1 Draft Articles on Responsibility of States for Internationally Wrongful Acts, pt. 2, Arts. 28-41, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at <http://www.org.un/law/ilc>, reprinted in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002). References to, and quotations of, the articles, as well as the official ILC commentaries to the articles, which appear in the Commission’s Fifty-third Report and Crawford’s volume, supra, will be identified below by article and paragraph number.

2 See, for example, the discussion of continuing violations, in text at notes 38-47 infra. The general statement of obligation to make Reparation for harm caused masks many difficult legal issues that probably could not be adequately answered by a single set of articles, because the principles are intended to apply to every breach of an international obligation regardless of the source of the obligation or nature of the breach. Left vague are the answers to questions such as what is injury? what are the required causal links to require Reparation for asserted injury? when can compensation substitute for restitution? The commentary adds needed detail; the commentary to Article 36, discussed in text at notes 123,126-33 infra, is especially helpful in providing a lengthy review of judicial practice assessing compensation for injury.

3 Most interstate disputes are resolved by direct negotiations between the disputing parties. José, E. Alvarez, The New Dispute Settlers: (Half) Truths and Consequences, 38 Tex. Int’l L.J. (forthcoming 2003)Google Scholar (manuscript at 12-13, on file with author). Many interstate disputes, of course, do not involve claims for Reparations. In some cases the parties seek only to determine the applicable law, which may be so unclear as to be disputable. In the North Sea Continental Shelf cases, for example, the parties did not ask for delimitation of boundaries, but for the applicable principles and rules to be applied by them. North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Feb. 20); see Robert, Y. Jennings, The Proper Work and Purposes of the International Court of Justice, in The International Court of Justice 33-45 (Muller, A. S. et al. eds., 1997)Google Scholar. According to Christine Gray, about one third of the cases at the Permanent Court of International Justice (PCIJ) involved a claim for damages. Christine, D. Gray, Judicial remedies in International Law 77 (Paperbacks, Clarendon 1990) (1987)Google Scholar.

4 Recent cases at the International Court of Justice (ICJ) asking for Reparations include LaGrand (Ger. v. U.S.), Fisheries Jurisdiction (Spain v. Can.), Armed Activities on the Territory of the Congo (Congo v. Uganda; Congo v. Rwanda; Congo v. Burundi), Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.), Aerial Incident of 10 August 1999 (Pak. v. India), Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Aerial Incident of 3 July 1988 (Iran v. U.S.), Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), and Arrest Warrant of 11 April 2000 (Congo v. Belg.). The applications, memorials, and judgments are available online at <http://www.icj-cij.org>.

5 See, e.g., Memorial of Germany (LaGrand Case) 241 (Sept. 16,1999) (calling the ILC draft articles on responsibility “the most authoritative statement of customary international law on the matter”).

6 In 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 Rosenstock, Robert & Kaplan, Margo, The Fifty-third Session of the International Law Commission, 9 & AJIL 412, 414-15 (2002)Google Scholar.

8 The ICJ has indicated that the basic principle of Reparation articulated in the Chorzów 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 Tribunal, Advisory Opinion, 1973 ICJ Rep. 166, 197-98 (July 12) (citing Factory at Chorzow (Ger. v. Pol.), Indemnity, 1928 PCIJ (ser. A) No. 17 (Sept. 13) [hereinafter Chorzow Factory, Indemnity]).

9 For a critique of current international practice in the field of human rights, see Shelton, Dinah, Remedies in International Human Rights Law (1999)Google Scholar.

10 The article setting forth the general principle is a restatement of the Chorzów) Factory declaration quoted in text at note 13 infra.

11 The Chorzów Factory Judgment 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 Chorzów 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 damages 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 Chorzów Factory (Ger. v. Pol.), Jurisdiction, 1927 PCIJ (ser. A) No. 9, at 21 (July 26), reaffirmed in Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Rep. 174, para. 184 (Apr. 11).

14 Chorzów 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 International Court of Justice 6 (1986).

15 LaGrand Case (Ger. v. U.S.), Merits, para. 48 (Int’l Ct. Justice June 27, 2001), 40 ILM 1069, 1082 (2001) (citing Chorzów 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, 1986ICJ Rep. 14,142 (June 27); and Fisheries Jurisdiction (FRG v. 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. Brownlie, Ian, Remedies in the International Court of Justice, in Fifty Years of the International. Court of Justice 557, 558 (Lowe, Vaughan & Fitzmaurice, Malgosia eds., 1996)CrossRefGoogle Scholar [hereinafter Fifty Years of ICJ].

16 In the Chorzów Factory case, the Court found that its jurisdiction extends to method of payment, beneficiaries, and other aspects of Reparation. Chorzów 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 (UK v. 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 deciding 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 principle of proportionality to determine the scope of Reparations, while in the earlier Velásquez Rodríguez case, it applied principles of equity to determine indemnification for nonmonetary harm. Velasquez Rodriguez, Compensatory 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 Engineers of Iran, 6 Iran-U.S. CI. Trib. Rep. 219, 225 (1984). The Inter-American Court has Repeatedly stated that Article 63 (1) of the American Convention on Human Rights, concerning Reparations, articulates general international law, citing Chorzów Factory, Jurisdiction and Indemnity, supra notes 13, 8. Velásquez Rodríguez, supra note 17, paras. 25-26, 30-31.

19 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.

20 For an overview of human rights cases where applicants requested declaratory judgments but no damages, see Shelton, supra note 9, at 201-02, 211, 218-19. Human rights law is a source of extensive and useful jurisprudence 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 by treaty, such as the consular rights at issue in the LaGrand Case, supra note 15, paras. 77-78.

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 beneficiaries 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 Doing Justice After Civil Conflict (Bigger, Nigel ed., 2001)Google Scholar; Restorative Justice and Civil Society (Strang, Heather & Braithwaite, John eds., 2001)Google Scholar; Johnstone, Gerry, Restorative Justice: Ideas, Values, Debates (2002)Google Scholar; Daniel, W. Van Ness & Karen Heetderks Strong, Restoring Justice (2002)Google Scholar.

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 ILC joined 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 had jurisdiction 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.

25 The articles articulate all the rules in part 2 in terms of obligations of the responsible state, rather than as rights of the injured party to obtain Reparation. This change was made in 1999 after the first reading, in part because it was believed that approaching Reparation as a right rather than a duty tended to exclude aspects of Reparation such as declaratory relief and also seemed to suggest that the appropriate form of Reparation is predetermined by international law, instead of being a matter of some flexibility. See James Crawford, Third Report on State Responsibility, UN Doc. A/CN.4/507, at 4-6, 12-13 (2000) [hereinafter Crawford, Third Report]. The shift to obligations 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 Settlement 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 Uruguay Round of Multilateral Trade Negotiations 354 (1999); and the noncompliance procedures established pursuant to the Montreal Protocol 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 Special Rapporteur F. V. García-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] 2 Y.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 parties are restored to the positions they held before the wrongful act occurred. See Shelton, supra note 9, ch. 2 (“Theories of Remedies”).

29 The role of equity appeared in the Meuse case. In his individual opinion, Judge Hudson quoted the applicable Reparations language from Chorzów Factory, 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 Weil, Prosper, L’équité dans la jurisprudence de la Cour internationale de Justice, in Fifty Years of ICJ, supra note 15, at 121 Google Scholar.

30 Part 2 is entitled “Content of the International Responsibility of a State” and Article 28 specifies that an internationally 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 accomplished 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 May23, 1969,Art.60,1155 UNTS 331. See also the Gabčíkovo-Nagymaros Project case, where the ICJ held that the bilateral agreement remained in force, despite continuing material breaches by both sides. Gabčíkovo-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.

35 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 guarantees 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.

39 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.

40 Arrest Warrant, supra note 19.

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 of Judges 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 30, where the adjudicator refused to order a return to the status quo ante. The French breached an obligation to detain 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.

47 Commentaries, Art. 14, para. 1.

48 The articles do not identify any peremptory norms, although the commentary gives as examples the prohibitions 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.

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] 2 Y.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 Responsibility 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, 1996ICJ 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 Tracrtion Judgment 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 discrimination— 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 Government of the United States of America (Mar. 1, 2001) (on file with author), excerpted in Sean, D. Murphy, Contemporary Practice of the United States, 95 AJIL 626 (2001)Google Scholar.

54 See, e.g., Christos, L. Rozakis, The Concept of Jus Cogens in the Law of Treaties (1976)Google Scholar; Suy, Eric, The Concept of Jus Cogens in Public International Law, in 2 Carnegie Endowment for International Peace, Papers and Proceedings, The Concept of Jus Cogens in International Law 17 (1976)Google Scholar; Verdross, Alfred, Jus Dispositivum and Jus Cogens in International Law, 60 AJIL 55 (1966)Google Scholar. For critiques of the concept of jus cogens, see Anthony D’Amato, It’s a Bird, It’s a Plane, It’s Jus Cogens!6 Conn. J. Int’l L. 1 (1990); Weil, Prosper, Towards Relative Normativity in International Law ? 77 AJIL 413 (1983)Google Scholar.

55 Commentaries, Art. 40, para. 2.

56 The articles on peremptory norms in the Vienna Convention on the Law of Treaties were the most controversial 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 customary 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 of jus cogens norms despite its obvious relevance to the issues in the case. The dissenting opinion of Judge Al-Khasawneh states that combating 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>.

60 Commentaries, Art. 40, para. 3.

61 The literature is Replete with asserted examples of such norms, from the prohibition of genocide to the duty to assassinate dictators. See, e.g., Louis, René Beres, Prosecuting Iraqi Crimes Against Israel During the Gulf War: Jerusalem’s Rights Under International Law, 9 Ariz. J. Int’l & Comp. L. 337 (1992)Google Scholar (jus cogens obligation to assassinate in particular circumstances); Reyham, Patricia, Genocidal Violence in Burundi: Should International Law Prohibit Domestic Humanitarian Intervention?’ 60 Albany L. Rev. 771 (1997)Google Scholar (genocide); Upadhye, Shashank, The International Watercourse: An Exploitable Resource for the Developing Nation Under International Law’? 8 Cardozo J. Int’l & Comp. L. 61 (2000)Google Scholar (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 annexation 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 recognition 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).

63 Commentaries, Art. 41, para. 3.

64 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 See SC Res. 216, UN SCOR, 20th Sess., Res. & Dec, at 8, UN Doc. S/INF/20/Rev.l (1965).

66 See SC Res. 662, supra note 62.

67 See Namibia case, supra note 62, at 56. 68 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).

69 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.” Emerde Vattel, The Law of Nations, bk. II, ch. IV, §52 (Joseph Chitty ed., Philadelphia, T. & J. W. Johnson, 5th ed. 1839). More recently, García-Amador posited that Reparations traditionally have included a compensatory element (restitution or damages) and a punitive one (satisfaction). 2 F. V. García-Amador, The Changing Law of International Claims 567 (1984).

70 See, e.g., Kaplow, Louis & Shavell, Steven, Accuracy in the Assessment of Damages, 39 J. L. & Econ. 191 (1996)Google Scholar.

71 See the works cited supra note 22.

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. 111. 1988), 1988 U.S. Dist. LEXIS 16832, aff’d 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 Selçuk andAskerv. Turkey, 1998-11 Eur. Ct. H.R. 891, para. 119; Velásquez Rodríguez, 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 Dictionary of The English Language 380 (3d ed. 1992).

79 See Selçuk 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)Google Scholar.

81 1 John, Bassett Moore, International Arbitrations to Which the United States Has Been a Party 495-682 (1898)Google Scholar.

82 Commentaries, Art. 31, para. 10 (citing Islamic Republic of Iran v. United States of America, Cases No. A15 (TV), A24, 32 Iran-U.S. CI. Trib. Rep. 115 (1998)).

83 While punitive damages are excluded, the gravity of the breach and the responsible state’s motivation have an impact on several aspects of state responsibility, including the scope of the obligations of cessation and Reparation. Id., Art. 33, para. 1.

84 Gabčíkovo-Nagymaros Project, supra note 34, at 55, para. 80 (stating that the principle of mitigation might provide a basis for the calculation of damages); Well Blowout Control Claim, supra note 79, at 502-03 (noting that “under the general principles of international law relating to mitigation of damages,... the Claimant was not only 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. Corfu Channel (UK v. Alb.),Assessment of the Amount of Compensation, 1949 ICJ Rep. 244,250 (Dec. 15). For a shifting of the burden of proof to the responsible state to prove lack of or reduced causation, see Zafiro Case (Or. Brit. v. U.S.), 6R.I.A.A. 160, 164-65 (1925).

86 LaGrand Case, supra note 15, paras. 57,116 (noting that had its submission included a claim for indemnification, 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 concerning injury to aliens; the LaGrand case, in which Germany made extensive use of the draft articles, is the rare modern 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 Gabčíkovo-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.

93 Id., para. 125; see also id., para. 127, dispositif para.. 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.

94 Commentaries, Art. 34, para. 2.

95 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, 1999ICJ Rep. 9 (Mar. 3); Vienna Convention on Consular Relations (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).

96 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).

98 Commentaries, Art. 37, para. 2, and examples given at para. 8.

99 Id., para. 4.

100 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 bv 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:

Rainbow Warrior, supra note 36, at 272-73; see also Arrest Warrant, supra note 19 (finding by the Court of international responsibility deemed satisfaction for the moral injury suffered by die Congo); Corfu Channel, supra note 16, at 35, 36 (finding the declaration of a violation in itself appropriate satisfaction).

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:

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 Gabčíkovo-Nagymaros case, some sort of renegotiation or reinterpretation may be necessary.

105 Chorzów Factory, Indemnity, supra note 8, at 47.

106 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).

107 The ICJ continues to quote and apply the Chorzów Factory formulation, which refers to the situation that “would have existed” if there had been no breach. See, e.g., Gabčíkovo-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 Chorzów 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.

111 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.

113 Art. 42(3); see Crawford, Third Report, supra note 25, paras. 38-39.

114 Gabčíkovo-Nagymaros Project, supra note 34, para. 150.

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., Chorzów Factory, Indemnity, supra note 8, at 47; Corfu Channel case, supra note 16.

118 Gabčíkovo-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 compensated 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.

124 Human rights tribunals typically see this as their primary function and compensate for injuries on an equitable basis.

125 In his Third Report, Crawford refers to the problem of discretion and the considerable flexibility shown by 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.l7.

126 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 nonmaterial 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

“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. 387, 389 (1903). Such amounts are usually increased where conditions of confinement are abusive. McNeill (Gr. Brit./ Mex.),5R.I.A.A. 164, 168 (1931).

130 See, for example, the claims presented to and accepted by the Inter-American Court of Human Rights in Aloeboetoe, Reparations, Inter-Am. Ct. Hum. Rts. (ser. C) No. 15 (1993). As the ILC commentary notes, the decisions 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.

131 Commentaries, Art. 36, para. 21.

132 See, e.g., Oscar Chinn Case, 1934 PCIJ (ser. A/B) No. 63, at 65.

133 Commentaries, Art. 36, para. 34.

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, at32 (Aug. 17); M/V “Saiga,” supra note 6, para. 173; Iran v. United States (Case A-19), 16 Iran-U.S. CI. Trib. Rep. 285, 289-90 (1987).

136 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; Velásquez Rodríguez, 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 occurred, but only from the date of the Judgment, when Reparations were ordered and an amount fixed. S.S. “Wimbledon,” 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).

140 Interpretation of Judgments Nos. 7 and 8 [Chorzów 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 Law and Practice (Naomi, Roht-Arriaza ed., 1995)Google Scholar; Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Neil, J. Kritz ed., 3 vols. 1995)Google Scholar.

143 The UN Secretary-General’s office is frequently engaged in the “informal” forms of peaceful dispute settlement enumerated in Article 33 of the UN Charter. See generally Thomas, M. Franck & Nolte, Georg, The Good Offices Function of the UN Secretary-General, in United Nations, Divided World 143 (Roberts, Adam & Kingsbury, Benedict eds., 2d ed. 1993)Google Scholar.

144 Francioni, Francesco, Dispute Avoidance in International Environmental Law, in Economic; Globalization and Compliance with International Environmental Agreements (forthcoming 2003)Google Scholar.

145 Trail Smelter Case, supra note 79.

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. Kiss, Alexandre & Shelton, Dinah, International Environmental Law, 551-52 (2d ed. 2000)Google Scholar; 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)Google Scholar. The absence 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 responsibility for the conduct of nonstate actors; the enormous cost and often impossibility of restitution or environmental 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 (Shelton, Dinah ed., 2000)Google Scholar; Compliance with International Environmental Agreements (Edith, Brown Weiss & Harold, K. Jacobson eds., 1996)Google Scholar; The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (David, G. Victor, Raustiala, Kal, & Eugene, B. Skolnikoff eds., 1998)Google Scholar; José, E. Alvarez, Why Nations Behave, 19 Mich. J. Int’l L. 202 (1998)Google Scholar; Harold, Hongju Koh, Why Do Nations Obey International Law? 106 Yale L.J. 2599 (1997)Google Scholar. On the debate about compliance mechanisms in the human rights field, see Laurence, R. Heifer & Anne-Marie, Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L. J 273 (1997)Google Scholar; Henry, J. Steiner, Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee? in The Future of UN Human Rights Treaty Monitoring 15 (Alston, Philip & Crawford, James eds., 2000)Google Scholar. Concerning WTO dispute settlement processes, see John, 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’y Int’l Bus. 739 (2000)Google Scholar; Joel, P. Trachtman, Bananas, Direct Effect and Compliance, 10 Eur. J. Int’l L. 655 (1999)Google Scholar; Edith, Brown Weiss, Strengthening National Compliance with Trade Law: Insights from Environment, In New Directions in International Economic Law: Essays in Honour of John H. Jackson 457 (Bronckers, Marco & Quick, Reinhard eds., 2000)Google Scholar.

148 See, e.g., Robin, R. Churchill & Ulfstein, Geir, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 AJIL 623 (2000)Google Scholar; Stephen, J. Toope, Emerging Patterns of Governance and International Law, in The Role of Law in International Politics 91 (Byers, Michael ed., 2000)Google Scholar; see also Chayes, Abram & Antonia, Handler Chayes, The New Sovereignty (1995)Google Scholar.

149 Chayes & Chayes, supra note 148, at 30.

150 Charnovitz, Steve, Rethinking WTO Trade Sanctions, 95 AJIL 792 (2001)Google Scholar; Cooper, Richard, Trade and the Environment, 5 Env’t & Dev. Econ. 501 (2000)Google Scholar.

151 Concerning fairness in international governance, see Thomas M. Franck, Fairness in International Law and Institutions (1995). In the con text of WTO dispute settlement, see Charnovitz, Steve, Triangulating the World Trade Organization, 96 AJIL 28, 39-43 (2002)Google Scholar.

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)Google Scholar.

153 Id. at 709.

154 See id. at 709-10.

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 of judgments 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., David, J. Bederman, The United Nations Compensation Commission and the Tradition of International Claims Settlement, 27 N.Y.U.J. Int’l L. & Pol. 1 (1994)Google Scholar.