Second Report, supra note 9, at 6 para. 14, where Special Rapporteur Arangio-Ruiz states that the legal and political (or moral) components of the immaterial damage of the state "tend of course to be fused into a single 'injurious' effect." Note, however, that Arangio-Ruiz even attempts to separate the "political" element from a state's moral injury, but, significantly, fails to give a convincing solution, see ibid., para. 13.
30 Case Concerning the Difference Between New Zealand and France Concerning the In- terpretation or Application of two Agreements, Concluded on 9 July 1986 Between the two States and which Related to the Problems Arising from the Rainbow Warrior Affair, (New Zealand v France), Award of 30 April 1990, [hereinafter Rainbow Warrior 11], 20 RIAA 217, 267 para. 110. For a thorough analysis of both phases of the Rainbow Warrior affair see infra section 3.3.3. 31 Ibid., at para. 108: "New Zealand asserts that it is not claiming material damage [...], but it is claiming legal damage by reason of having been victim of a violation of its treaty rights [...]. ] . Moreover, New Zealand claims moral damage since in this case there is not a purely technical breach of a treaty, but a breach causing deep offence to the honour, dignity and prestige of the State." 32 Probably the Tribunal referred to "new, additional non-material damage" in the sense that the infringement of the treaty caused immaterial damage additional to that already engendered by the Rainbow Warrior incident itself. If understood that way, nothing is gained either, since there are two distinct breaches each entailing separate moral damage.
33 Dominice, La satisfaction, supra note 27, at 118 para. 19. The problem of the auto- determination of moral damage was also raised within the ILC, see Summary Records, supra note 9, at 162 para. 41 (Calero Rodrigues). 34 Second Report, supra note 9, at 4 para. 9. This is also argued by Dominice, La satisfaction, supra note 27, at 111-2. 35 In this respect Arangio-Ruiz refers to the Lusitania case as "one of the leading cases", Second Report, supra note 9, at 4 para. 9-10. This assumption, however, raises the question whether moral injury to the individual is amenable to monetary compensation under Article 44, whose para. 2 restricts compensation to "any economically assessable damage". Although there are instances of moral injury which may be assessed in pecuniary terms (e.g. death, physical injury, or arbitrary detention), this is not always done on "economic" grounds. A fortiori, there are instances of mental suffering, such as humiliation, shame or degradation, which are practically impossible to assess in economic terms. This was also argued by some members of the ILC. See Report of the International Law Commission on the work of its forty-second session, supra note 11, at 75 para. 364. For an argument against the inclusion of moral damage of individuals into the material damage of the state see Annacker, Part Two
of the International Law Commission's Draft Articles on State Responsibility, 37 GYIL 206, 237s ( 1994). 36 Thus Dominice, La satisfaction, supra note 27, at 111, states: "En definitive, il nous parait possible d'affirmer que l'id6e d'une satisfaction pecuniaire, destinee a reparer ou a sanctionner un dommage moral, a trouve sa seule expression juridique dans les r6gles concer- nant la reparation due pour violation du droit international au detriment d'individus, personnes privees ou agents etatiques." (Emphases added). See also Bissonnette, supra note 25, at 68-82; Bollecker-Stern, supra note 15, at 25 and 94-184. 3� Cf. the references in Second Report, supra note 9, at 4-5 paras. 9-12. 3$ The Janes (U.S.A.) v. The United Mexican States (DocketNo. 168), General Claims Com- mission U.S.A.-Mexico (Opinion and Decision of Nov. 16, 1926), 4 RIAA 82, also reproduced in 21 A.J.LL. 362 (1927). There are numerous other cases of damages awards for denial of justice rendered by the General Claims Commission United States-Mexico. However, the Janes's case offers a detailed discussion of the issue of damage. Cf. i. a. Massey v. Mexico (Docket No. 352), (Opinion of Apr. 15, 1927), ibid., at 783; Putnam v. Mexico (Docket No. 354), (Opinion of Apr. 15, 1927), ibid., at 798; Kennedy v. Mexico (Docket No.), (Opinion of May 6, 1927), 22 A.J.I.L. 174 (1928), Quigley, Complicity in International Law: A New Direction in the Law of State Responsibility, 57 BYIL 77 (1986) and Graefrath, Complicity in the Law of State Responsibility, 29 RBDI 370 (1996). 39 Janes' case, supra note 38, at 367. For our purpose it is not necessary to discuss the Commission's argument on the nature of state responsibility in case of non-apprehension or non-punishment of private persons. Suffice it to note that the Commission rejected the theory
of responsibility based on complicity. Cf. on this problem Brierly, The Theory of Implied State Complicity in International Claims, 9 B.Y.LL. 42 (1928). 40 Janes' case, supra note 38, at 370. It is not clear whether the Commission in fact consid- ered the United States morally injured in its national honour. In view of the clear distinction the Commission made between the damage to the dependents and the probable moral injury to the state and considering the fact that the entire opinion does not deal with any consequences of such probable moral injury, it would seem that the Commission did not consider the United States morally injured. See however Borchard, Editorial Comment: Important Decisions of the Mixed Claims Commission United States and Mexico, 21 AJIL (1927) 516, at 517, for a different interpretation. 41 This is also underlined by Brownlie, System of the Law of Nations. State Responsibility, Partl, 223 (1983). 42 Second Report, supra note 9, at para.18. Similarly, the tribunal in the Metzger case did not recognize that the state had suffered moral damage in addition to that done to the indi- vidual. In this case, Germany acted on behalf of a national who had suffered moral damage by Venezuelan authorities. Umpire Duffield could not identify a damage on the part of Ger- many distinct from the injury done to Metzger. See Metzger case, Mixed Claims Commission Germany-Venezuela, 10 R.I.A.A. 417, 419. 43 Briggs, The Punitive Nature of Damages in International Law and State Responsibility for Failure to Apprehend, Prosecute or Punish, in Essays in Honor of W.W.Willoughby 339 (1937), with a detailed analysis of the Janes' case; Hunt, The United States-Panama Gen- eral Claims Commission, 28 AJIL 61 (1934); Borchard, The United States-Panama Claims Arbitration, 29 AJIL 99 (1935). 44 This is clearly expressed by Hyde, Concerning Damages arising from Neglect to Prose- cute, 22 AJIL 140 (1928), at 142: "[D]amages flow directly from the acts for which the State is held responsible and are compensatory rather than penal in character." Ibid in note 11: "The damages awarded are essentially compensatory for the loss occasioned by those acts." For
the contrary argument see e.g. Oppenheim's International Law, supra note 7, at 533 § 156, with reference to the Janes' case: "[Ilnternational tribunals have in numerous cases awarded damages which must, upon analysis, be regarded as penal, particularly in relation to the failure of states to apprehend or effectively to punish persons guilty of criminal acts against aliens." What analysis one has to apply in order to reach this "compelling" conclusion remains unsaid. It is noteworthy that the American commissioner, F.K. Nielsen, appended a separate statement regarding damages in which he came to precisely the same conclusion. He argued that when redress is sought for the delinquency resulting from the failure of a government to punish a wrongdoer, "the use of the term 'punitive' with respect to the nature of the redress that may be afforded seems to be somewhat inapt." He continued: "If the view is taken that a wrong to a national is a wrong to the state, it may perhaps be said that measures of redress for such wrongs are always in a sense punitive. But international tribunals in making pecuniary awards in cases like the present one do not appear to have considered that they were distinctly concerned [...] with the infliction of a penalty of what has sometimes been called 'smart money'. They have obviously considered that they were affording proper compensatory redress in satisfaction of wrongs." Separate statement by commissioner Nielsen, Janes' case, supra note 38, at 375 (emphasis added). Thus the commissioner acknowledged that satisfaction as reparation lato sensu has some penal or afflictive effects. But this, his statement implied, is not different from other forms of reparation, like restitution in kind or monetary compensation for material damage. Hence, even if the award might be considered as "in a sense punitive", this is the logical and inevitable consequence of any secondary obligation to remedy a breach of law. See also infra section 6.3. 45geirs of Jean Maninat case, (Opinion of July 31, 1905), Mixed Claims Commission France-Venezuela, 10 R.LA.A. 55. 46 "Therefore", the umpire concluded, "it is difficult to measure her exact pecuniary loss. There exists only the ordinary presumptions attending the facts of a widowed sister [...]. Some pecuniary loss may well be predicated on such conditions. For this she may have recompense." Ibid., at 81. 4� Ibid., at 81-2 (paragraph break suppressed).
4$ Ibid., at 83 (emphasis added). 49 Second Report, supra note 9, at para. 12, FN 16. He thus ignores this case for reasons which would be equally valid for the Moke case, the latter being nevertheless treated as a precedent. 50 French Company of Venezuelan Railroads Case (Mixed Claims Commission France- Venezuela), (Award of July 31, 1905), 10 RIAA 285, 348.
:>1 Lusitania case, 7 R.LA.A. 32, 41-2. See also Ralston, The Law and Procedure of International Tribunals 43 (rev. ed. 1926). 52 In this respect arbitral tribunals have the special function of finding a "just" solution tolerable to the parties, a function that often prevails over the task of generating and applying general rules. See Gray, Judicial Remedies in International Law 3 (1987). 53 M.Whiteman, Damages in International Law, Vol. I, 385 (1937), with respect to damages for (illegal) arrest, imprisonment, or expulsion states: "In a comparatively large number of
cases there is a failure to distinguish between and explain what was measured in fixing the indemnity, as distinguished from why any amount was allowed." (Emphasis in the original). In the Metzger case, supra note 42, at 419, for instance, the umpire considered the claim as a civil action in a tort case and, consequently, applied Venezuelan law. See also Whiteman, supra note 53, at 87. 55 C.Eagleton, The Responsibility of States in International Law 191 (1928) and generally id., The Measure of Damages in International Law, 39 YaleLJ 52 ( 1929-30). 56 Borchard, Important Decisions, supra note 40, at 518 states: "The alleged grounds on which damages in such cases [of mental sufferingl are based are often metaphysical." 57 For a comprehensive survey of equity provisions in arbitration agreements see Rossi, Equity and International Law 59-86 (1993). 58 L.Reitzer, La reparation comme consequence de 1'acte illicite en droit international 161 (1938). 59 See Gray, supra note 52, at 11. 60 Briggs, supra note 43, at 348. 61 �teman, supra note 53, at 628. A few lines above this statement, Whiteman however observes that "the gravity of the offense of the national of the respondent state is [...1 borne in mind in practically all cases". (emphasis added). Similarly Oppenheim's International Law, supra note 7, at 532: "In the assessment of damages a great difference would be likely to be made between acts of reparation for international wrongs deliberately and maliciously com- mitted, and for those which arise merely from culpable negligence." See also E.M. Borchard, The Diplomatic Protection of CitizensAbroad 419 (1922). See e.g. the Davy case, supra note
22, at 469: "The measure of damages placed upon such a crime must not be small. It must be of a degree adequate to the injury inflicted upon the claimant and the reproach thus unkindly brought upon the respondent Government." (Emphasis added). 62 Whiteman, supra note 53, at 628. Note, however, that in the concluding third volume (1943) of her study the same author unambiguously concludes that "there is an apparent desire on the part of international tribunals to avoid punitive or exemplary damages. The assessment of damages is a civil and not a penal act". Ibid., at 1874. See also Oppenheim, supra note 7, at 532: "[I]nternational tribunals have in numerous cases awarded damages which must [...] be regarded as penal [...]. The practice of states and tribunals shows other instances of reparation, indistinguishable from punishment, in the form of pecuniary redress unrelated to the damage actually inflicted." See also Commentary, supra note 10, at 208 para.(20). 63 This is frankly acknowledged by Borchard, Important Decisions, supra note 40, at 518, when he observes that "[t]he difficulty will always remain of measuring or computing such degrees of delinquency or the 'individual grief' which they cause. That must, in any event, be arbitrary." Schwarzenberger, supra note 2, at 277, even argues that such an implied reasoning would be tantamount to a petitio principii. See also Reitzer, supra note 58, at 325-6. 64 This has succinctly been stated by Whiteman, supra note 53, at 385: "Different readers of a case may reach different conclusions as to the basis of an award." 65 Gray, supra note 52, at 42. In this respect, the Moke case, which is considered to be among the leading cases with regard to punitive damages, provides an illustrative example on the divergent interpretation of an award in doctrine and practice. See infra section 3.2.1. 66 Second Report on the content, forms and degrees of international responsibility (part 2 of the draft articles), by Mr. Willem Riphagen, Special Rapporteur, 1981 YILC, Vol. II, Part 1, 79, 92 para. 106.
of. Dominice, La satisfaction, supra note 27, at 98 and 111 and Apollis, Le reglement de 1'affaire du "Rainbow Warrior", 91 RGDIP 9, 30 (1987). 6g See Bowett, Treaties and State Responsibility, in Le droit international au service de la paix, de la justice et du developpement. Melanges Michel Orally 138, 144 in note 26 (D.Bardonnet et al. eds. 1991). 69 See supra note 34-37, and accompanying text. �� Second Report, supra note 9, at para. 111. This conclusion affects numerous cases which are frequently cited in doctrine as authority for the acceptance of punitive damages awards. See however P.Reuter, La responsabilite internationale 111 (1955-6): "Dans toute atteinte a des ressortissants, un Etat subit un prejudice moral propre." 71 See infra chapter 3.2.1. with regard to the Moke case. Other cases concerning injuries to aliens Arangio-Ruiz cites as instances of satisfaction contrary to his self-imposed concep- tual restriction are the Lighthouses case (Greece v. France), Permanent Court of Arbitration, Awards of July 24th & 27th, 1956, 12 RIAA 155; Arends case, Mixed Claims Commission Netherlands-Venezuela, 10 RIAA 729; Brower case, Arbitral Tribunal Great Britain-United States, Decision of November 14, 1923, 6 RIAA 109, all of which contain awards of nominal damages.
72 Miliani case, Mixed Claims Commission Italy-Venezuela, 10 RIAA 584, 591 (emphasis added). This is also observed by Gray, supra note 52, at 42-3. See also Umpire Duffield in the Metzger case, supra note 42, at 418-9: "[T]he claim now before the Commission is not a claim of the German Nation but a claim of an individual." Thus the umpire disregarded Germany's explicit statement that the claim was not one between an individual and Venezuela, but "an international demand which the German Empire makes." Despite the ambiguous meaning of the term "international demand" this statement cannot be understood so as to imply that Germany deemed itself directly injured in its own rights. It would simply mean that Germany raised this claim of an individual on the international plane by means of diplomatic protection. Of course, the umpire in a sense blurred the concept of diplomatic protection, since a state by taking up the claim of one of its nationals is always asserting its own right. �3 Lusitania case, supra note 51, at 42 (emphasis added). See also Brownlie, State Responsibility, supra note 41, at 223 and Reitzer, supra note 58, at 308 in note 10. �4 Second Report, supra note 9, at para. 115. 75 The Moke case is regarded as leading case by C.F.Amerasinghe, State Responsibility for Injuries to Aliens 48 (1967). See also Gray, supra note 52, at 27.
�6 Moses Moke v. Mexico (Docket No. 342), Claims Commission United States-Mexico (Opinion of Aug. 16, 1871), in J.B.Moore, History and Digest of the International Arbitra- tions, Vol. IV, 4311 (1898). 77 Second Report, supra note 9, at para. 111. Arangio-Ruiz does not point to this inconsis- tency and it remains unclear whether the Moke case in this respect is an exception, and if so, for what reason. Since it is only four paragraphs after Arangio-Ruiz has stated that cases of physical or moral injury to individuals must be excluded from the scope of punitive damages (para. 111) that he treats the Moke case as an instance of punitive damages (para. 115), he must have considered this case as an exception in that the penal character of the award was meant to constitute appropriate satisfaction to the state which prevailed over the compensatory purpose towards the individual. This, however, is not convincing for the reasons set out above.
�8 Lusitania case, supra note 51, at 41. Significantly, Parker's statement that the language used in the Moke case was the nearest approach to a recognition of the doctrine of exemplary damages that the Commission in the Lusitania case had found in any reported decision of an arbitral tribunal is as valid today as it was then. 79 Cf. e.g. Oppenheim's International Law, supra note 7, at 533 § 156 in note 4; Dominice, La satisfaction, supra note 27, at 111 note 63; Whiteman, supra, note 53, at 717 note 263 (1937); The American Law Institute, Restatement of the Law The Foreign Relations Law of the United States (Third) § 901, reporters' note 5 (1987); Second Report, supra note 9, at para. 115; D.P. O'Connell, International Law, Volume Two, 1116 (2°a ed. 1970); Riedel, "Satisfaction", 10 E.P.LL. 383 (Bernhardt ed. 1987). Gray, supra note 52, at 43, states that "it may be true that the I'm Alone is the only case where an arbitral tribunal awarded pecuniary satisfaction to a state." g� S.S. "I'mAlone", (Canada u U.S.A.) (Awards of June 30, 1933, and Jan. 5, 1935), 3 RIAA 1609. The auxiliary schooner S.S. "I'm Alone" was employed in rum running, the cargo being destined for illegal introduction into, and sale in, the United States. It was sunk by the gun-fire of the United States Coast Guard vessel Dexter on March 22, 1929, more than 200 miles from the coast of the United States after two days of pursuit. The master and crew were plunged into the sea. The boatswain died from drowning whereas the captain and the remaining members of the crew survived and were taken on board American Coast Guard vessels. The Government of the United States justified the sinking of the I'm Alone outside the territorial waters of the United States on the doctrine of hot pursuit. Canada contested the applicability of this doctrine in the given circumstances. See in general Fitzmaurice, The Case of the I'm Alone, I7 BYIL 82 (1936). 8I This action was brought pursuant to the provisions of Article IV of the Convention con- cluded on January 23, 1924, between the United States and Great Britain. The Convention is reprinted in ibid., at 1611-3.
g2 Ibid., at 1618 (emphasis added). 83 This is clearly expressed in the Joint Final Report of the Commissioners: "[T]he United States might [...1 use necessary and reasonable force for the purpose of effecting the objects of boarding, searching, seizing and bringing into port the suspected vessel; and if sinking should occur incidentally, as a result of the exercise of necessary and reasonable force for such purpose, the pursuing vessel might be entirely blameless. But the Commissioners think that [...] the intentional sinking of the suspected vessel was not justified [...]." Ibid., at 1617 (emphasis added). This aggravating element of intent is also stressed by Garner, Hot Pursuit. Illegal Sinking of Vessel on the High Seas - The I'm Alone Case, 16 BYIL 173, 175 (1935). 84 Thus, one could argue that the sinking of a ship is not only an interference with the "flag sovereignty" of the flag state and, hence, entails legal damage, but it also deprives the flag state of its right to sail ships flying its flag on the High Seas. This infringement entails permanent detriment to the flag state which is distinct from the mere legal damage inflicted by the violation. See Wolf, supra note 15, at 419. 85 Hyde, Editorial Comment: The Adjustment of the I'm Alone Case, 29 AJIL 296, 300 (1935) who states that this recommendation concerned "the rather delicate question of the character and amount of damages due to a friendly State by way of reparation for an essentially public injury sustained by it" and thus "deserves scrutiny". Ibid., at 299-300. See also Friede, Der Fall der "I'm Alone", 5 ZaoRV 658, ( 1935), who misses any reasoning for this recommen- dation the more as the Canadian Government did not make a claim for such a recommendation.
Ibid., at 665. Thus, one might even consider this recommendation as contrary to the principle of ultra petita, see Parry, infra note 90. 86 Likewise, Tanzi, supra note 18, at 25, emphasizes that this award is not penal but solely reparative in character and constitutes a form of pecuniary satisfaction. 87 The relevant part of this article reads as follows (source in note 80): "Any claim by a British vessel for compensation on the grounds that it has suffered loss or injury through the improper or unreasonable exercise of the rights conferred by Article II of this treaty or on the ground that it has not been given the benefit of Article III shall be referred for the joint consideration of two persons [...]." 88 Publications, Department of State, Arbitration Series No. 2 (5), 6 (emphases added). See Hyde, Adjustment, supra note 85, at 300. 89 See Borchard, Diplomatic Protection, supra note 61, at 419 § 174: "Punitive or exemplary damages have been demanded by the United States and Great Britain in numerous cases [...]:'
90 See also the emphatic critique by Parry, Some Considerations upon the Protection of Individuals in International Law, 90 RdC 653 (1956-11), who notes at 683 that the award was "rendered somewhat suspect" and "being in peculiar form and only questionably intra vires." 91 Case Concerning the Differences Between New Zealand and France Arising from the Rainbow Warrior Affair, Ruling of 6 July 1986 by the Secretary-General of the United Nations, 21 RIAA 199. For a chronology of events see Charpentier, L'affaire du Rainbow Warrior, 31 AFDI 210-220 (1985) and Rousseau, Chronique des faits internationaux, 90 RGDIP 216-25 and 993-6 (1986). 92 Commentary, supra note 10, at 205 para. (13). 93 Second Report, supra note 9, at para. 134. 94 Commentary, supra note 10, at paras. (9) and (13). 95 With a gradual shift from arbitration to mediation one finds the following comments on the Ruling: K.Ipsen, Vdlkerrecht 968 mn.34 (3`d ed. 1990), describes the Ruling of the Secretary-General as a "special case of an arbitral decision by a single person" (transl. by the author). Similarly, Fiedler, Art.99, 1044, 1056 mn.52, in The Charter of the United Nations. A Commentary (B.Simma ed. 1991) regards the Ruling as a hitherto "unique case" in which the Secretary-General acted as an arbitrator. Likewise Pugh, Legal Aspects of the Rainbow Warrior Affair, 36 ICLQ 655, 656 (1987) and Wexler, supra note 19, at 410. Franck/Nolte, The Good Offices Function of the UN Secretary-General, in United Nations, Divided World 143, 166 note 111(A.Roberts/B.Kingsbury eds. 2°d ed. 1993) argue that the Secretary-General by this Ruling exercised "a quasi-arbitral function"; Apollis, supra note 67, at 20, calls the Ruling
an "arbitrage politique". Reymond, The Rainbow Warrior Arbitration between Greenpeace and France, 9(1) JInt' Arbitration 91 (1992) states: "It [sc. the dispute] ended with a recom- mendation of the Secretary-General which, although not technically an award and therefore not binding on both governments, was accepted and performed by both of them." (Emphasis added). Charpentier, L'affaire du Rainbow Warrior: Le reglement interetatique, 32 AFDI 872, 876 (1986) denotes the procedure "[u]ne mediation obligatoire". Finally, Brownlie, Principles of Public International Law 448 (9th ed. 1990) considers the Ruling as a form of mediation. 96 Cf. Reitzer, supra note 58, at 131-2. 97 It must be emphasized that an in-depth analysis of the various characteristics of mediation and arbitration, which distinguish one from the other, or which they have in common, would go beyond the scope of this article. The following examination is confined to those features which are relevant in the context of the Rainbow Warrior case and, consequently, might appear as somewhat superficial. 98 U.N. Handbook on the Peaceful Settlement of Disputes between States 40 para. 123 (1992). There is however an abundance of definitions of mediation offered by various scholars of the discipline. It must be added that the distinction between the various forms of "po- Iitical" dispute settlement frequently is not clear. See H.Neuhold, Internationale Konflikte - Uerbotene und erlaubte Mittel ihrer Austragung 364 (1977). Whether mediation is "more than an adjunct to negotiations" (U.N. Handbook, at para. 126) or just "an extension of the negotiation process" (Bercovitch/Houston, The Study of International Mediation: Theoretical Issues and Empirical Evidence, in Resolving International Conflicts. The Theory and Practice of Mediation 11, 12 [J.Bercovitch ed. 1996]) is of little interest for our purpose. 99 C.Rousseau, Droit international public, Vol. V, 266 (1983); Bercovitch/Houston, supra note 98, at 12; U.N. Handbook, supra note 98, at 44 para. 138. 100 D�,in, Mediation and Good Offices, in International Disputes: The Legal Aspects 83, 84 (The David Davies Memorial Institute of International Studies ed. 1972). 101 See Neuhold, supra note 98, at 364; J.H.W. Verzijl, International Law in Historical Perspective, Vol. VIII (1976), 135-6, however, notes that this is a "relative difference" since "[n]ot only can the same dispute, according to its nature, lend itself to arbitration as well as mediation [...] but the nature of the solution can also be intrinsically the same in both cases." Of course, this difference is further blurred by the possibility of arbitral tribunals to decide ex
aequo et bono and, more generally, by the freedom of the disputants to lay down the applicable procedure. See ibid., at 138. 102 U.N. Handbook, supra note 98, at 55 para. 168 and 65 para. 192. 103Ibid., at 61 para. 180. 104 See Pugh, supra note 95, at 663. 105 The then French Trade Minister Michel Noir told French radio that one possibility of achieving the release of the French agents was to request the European Community to ban imports of New Zealand butter. See Communique from Reuters, Annex E to the Memorandum of the Government of New Zealand, Rainbow Warrior I, supra note 91, at 207. These trade issues were also raised in the written statements of both Governments and addressed to by the Secretary-General in his Ruling, see ibid., at 203, 211-2 and 214-5. See also Charpentier, Reglement interetatique, supra note 95, at 875. 106 New Zealand in its memorandum stated: "[l]t has been, and remains, essential to the New Zealand position that there should be no release to freedom, that any transfer should be to custody, and that there should be a means of verifying that." Rainbow Warrior I, supra note 91, at 204. 107 Cf. Apollis, supra note 67, at 14-5, who is of the opinion that the choice of the Secretary- General as well as the procedure followed by him are just the consequence of an "imperatif politique"
108 Charpentier, Reglement inter6tatique, supra note 95, at 878-9, who observes that the Secretary-General accepted the task he was asked for immediately after a conversation with Mr.Chirac. And he significantly adds: "Il n'est pas interdit de penser qu'ils aient ensemble ex- plore les solutions acceptables par la France. Il est vraisemblable qu'il y a eu [...] un entretien similaire avec le representant de la Nouvelle-Zelande:'' 109 After he had received written statements of both parties, the Secretary-General made contact, "through diplomatic channels", with each of the two Governments in order to obtain a full and complete understanding of their positions, which he regarded a precondition to an equitable and principled ruling on all aspects of the affair. Rainbow Warrior I, supra note 91, at 212. Significantly, in point 3 of his Ruling, dealing with the issue of the two French service agents, the Secretary-General explicitly stated: "On this point, if I am to fulfil my mandate adequately, I must find a solution in respect of the two officers which both respects and reconciles these conflicting interests." Ibid., at 213 (emphasis added). 110 Ibid., at 212. 111 Rousseau, Chronique, supra note 91, at 993 notes that Secretary-General Perez de Cuellar himself was of the opinion that he acted as a mediator. The official documents, how- ever, are silent on a qualification of the procedure agreed upon. See Charpentier, Reglement interetatique, supra note 95, at 876-7, who in note 18 points out that the only official qualifica- tion of the Secretary-General's action as mediation was made by the French Foreign Minister. The Secretary-General on several occasions was entrusted as a mediator with the settlement of disputes between states. Apollis, supra note 67, at 15, states that "le Secretaire general des Nations Unies est en quelque sorte le 'mediateur ne' dans les relations internationales contemporaines". See also Darwin, supra note 100, at 92. For the Secretary-General's role in dispute settlement see e.g. Perez de Cuellar, The Role of the UN Secretary-General, in Roberts/Kingsbury, supra note 95, at 125-42; Franck, The Secretary-General's Role in Con- flict Resolution: Past, Present and Pure Conjecture, 6 EJIL 360, 370 (1995); Fiedler, supra note 95, at mn.29-52. 112 Apparently, it was not conceivable to France to submit such a highly political issue to arbitration, let alone adjudication. See Apollis, supra note 67, at 14.
113 See also the second paragraph of the second principle proclaimed in the Preamble to the Declaration on Principles of International Law concerning Friendly Relations and Co- operation among States in accordance with the Charter of the United Nations, GARes. 2625 (XXV) of 24 October 1970; Section I, paragraph 5, of the Manila Declaration on the Peaceful Settlement of International Disputes, GARes. 37/10 of 15 November 1982. 114 The Question of Malaysia, UNY (1963), 41 and The Question of Bahrain, UNY (1970), 284. Note, however, that in both incidents, the Secretary-General or his representatives con- ducted field inquiries in order to ascertain the wishes of the people of that territory with respect to self-determination. See also Franck/Nolte, supra note 95, at 147. 115 The UN Handbook, supra note 98, at 103 paras. 300-1, explicitly refers to the Rainbow Warrior case as an incident "of a distinct adaptation of mediation" See also Charpentier, Reglement interetatique, supra note 95, at 876. 116 Rainbow Warrior I, supra note 91, at 213. 117 Second Report, supra note 9, at para. 138. This is also argued by Apollis, supra note 67, at 31.
118 Ch�.pentier, Reglement interetatique, supra note 95, at 880 speaks of "vastes zones d'ombre"; Chatterjee, The Rainbow Warrior Arbitration between New Zealand and France, 9(1) JInt'l Arbitration 17, 18 (1992) states: "However, the basis on which the Secretary- General reached that sum is not clear from the Report." 119 Wexler, supra note 19, at 407. 120 Similar doubts are raised by Gray, supra note 52, at 88-9.
121 Rainbow Warrior I, supra note 91, at 215. 122 Source see supra note 30. 123 See infra note 160 and 164 and accompanying text. 124 Rainbow Warrior II, supra note 30, at 272 para. 117s. 125 Ibid., at 272 para. 119. New Zealand requested an "order" that France return its agents to the island of Hao as decided by the Secretary-General, as well as a declaration of unlawfulness, see ibid., at 267-8 para. 111, and at 272 para. 119. 126 Ibid., at 275, point 8. of the decision: "The Arbitral Tribunal [...] declares that the con- demnation of the French Republic for its breaches of its treaty obligations to New Zealand, made public by the decision of the Tribunal, constitutes in the circumstances appropriate satisfaction for the legal and moral damage caused to New Zealand [...]:'
127 Jimenez de Ar6chaga/Tanzi, La responsabilit6 internationale des Etats, in Droit interna- tional. Bilan et perspectives 367, 395 (M.Bedjaoui ed. 1991). 128 Rainbow Warrior II, supra note 30, at 273 para. 127 and at 275, point 9 of the decision. 129 This is indicated by the reference to "the earlier discussion of monetary compensation' preceding the recommendation, see ibid., at 274 para. 126. 130 Thus, the Tribunal referred to monetary compensation in case of mere immaterial dam- age, whereas the proper denomination would have been pecuniary or monetary satisfaction. 131 Rainbow Warrior II, supra note 30, at 272 paras. 116-20. Under the heading "On Decla- rations of Unlawfulness as Satisfaction", the Tribunal with reference to Arangio-Ruiz' Second Report interpreted former draft Article 10 on satisfaction so as to include "compensation on a broader basis", ibid. , at 273 para. 122. Again, the Tribunal seems to have confused the concepts of compensation and (pecuniary) satisfaction. 132 For a valuable and critical review of the 1990 decision of the Tribunal in the Rainbow Warrior case see Palmisano, Sulla decisione arbitrale relativa alia seconda fase del caso 'Rain-
bow Warrior"', 73 RivDl 874, particularly at 903-9 (1990). Cf. also Charpentier, "L' affaire du Rainbow Warrior: La sentence arbitrale du 30 Avril 1990", 36 AFDI 395, 405-7 (1990) and id., "L'affaire Rainbow-Warrior et la responsabilite internationale des Etats" in vortrage, Reden und Berichte aus dem Europa-Institut Saarbriicken, Nr. 245, 18-9 (1991). 133 Dominice, De la reparation constructive du prejudice immateriel souffert par un ttat, in M.Rama-Montaldo (ed.), International Law in an Evolving World. LiberAmicorum in Tribute to Eduardo Jimenez de Arechaga 505, 520 (1994), interprets this recommendation de lege ferenda as a form of "constructive reparation". 134 Cheek v. Siam, (Award of March 21, 1898), in Moore, supra note 76, Vol. V, 5068. 135 The treaty is reprinted in Parry (ed.), The Consolidated Treaty Series, Vol. 115, 111 (1969).
136 This demand appears to be somewhat queer under international law as the treaty surely did not intend to grant or allocate subjective rights to individuals, but rather to their national state. The treaty as a treaty of amity and commerce basically provided to secure the best interests of the respective citizens by encouraging, facilitating and regulating their industry and trade. 137 Cheek case, supra note 134, at 5071-2 (paragraph break suppressed). 138 See Gray, supra note 52, at 27. The argument of the United States was that "[t]he tribunal should take into account the conscious wrong of the government as a ground for a liberal estimation of damages suffered". Moore, supra note 76, Vol. II, at 1896. 139 The umpire stated that nothing could be "allowed in the way of punitive or exemplary damages against Venezuela, because it appears [...] that the general commanding the army promptly took action against the offender and punished him by imprisonment." Metzger case, supra note 42, at 419.
140 Torrey case, Mixed Claims Commission United States-Venezuela, 9 RIAA 225. 141 Brook v. Mexico (Docket No. 898), in Moore, supra note 76, Vol. IV, at 4309, 4311. 142 Gray, supra note 52, at 27, indicates that both parts of the opinion probably point to the general impossibility under international law to punish a state. On the other hand, she admits that the entire opinion could also be understood so as to refer to the lack of intention of the parties to confer such an authority on the commission. 143 Lillian Byrdine Grimm v. The Government of the Islamic Republic of Iran, Case No. 71, Iran-U.S. Claims Tribunal, (Award of 18 Feb. 1983), 2 IUCTR 78; also reproduced in 71 ILR 650 (1986).
1� Ibid. at 79. The tribunal moreover argued that under the principle of ejusdem generis the "words 'other measures' [...] ought to be [...] construed as generically similar to 'ex- propriations', and the alleged failure to provide is in no way similar to expropriations." As further support for its decision the tribunal pointed out "that it is generally recognized that a provision which establishes the scope of the jurisdiction of an arbitral tribunal should be given a restrictive interpretation.' Ibid., at 79-80. 145Ibid., at 87 (per Judge Holtzmann, dissenting). 146 Ibid. 147Ibid. (Emphasis added).
148 Ibid. It would have been more pertinent to argue in line with the reasoning in Lusitania and the Metzger cases that damages for mental pain and suffering are indeed property rights: "A right of action for damages for personal injuries is property." See Metzger case, supra note 42, at 419. 149 Heirs of Jules Brun case, Mixed Claims Commission France-Venezuela, 10 RIAA 24, 44 (emphasis added). 150 JAManasse & Co. v. Mexico (Docket No. 432), (Opinion of July 19, 1871), in Moore, supra note 76, Vol. IV, at 3462, 3464. 151 See supra note 51. 152 Lusitania case, supra note 51, at 39 (emphasis in the original). 153 Ibid., at 40.
154 Ibid. Umpire Parker confined himself to cases of injuries to aliens where states acted on behalf of their nationals. Cf. his argument on the Moke case, supra note 76 and accompanying text. 155Ibid., at 41 (emphasis in the original). 156 Ibid., at 43. 157 Borchard, Editorial Comment: The Opinions of the Mixed Claims Commission, United States and Germany, 19 AJIL 133 (1925), at 140 states that by denying punitive damages, the commission in the Lusitania case "follow[ed] the common rule of international tribunals". 158 Responsabilite de l'Allemagne a raison des actes commis postérieurement au 31 juillet 1914 et avant que le Portugal ne participdt a la guerre, (Portugal v. Germany), Award of 30 July, 1930, 2 RIAA 1035, 1076. 159 Ibid., at 1077: "La sanction reclamee par le Portugal est done en dehors a la fois des spheres des competences des arbitres et du cadre du Traite."
1� Carthage and Manouba cases, (France u Italy), Permanent Court of Arbitration, Award of 6 May, 1913, 11 R.LA.A. 449 and 463, at 460 and 475 respectively. 161 In the words of the umpire: "The umpire fails to find in the solemn covenant creating this tribunal any authority given it to pass upon any other than claims of British subjects, or, in other words, and affirmatively, he fails to find that it has authority to pass upon matters resting solely in unatoned indignities to the claimant Government." Stevenson case, Mixed Claims Commission Britain-Venezuela, 9 RIAA 494, 506-7. 162 Lusitania case, supra note 51, at 43. In the words of Umpire Parker: "It is our opinion that as between sovereign nations the question of the right and power to impose penalties, unlimited in amount, is political rather than legal in its nature [...]" See also B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953), who states at 235 that the question of punitive damages "does not fall within the legal notion of responsibility'' and to some degree Commissioner Nielsen in the Janes' case, supra note 38, at 375 and Oppenheim's International Law, supra note 7, at 529 note 9.
163 Stevenson case, supra note 161, at 506. See also Umpire Ralston in the Miliani case, supra note 72, at 591, who stated: "[U]nless specially charged, an international commission would scarcely measure in money an insult to the flag, while diplomatists might well do so". Likewise Rousseau, Droit international public, supra note 99, at 224: "11 n'y a guere de ju- risprudence sur la question [sc. de la satisfaction de caractere pecuniairel, les Etats repugnant la plupart du temps a soumettre a 1'arbitrage les litiges de cette nature." 164 Carthage and Manouba cases, supra note 160, at 460 and 475 respectively. But see Second Report, supra note 9, at para. 113. 165 The umpire stated: "Italy, save when her own pecuniary rights are affected, recovers nothing for her own benefit before a tribunal such as this, however much her own dignity may have been affected by the treatment of her subjects." Miliani case, supra note 72, at 591 (emphases added).
166 Most notably see the Martini case, (Italy u Venezuela), Award of 3 May 1930, 2 RIAA 975, at 1001-2. 167 See Zemanek, Responsabilite, supra note 17, at 67; Bollecker-Stern, supra note 15, at 34. 168 Velksquez Rodriguez case, Inter-American Court of Human Rights, Judgment of 21 July 1989, 95 ILR 233, 306 (1994), also reprinted in 11 HRLJ 127 (190). The relevant part of Art. 63(1) reads as follows: "If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule [...] that fair compensation be paid to the injured party." 169 velfisquez Rodriguez case, supra note 168, at 315-6, para. 38 (emphasis added). 170 Re Letelier and Moffitt, Chile-United States of America International Commission, (Award of 11 January, 1992), 88 ILR 727, 741. It must be mentioned that the Commission was not required to give an answer as to the basis of its award, since Chile without admitting responsibility was willing to make an ex gratia payment "equal to that which would be due if liability were established" as provided for in point 4 of the bilateral agreement, ibid., at 730. Note furthermore that the Commission determined the amount of the payment "in conformity with the applicable principles of international law" (ibid., at 733 para. 20). Since the Commis- sion in assessing the amount only relied on the concept of compensatory damages, one can conclude that it did not consider the concept of punitive damages as reflecting international law.
171 Second Report, supra note 9, at para. 119. See also ibid., at para. 19. 172 Dominice, La satisfaction, supra note 27, at 98. 173 Cf. the pointed critique by Mohamed Bennouna, the Moroccan member of the ILC: "The diplomatic practice referred to by the Special Rapporteur in regard to draft article 10, on satisfaction and guarantees of non-repetition, [...] could, at most, serve as a source of reference for those who wished to write the history of colonization." Summary records, supra note 13, at 169 para. 14. See also Report of the ILC on the work of its forty-second session, supra note 11, at 71 paras. 338�1. 174 Whiteman, supra note 53, at 716-33 175 Second Report, supra note 9, at paras. 120-35. The first of these cases is the Imbrie incident of 1924, in which the American Vice Consul in Persia was cruelly murdered by a mob. See Whiteman, supra note 53, at 732-3. All the payments made by Persia' were either on behalf of the widow or meant as a refund for the actual costs incurred. Furthermore, it must be noted that the US Department of State expressly
disclaimed any intention of demanding punitive damages, ibid., at 733 in note 315. The second case concerned the lynching of eleven Italians in New Orleans in 1891. The United States paid to Italy a sum of 125,000 lire, "to be distributed by the Italian Government to the families of the victims", as Arangio-Ruiz correctly states, see Second Report, supra note 9, at para. 125. In the third case, three American citizens were attacked by a group of Chinese in 1912. One of them was killed and the other two were seriously injured. The US Minister in Peking recommended that the claims arising from this incident be presented directly to the Foreign Office "as for exemplary or punitive damages" rather than to the Claims Commission. However, contrary to the opinion of Arangio-Ruiz, the US Department of State informed the Minister "that it did not consider that these were cases calling for exemplary of punitive damages" The Chinese Government eventually agreed to pay indemnities individually to the injured and the surviving dependents, respectively. See G.H.Hackworth, Digest of International Law, Vol. V, 725 (1943). Finally, in the Labaree case concerning the murder of Reverend Labaree, an American citizen, Persia paid an indemnity designated to the family of the killed Reverend: "[T]he American Minister reported that the Persian Government had paid the sterling equivalent of $30,000 U.S., which was remitted to the Department of State for the benefit of the widow and children of Labaree." Whiteman, supra note 53, at 727 (footnotes omitted, emphasis added). Signifi- cantly, the widow herself rejected the amount originally demanded of, and consented by, the Persian Government ($50,000) as "too large" (ibid., 726), the sum being consequently reduced to $30,000. 177 Following the invasion of Greek forces into Bulgarian territory in 1925, Greece was obliged by the Council of the League of Nations to pay an indemnity of 30 million leva for the material and moral injury inflicted on Bulgaria, see League of Nations, Official Journal, 1926, 172-3. See also F.P.Walters, A History of the League of Nations, Vol. I, 311-5 (1952) and LBrownlie, International Law and the Use of Force by States 140-2 (1963). 178 After the killing in 1919 of Sergeant Mannheim, a French soldier on guard at the French Embassy in Berlin, "le gouvernement francais a reclame une indemnite de 100.000 francs pour la famille de la victime et le versement par la ville de Berlin d'une amende d'un million; le gouvernement allemand a oppose certaines objections au paiement de cette amende". See PFauchille, Traite de droit international public, Vol. I, 528 (1922). Thus it remains unclear whether Germany or the city of Berlin in fact paid the sum demanded by France. 179 Following the attack of the Spanish Consulate by a mob in New Orleans in 1851, the US Secretary of State recognized that Spain "may claim special indemnity". J.B. Moore, Digest, Vol. VI, 812 (1906). However, that the damages paid to Spain represented punitive damages, as Arangio-Ruiz assumes, is incorrect, since the sum unequivocally was meant to constitute compensation, see ibid., at 814: "B.y an act.of Congress [...], the sum of $25,000. was appropriated 'to make compensation to the Spanish consul and other subjects of Spain residing at New Orleans, and subjects of Spain at Key West, for losses occasioned by violence in the year 1851 [ ... ]."' (Emphases added). Furthermore, the fact that only such losses which could be "certitlied] to have been suffered should be paid" (ibid.) reveals the compensatory nature of the indemnity.
180 In the Tellini or Janina case, General Tellini, an Italian officer commissioned by the Conference of Ambassadors to assist in the delimitation of the frontier between Greece and Albania, was murdered from ambush, by unknown parties, on Greek territory. The Conference of Ambassadors set a series of severe and humiliating measures of redress as due from Greece (see League of Nations Official Journal, 1923, at 1304-5), among them an indemnity of 50 million lire which was specifically stated to be a penalty. However, the circumstances of the case render it doubtful whether Greece acted in violation of international law at all. Greece pointed out that, though it had received no warning of danger, it had kept a special detachment on guard, and that the attack occurred in a wild country where protection was very difficult. Nor was any affront to Italy established by evidence. Finally, one may reasonably doubt whether the position of General Tellini was such as to justify the exorbitant reparation received by Italy for his death. See Eagleton, Responsibility, supra note 55, at 188 in note 14, who does not believe that such damages would have been awarded by a court. It must be noted that it was intended that the PCIJ decide on the amount of the indemnity. However, the indemnity was rashly assessed by the Conference on the basis of a not very detailed report of the investigating commission and without awaiting the final report. The foregoing considerations as well as the fact that the decision by the Conference of Ambassadors, which was vigorously contested by Greece particularly with regard to the assessed "penalty" and whose implementation was imposed by force, was motivated by considerations of mere power politics of fascist Italy, render this case an example of colonial and imperialistic suppression under the guise of state responsibility. For an account of the facts see Walters, supra note 177, Vol. I, at 244-55. See also Graefrath, supra note 26, at 85, who rightly equates the Tellini case with the humiliating mode of satisfaction that was enforced on China after the Boxer Rebellion. It is inexplicable why Arangio-Ruiz in his search of state practice includes these two cases, the more so as he himself admits that these are instances in which "claims for satisfaction were put forward with the additional purpose of exercising political constraint against a weaker State and possibly obtaining advantages for the more powerful State". Second Report, supra note 9, at paras. 120 and 124, as well as Summary records, supra note 13, at 165 para. 60.
181 Commentary, supra note 10, at para. (9). 182Ibid., at para. (16). 183 Ibid., at para. (9); similarly Zemanek, Responsabilite, supra note 17, at 68. 184 It is a commonplace to refer in this respect to the well-known part of the decision in the Corfu Channel case, (U.K. v Albania), Judgment of April 9, 1949 ICJ Reports 4, 35. For further examples see the Carthage and Manouba cases, supra note 160, at 460 and 475, and Rainbow Warrior II, supra note 30, at point 8 of the decision and paras. 121-3. See also LAFICO and the Republic of Burundi, (LAFICO-Republic of Burundi Arbitral Tribunal), Award of March 4, 1991, 96 ILR 282, where the Tribunal held the view that non-pecuniary loss inflicted upon an investment company and consisting in serious damage to the reputa- tion and honour of the company may be made good by satisfaction. The Tribunal concluded: "Following current international practice, the Tribunal considers that in this case the finding in the award that the behaviour of Burundi constituted an unlawful act from the standpoint of international law itself constitutes appropriate satisfaction for LAFICO as a legal body." Ibid., at 329. 185 Second Report, supra note 9, at paras. 107, 117 and 139. 186 Article 10 para. 3 as proposed by the Special Rapporteur read as follows: "A declaration of the wrongfulness of the act by a competent tribnnal may constitute in itself appropriate satisfaction." Ibid., at para. 191. It must be emphasized that Article 10 just referred to was
later amended by the ILC and is thus not identical to Article 10 (now Article 45) as proposed in the ILC's report to the Sixth Committee. 187 Commentary, supra note 10, at para. (10). 188 See e.g. Summary records, supra note 13, at 162 para. 42 (Calero-Rodrigues): "It was not very clear whether that was an exhaustive or an illustrative list." 189 See text in note 8. 190 This was considered by Arangio-Ruiz in his Second Report, supra note 9, at para. 109.
191 Cf. Gaja, Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts, in International Crimes of State 151, 153 (J.H.H. Weiler et al. eds. 1989). 192 Report of the ILC on the work of its twenty-eighth session, Commentary on Article 19, YILC 1976, Vol. II, Part Two, 95, 97 para. (7). 193 See Fourth report on the content, forms and degrees of international responsibility, by Mr. Willem Riphagen, Special Rapporteur, YILC 1983, Vol. II, Part 1, 10-1. 194 Summary records of the twenty-eighth session, YILC 1976, Vol. I, 60 (Special Rapporteur Ago). 195 This result is corroborated by Article 52 para. b, which explicitly lifts the restriction set forth in Article 45 para. 3, see text in note 8.
196 Cf. i.a. Tomuschat, Some Reflections on the Consequences of a Breach of an Obligation under International Law, in Im Dienst an der Gemeinschaft, Festschrift fur Dietrich Schindler zum 65. Geburtstag 147, 161 (W.Haller et al. eds. 1989); Dupuy, The International Law of State Responsibility: Revolution or Evolution?, 11 Mich.JIL 122 (1989); Sachariev, State Responsibility for Multilateral Treaty Violations: Identifying the 'Injured State' and its Legal Status, 35 NILR 273, 288 (1988). 197 Special Rapporteur Riphagen in his Sixth report on the content, forms and degrees of international responsibility, YILC 1985, Vol. II, Part One, 3, 14 in note 44, excluded the entitle- ment of objectively injured states to compensation. Similarly Condorelli, Measures Available to Third States Reacting to Crimes of States, in J.Weiler et al., supra note 191, at 265, and Simma, International Crimes: Injury and Countermeasures, ibid., 283, 301. 19s Rainbow Warrior II, supra note 30, at 272 para. 118 (emphasis added). 199 Thus, the denomination of a pecuniary form of satisfaction as "compensation" is from a conceptual point of view incorrect, and by its reference to the Second Report by Arangio- Ruiz the Tribunal does harm to the Special Rapporteur, who tries to categorize the modes of reparation depending on the kind of damage in a dogmatically sound way.
207 Second report, supra note 9, at para. 109: "[S]atisfaction should be proportioned to the seriousness of the offence or to the degree of fault of the responsible State." (Emphasis added). 208 Ibid., at para. 191 (Article 10 para. 2): "The choice of the form or forms of satisfaction shall be made taking into account the importance of the obligation breached and the existence and degree of wilful intent or negligence of the State which has committed the wrongful act." (Emphasis added). 209Ibid., at para. 188. 210 Commentary, supra note 10, at para. (24). 211 See Briggs, supra note 43, passim. 212 Jean Maninat case, supra note 45, at 81-2; Davy case, supra note 22, at 469.
213 See supra b), in particular text accompanying note 194. According to the ILC, it is not sufficient for an international crime to be committed that the wrongful act results from the breach of an essentially important obligation, but in addition it is required that this breach must be a serious one. 214 Cf. Second Report, supra note 9, at para. 148. It must be doubted whether Article 46 indeed adds anything to the preventive purpose of state responsibility. For, any mode of satisfaction serves the function of reaffirming the obligation breached in order to safeguard the violated right against recurring violations. See Graefrath, supra note 26, at 87. Thus it is not easy to understand why the ILC considers guarantees of non-repetition as a distinct remedy contrary to the proposal of Arangio-Ruiz, who included them among the other forms of satisfaction. Cf. Second Report, supra note 9, at 191, Article 10 para. 1. 215 See text in note 6. 216 Some members of the ILC interpreted the reference to the importance of the obligation breached (see infra a) so as to mean that account must be taken of the extent to which the wrongful act had caused moral injury, see Summary records, supra note 13, at 163 para. 45 (Caldero-Rodrigues). This again raises the problem of the importance of the obligation as a "double criterion", necessary to identify the existence of a moral damage and to justify punitive damages as well.
217pw,en, supra note 204, at 1266. 218 Ibid. 219 Second Report, supra note 9, at para. 136. 220 For cases of nominal damages see Lighthouses case, supra note 71, at 216; Arends case, supra note 71, at 730; and Brower case, supra note 71, at 112.
221 See Ehrenzweig, Psychological Jurisprudence §207 (1970) and Briggs, supra note 43, at 346. This is also recognized by Arangio-Ruiz in his Second Report, supra note 9, at paras. 136 and 185. Arangio-Ruiz, however, is conceptually mistaken when he notes that satisfaction has a "predominantly afflictive and not compensatory role" The relevant issue is not the distinction between afflictive and compensatory purposes of satisfaction, but rather whether satisfaction has a primarily reparative or indeed penal, and in this sense afflictive, function. 222 See particularly Second Report, supra note 9, at paras. 18-9. 223 Sufflce it here to refer to the ample material with regard to non-pecuniary forms of satisfaction to be found in the Second Report, at paras. 106-35. See however Dominice, La satisfaction, supra note 27, at 121, who turns the system upside down: "En definitive, ce n'est pas la satisfaction qui est un mode de reparation, mais la reparation qui constitue l'une des formes de satisfaction." 224 Graefrath, supra note 26, at 86. See also Bowett, supra note 68, at 145, who however seems to view the order for compliance as a form of restitution and, thus, as somewhat different from satisfaction as expressed by a declaration of wrongfulness. 225 Similarly Bollecker-Stern, supra note 15, at 34, who however adds that this logical corre- lation between the nature of damage and the kind of reparation is not always taken into account in practice. For the contrary opinion see Fitzmaurice, supra note 80, at 109, who states that "undere international law a government is always entitled to some damages in respect of a breach of international law or treaty, irrespective of whether the breach has caused any actual material damage or pecuniary loss." (Emphasis in the original).
226 Tanzi, supra note 18, at 28; Dominice, La satisfaction, supra note 27, at 94. See also Commissioner Nielsen's separate opinion in the Janes' case, supra note 38. at 375. 227 Commentary, supra note 10, at para. (21). Likewise, a former Special Rapporteur clearly rejected any punitive character of satisfaction: "The Special Rapporteur is inclined to consider such measures of 'satisfaction' as examples of the ex ante aspect of the new legal relationship, involving, the 'credibility' of the primary rule itself, and not as a penalty to which the author State is made liable." Riphagen, Second report, supra note 66, at para. 86. As for the doctrine on this matter see Second Report, supra note 9, at para. 108 with ample reference. 228 Cf. former Article 10 para. 1, which provided for "adequate satisfaction in the form of apologies, nominal or punitive damages [...]." Second Report, supra note 9, at para. 191 (emphasis added). 229 One solution would be to detach punitive damages from satisfaction and insert a separate article, as was done with the guarantees and assurances of non-repetition, though for other reasons, see Commentary, supra note 10, at 81, commentary to Article 10 bis. 230 These problems were also raised within the ILC, see Second Report, supra note 9, at para. 141, and Commentary, supra note 10, at para. (22). 231 See e.g. Schreuer, The Waning of the Sovereign State: Towards a New Paradigm of International Law?, 4 EJIL 447 (1993); L. Ali Khan, The Extinction of Nation-States. A World without Borders (1996).
232 Second Report, supra note 9, at 42 para. 144. 233 �phagen, Second Report, supra note 66, at para. 87. A "self-inflicted sanction" may be inherent in the generally accepted forms of satisfaction, but then again the qualitative difference to restitution and compensation seems hard to discern, because they likewise consist in an action to be taken by the author state and equally represent a form of atonement (to use a term preferred by Arangio-Ruiz). 234 Report of the ILC on the work of its forty-second session, supra note 11, 80 para 396; Summary records, supra note 13, at 156 para. 12 (Tomuschat). 235 Article 45 para. 3 (for the text see supra note 8) appears ineffective to prevent such abuses, especially in the light of the still prevailing auto-determination of rights in international law. 236 See supra note 163, and accompanying text. 237 Second Report, supra note 9, at para. 143.
238 Cf. however Siehr, Zur Anerkennung und Volkstreckung auslandischer Verurteilungen zu "punitive damages", 37 Recht der Internationalen Wirtschaft 705 (1991), who tries to recon- cile punitive damages with afflictive remedies of private law in civil law countries, such as the different forms of unjust enrichment, contractual fines (Konventionalstrafen) or the French astreinte. 239Cf. Gray, supra note 52, at 28. 240 Note that the European Court of Justice held the view that exemplary damages may be granted for a violation of Community law provided that such a claim is warranted by municipal law. The Court however did not treat the question of whether a claim for exemplary or punitive damages may be based solely on Community law independent of any title under domestic law. See Brasserie du pecheur SA v. Federal Republic of Germany and R. v. Secretary of State for Transport ex parte Factortame et al. (Cases C-46/93 and C-48/93) [1996-3] ECR 1131, 1158. See also C. Lewis, Remedies and the Enforcement of European Community Law 141-2 (1996). 241 See in general Brand, Punitive Damages and the Recognition of Judgments, 43 NILR 143 (1996). For Germany see J. Rosengarten, Punitive damages und ihre Anerkennung und Vollstreckung in der Bundesrepublik Deutschland (1994). See also the decision of the German Federal Court of Justice of June 4, 1992, No. IX ZR 149/91 Civil Division, 118 BGHZ 312 (1993), also reprinted in 32 ILM 1327 (1993), with an Introductory Note by G. Wegen and J. Sherer, ibid., at 1320. There is abundant literature on the attitude of German courts with regard to US punitive damages awards, see e.g. Bungert, Vollstreckbarkeit US-amerikanischer Schadensersatzurteile in exorbitanter Hohe, ZIP 1992 170 id., Inlandsbezug und Vollstreck-
barkeit US-amerikanischer Produkthaftungsurteile, ibid., 1993, 815; Koch, Auslandischer Schadensersatz vor deutschen Gerichten, NJW 1992, 3073; Zekoll, The Enforceability of American Money Judgments Abroad: A Landmark Decision by the German Federal Court of Justice, 30 Col.JTL 641 (1992); Koch/Zekoll, Zweimal amerikanische punitive damages vor deutschen Gerichten, IPRax 1993, 288; Nettesheim/Stahl, Bundesgerichtshof Rejects En- forcement of United States Punitive Damages Award, 28 Texas ILJ41 (1993). Japanese Courts have taken a similar position, see An Oregon Partnership, Northcon 1 v. Yoshitake Katayama, Mansei Kogyo Co., Decision of the Tokyo High Court of June 28, 1993, 37 JAIL 155 (1994); see Henderson, Comparative Law in the Japanese Courts: Punitive Damages, 24 Law in Japan 98 (1991). A more differentiated view was adopted by a civil court in Switzerland, see Civil Court of Basel, Decision of February 1, 1989, Basler Juristische Mitteilungen 1991, 31. 242 See e.g. Gotanda, Awarding Punitive Damages in International Commerical Arbitrations in the Wake of Mastrobuono v. Shearson Lehman Hutton, Inc., 38 HanILJ 59 (1997); Scott Donahey, Punitive Damages in International Commercial Arbitration, 10(3) JInt'l Arbitration 67 (1993); Barlow, Punitive Damages under the Warsaw Convention: Mixing Apples with Oranges, 27 Annals of Air and Space Law 71 (1992); Compton Grems, Punitive Damages under the Warsaw Convention: Revisiting the Drafters' Intent, 41 Am. ULR 141 (1991); Moore, The Lockerbie Air Disaster: Punitive Damages in International Aviation under the Warsaw Convention, 15 Houston JIL 67 (1992). �3 For these structural differences impeding the transferability of penal concepts into inter- national law see Expose de M. Basdevant, Phosphates in Morocco case, PCIJ Ser. C, No. 85, 1060-1, and Marek, Criminalizing State Responsibility, 14 RBDI460, 464 (1978/79).
244 See e.g. the I'm Alone case, supra note 80, at 1618; Commentary, supra note 10, at para. (24). This flexible system is provided for in Article 45 para. 2 anyway ("Satisfaction may take the form of one or more of the following [...]"), see text supra note 8. 245 This was the attempt pursued by a previous Special Rapporteur, see Summary records of the meetings of the thirty-third session, YILC 1981, Vol. I, 126 para. 12. Probably he aimed at increasing the value of arbitral decisions and thus anticipated his conclusion that arbitral decisions do not represent a useful source of general rules on the consequences of state responsibility. See supra note 66. See also Gray, supra note 52, at 2-3, who expressed the hope that Part III of the draft on implementation could transform the whole draft. This hope, however, has been blighted. 246 See however that there are several instances where courts and tribunals referred to Chapter V on "Circumstances Precluding Wrongfulness": Case Concerning the Gabcikovo- Nagymaros Project, (Hungary v Slovakia, 1997 ICJ Rep. paras. 50-8 (Judgment of September 25); Rainbow Warrior �/, supra note 30, at 252-5; LAFICO and Burundi case, supra note 184, at 318-9. It is interesting to note that some provisions of chapter V, notably Arts. 31 and 33, are formulated on such a high level of abstraction as is Article 45 para. 2.c. One might sarcastically observe that it was not despite, but because of, this abstract terminology that the tribunals referred to the draft articles. 247 Second Report, supra note 9, at para. 32.
248 Schwarzenberger, supra note 2, at 293-4. 249 Most prominently in this regard L. Henkin, How Nations Behave 314 (2nd ed. 1979). But see Zemanek, The Legal Foundations of the International System, 266 RdC 9, 271 para. 24 (1997), who holds the discussion on whether the international system should be called primitive or not as "more or less redundant", because decentralization does not necessarily imply "primitivity'' 250 Schwarzenberger, supra, note 2 at 294.