Document:- A/CN.4/134 and Add.1 Sixth Report on International Responsibility by Mr. F.V. Garcia Amador, Special Rapporteur Topic: State responsibility Extract from the Yearbook of the International Law Commission:- 1961 , vol. II Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm) Copyright © United Nations INTERNATIONAL LAW COMMISSION DOCUMENTS OF THE THIRTEENTH SESSION, INCLUDING THE REPORT OF THE COMMISSION TO THE GENERAL ASSEMBLY STATE RESPONSIBILITY [Agenda item 3] DOCUMENT A/CN.4/134 & ADD.l International responsibility: Sixth report by F. V. Garcia Amador, Special Rapporteur RESPONSIBILITY OF THE STATE FOR INJURIES CAUSED IN ITS TERRITORY TO THE PERSON OR PROPERTY OF ALIENS — REPARATION OF THE INJURY [Original: Spanish] [26 January 1961] CONTENTS Page Page INTRODUCTION 2 14. Pecuniary satisfaction 22 15. Satisfaction in cases involving injury to individuals ... 24 Chapter I (a) Application of typical measures of satisfaction ... 24 THE DUTY TO MAKE REPARATION (b) The award of pecuniary satisfaction 26 16. The appropriateness of certain measures of reparation . 28 1. The " duty to make reparation " in traditional inter- national law Chapter III 2. Other special features of the traditional concept 3. Nature and scope of the duty to make reparation THE REPARATION OF INJURY CAUSED TO THE ALIEN 4. The problem of " sources " 17. Difficulty of repairing such injuries 29 5. The problem of terminology 18. The reparation of personal injuries in general 30 (a) Deprivation of liberty and expulsion 30 Chapter II (b) Bodily and mental injury and violent death 31 THE INJURY AND THE FORMS AND FUNCTIONS (c) Moral injury 32 OF REPARATION IN GENERAL 19. Reparation in cases of injuries caused by acts of in- dividuals 34 I. The different categories of injury 20. Reparation of a "punitive" character (punitive damages) 35 6. Possible classifications 8 21. The reparation of damage to property in general 37 7. Injury caused to an individual 9 (a) Damage caused by individuals: circumstances in 8. The " moral injury " caused to the State through injuries which reparation is warranted 37 to private individuals 10 (b) Damage caused during internal disturbances 38 9. " Moral and political" injury stricto sensu 11 (c) Damage caused by official measures 38 (d) Expropriation and similar measures distinguished II. The various forms and functions of reparation from other measures 39 10. Reparation lato sensu 22. Reparation for " indirect" damages or injury 40 (a) The traditional forms of reparation 13 23. Reparation for interest, expenses and costs 42 (b) " Declaratory judgements " 14 24. En bloc reparation 42 11. Reparation stricto sensu 16 25. The limitation of reparation and extenuating circum- (a) Methods of restitution 17 stances 43 (6) Damages 18 CONCLUSIONS 44 12. The essential characteristics of satisfaction 19 13. Typical measures of satisfaction 20 Addendum .. 46 Yearbook of the International Law Commission, Vol. II INTRODUCTION Chapter I THE DUTY TO MAKE REPARATION 1. Of all the questions involved in the subject of international responsibility, reparation alone combines 1. The "duty to make reparation" in traditional inter- two distinguishing features: it cannot be considered national law without constant reference to virtually every problem or principle connected with responsibility as a whole; 4. In his first report (A/CN.4/96) the Special Rappor- and the diplomatic and arbitral practice, as also the teur endeavoured to stress the distinctly special charac- writings of the authorities thereon, are at present in teristics of reparation when considered in the light of a state of complete anarchy. As far as the first point is traditional international law. By contrast with municipal concerned, the " duty to make reparation " is, above law, where the institution is already perfectly defined g.11, an obligation stemming from the non-fulfilment in both character and function, in international rela- of international obligations; to that extent, therefore, tions it retains a close link with the idea of punishment it tends to merge and become identified with the very or penalty; in other words, with the idea of a sanction notion of responsibility. Since it is concerned with the or censure of the wrongful act which caused the injury resulting from the acts or omissions which give injury. It is useless to contend that an act or omis- rise to responsibility, that duty is directly related to sion contrary to international law has no other conse- one of the component elements of responsibility; and quence than to impose upon the State to which it is it is also to a considerable extent bound up with an- imputable an exclusively " civil " responsibility — i.e., other of those elements, for reparation often depends the duty to repair, purely and simply, the damage caused not only on the injury but also on the gravity of the by the act or omission. A study of diplomatic practice act or omission which caused it. If the subject is viewed and international case-law, as also of the writings of publicists, immediately shows that this obligation stem- from another angle — without suggesting in any way ming from the wrongful act or omission may have, and that the interrelationship discussed here will thereby in practice often does have, other consequences. be fully outlined — it will be noted that some of the modes of reparation are similar in form to the " com- 5. In traditional international law, the " duty to make pensation " due in respect of certain measures which reparation " comprises both reparation proper (restitu- affect the patrimonial rights of aliens. As to the anarchy tion, damages, or both) of the injury caused to an alien prevailing in the matter, it cannot be attributed to any or to the State itself, as a body corporate, and the mea- single cause; obviously, however, it is largely the result sures of " satisfaction " which have frequently accom- of the political factors introduced by the traditional panied those of reparation stricto sensu. The latter, concept of responsibility. determined much more by the nature of the imputable act than by the injury actually caused, are essentially 2. This last fact explains the space allotted to " satis- " punitive " in character and purpose. This is so obvious faction " in a study fundamentally concerned with the that it is perhaps hardly necessary to state it expressly, reparation of the real injury sustained exclusively by although such statements are often made. Moreover, the individual alien. In traditional international law, even measures of reparation in the strict sense are not this reparation is only one of the two forms of discharg- always directed towards a strictly " compensatory" ing the duty to make reparation. No purpose would objective. On occasions, again determined by the gravity therefore be served by considering it separately and in of the act causing the injury, reparation assumes a isolation. Moreover, at least in diplomatic practice and manifestly " punitive " character. In the circumstances, in certain private and official codifications, measures therefore, the Special Rapporteur feels bound to con- of satisfaction have in the past been regarded as means sider the " duty to make reparation " in the light of all of making reparation in cases which involve injury to these considerations, the purpose remaining at all times aliens. Accordingly, without prejudice to the conclu- to determine the extent to which the Commission will sions which may be reached on this point, it will first be able to codify the subject, as already stated in the be necessary to consider the question of " satisfaction " introduction, in conformity with the principles and at some length, principally because, in certain circum- trends of international law in its present state of develop- stances, the partial applicability of a type of measure ment. usually placed under that heading must still be ad- 6. Nor was reparation regarded, in traditional inter- mitted. national law, as the sole " consequence " of the wrong- ful act or omission imputable to a State. Both practice 3. In this report, consideration is also given to some and doctrine show that international responsibility was special modes of reparation and to certain questions regarded in the past as involving not only the duty to which there was no opportunity to examine in the make reparation but also the right of the injured State reports prepared with a view to the presentation to resort to the " sanctions " then recognized by inter- of the preliminary draft. The Special Rapporteur national law: reprisals and war. Viewed from such an hopes that all this will facilitate the Commission's angle, the problem is simply whether or not the exer- task when it undertakes the codification of the cise of that right is conditioned by the failure to make topic in conformity with the principles and trends reparation — in other words, whether the injured State of international law in its present state of develop- can immediately opt in favour of sanctions or whether ment. it is first obliged to demand reparation. The prevailing State responsibility opinion in doctrine has naturally always favoured the the political and juridical realities of his age: " Whoever second alternative, and the same can generally be said of maltreats a citizen indirectly offends the State which the practice followed by States.1 In that sense, repara- owes him protection...." 3 Subsequently, the idea was tion or the duty to repair is not only not the sole adopted and developed by the most eminent publicists, consequence of the act or omission contrary to inter- by governments in the exercise of diplomatic protec- national law, but rather is the condition sine qua non tion over their citizens abroad, and even by claims of the application of any of the aforesaid sanctions. commissions, culminating in the well-known statement It is not difficult to see, however, that this relation- of the Permanent Court of International Justice: "..