International law, Sixth edition
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International Law MALCOLM N. SHAW
(Hungary/Slovakia) case that it was a ‘well-established rule of interna-
tional 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’. 167 Article 36(1) provides that in so far as damage caused by an internationally wrongful act is not made good by restitu- tion, the state responsible is under an obligation to give compensation. 168 Article 36(2) states that the compensation to be provided shall cover any financially assessable damage including loss of profits in so far as this is established. 169 The aim is to deal with economic losses actually caused. Punitive or exemplary damages go beyond the concept of repara- tion as such 170 and were indeed held in Vel´asquez Rodrigu´ez v. Honduras 165 17 ILM, 1978, p. 36; 53 ILR, pp. 507–8. In fact the parties settled the dispute by Libya supplying $152 million worth of crude oil, 17 ILM, 1998, p. 2. 166 These points were explained by the arbitrator in the Liamco case, 20 ILM, 1981, pp. 1, 63–4; 62 ILR, pp. 141, 198. See also the Aminoil case, 21 ILM, 1982, p. 976; 66 ILR, p. 519. See further e.g. A. Fatouros, ‘International Law and the International Contract’, 74 AJIL, 1980, p. 134. The issue of compensation for expropriated property is discussed further below, p. 827. 167 ICJ Reports, 1997, pp. 7, 81; 116 ILR, p. 1. See also the Construction of a Wall case, ICJ Reports, 2004, pp. 136, 198; 129 ILR, pp. 37, 117–18, and the Genocide Convention (Bosnia v. Serbia) case, ICJ Reports, 2007, para. 460. In the latter case, the Court referred to article 36. 168 In the Gabˇc´ıkovo–Nagymaros Project case, ICJ Reports, 1997, pp. 7, 81; 116 ILR, p. 1, the Court held that both states were entitled to claim and obliged to provide compensation. Accordingly, the parties were called upon to renounce or cancel all financial claims and counter-claims. See more generally D. Shelton, Remedies in International Human Rights Law, 2nd edn, Oxford, 2005, and C. N. Brower and J. D. Brueschke, The Iran–United States Claims Tribunal, The Hague, 1998, chapters 14–18. 169 See ILC Commentary 2001, p. 243. See also the Report of the International Law Com- mission on the Work of its Forty-Fifth Session, A/48/10, p. 185. 170 See generally Whiteman, Damages, and Ar´echaga, ‘International Responsibility’, p. 571. See also N. Jorgensen, ‘A Reappraisal of Punitive Damages in International Law’, 68 BYIL, 1997, p. 247; Yearbook of the ILC, 1956, vol. II, pp. 211–12, and Annacker, ‘Part Two’, pp. 225 ff. s tat e r e s p o n s i b i l i t y 805 (Compensation) to be a principle ‘not applicable in international law at this time’. 171 Compensation is usually assessed on the basis of the ‘fair market value’ of the property lost, although the method used to calculate this may depend upon the type of property involved. 172 Loss of profits may also be claimed where, for example, there has been interference with use and enjoyment or unlawful taking of income-producing property or in some cases with regard to loss of future income. 173 Damage includes both material and non-material (or moral) damage. 174 Monetary compensation may thus be paid for individual pain and suf- fering and insults. In the I’m Alone 175 case, for example, a sum of $25,000 was suggested as recompense for the indignity suffered by Canada, in having a ship registered in Montreal unlawfully sunk. A further example of this is provided by the France–New Zealand Agreement of 9 July 1986, concerning the sinking of the vessel Rainbow Warrior by French agents in New Zealand, the second paragraph of which provided for France to pay the sum of $7 million as compensation to New Zealand for ‘all the damage which it has suffered’. 176 It is clear from the context that it covered more than material damage. 177 In the subsequent arbitration in 1990, the Tribunal declared that an order for the payment of monetary compensation can be made in respect of the breach of international obligations involving . . . serious moral and legal damage, even though there is no material damage. 178 However, the Tribunal declined to make an order for monetary compen- sation, primarily since New Zealand was seeking alternative remedies. 179 Satisfaction constitutes a third form of reparation. This relates to non- monetary compensation and would include official apologies, the pun- ishment of guilty minor officials or the formal acknowledgement of the unlawful character of an act. 180 The Tribunal in the Rainbow Warrior 171 Inter-American Court of Human Rights, 1989, Series C, No. 7, pp. 34, 52; 95 ILR, p. 306. 172 See on this the analysis in the ILC Commentary 2001, pp. 255 ff. See also the UNCITRAL Arbitral Tribunal decision of 14 March 2003 in CME Czech Republic BV v. The Czech Download 7.77 Mb. Do'stlaringiz bilan baham: |
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