Award of Compensation by International Tribunals in Inter-State Cases: ICJ Decision in the Diallo Case
This week, the International Court of Justice decided that the Democratic Republic of Congo is obliged to pay $95,000 to the Republic of Guinea for material and non-material injury arising out of the DRC’s violations of the human rights of a national of Guinea. The case was an old fashioned case of diplomatic protection brought by one State in respect of violations of international law committed towards its nationals by another State. The ICJ decided the case on the merits in 2010 and held that while DRC had violated the rights of Mr Diallo under the International Covenant on Civil and Political Rights and under the African Charter of Human Rights. In 2007, the Court rejected the admissibility of claims brought by Guinea on behalf of companies/firms in which Mr Diallo had an interest. I have a comment about this recent judgment and will then pose a couple of question to readers. The questions will form part of what I hope will be a regular series of trivia questions about international law on the blog. I will have more to say about that series in a future post. For now, let me say that we have a prize on offer to induce you to take part in answering the questions.
In it’s commentary to Art. 36 of the Articles on State Responsibility (which deals with compensation), the International Law Commission noted that: “Of the various forms of reparation, compensation is perhaps the most commonly sought in international practice.” (p. 99, para. 2) However, it is interesting to note that this is not so in the practice of ICJ cases. There, it is the declaration of non-compliance that is often sought. I am not sure why this is so.
The ICJ’s judgment of this week is only the second time that the Court has decided on the amount of compensation owed by a State to another with respect to violations of international law found by the Court. The only previous case in which the Court has done this was the ICJ’s first contentious case – The Corfu Channel Case (United Kingdom v. Albania), (1949). Sometimes, parties will reserve the right to ask the Court for compensation but then fail to do so. In the late 1980s, Nicaragua was poised to pursue its compensation claim after its successful case against the US with regard to Military and Paramilitary Activities in and Against Nicaragua. In fact, Nicaragua had filed its memorial on compensation in which it claimed billions of US dollars, and the Court had written to Nicaragua to say it was minded to fix oral hearings on compensation for October 1990. However, in 1990 there was a change of government in Nicaragua which led to a decision to drop the compensation claim. Last year, Nicaraguan President Daniel Ortega who was President at the time of the acts in the 1980s and reelected in 2006 proposed a referendum on whether Nicaragua ought to revive the compensation claim.
ICJ cases are, of course, inter-State cases. In tribunals dealing with mixed claims, i.e claims by individuals or corporations against a State, compensation is often sought and awarded. This is true both with regard to human rights claims and investment treaty arbitration. As the Diallo case was a case of diplomatic protection (a rare recent example) it is comparable to the mixed claims where the seeking and granting of compensation is rather common. Indeed, there are many instances of States seeking and being awarded compensation in cases of diplomatic protection. In the past few decades, examples would include the work of the Iran-United States Claims Tribunal.
Comments by readers as to why States rarely seek compensation in inter-State case, which do not involve diplomatic protection would be welcome. I also have a more specific question for readers. In the last 30 years (an arbitrary cut off date), have there been any awards of compensation by international tribunals in inter-State cases where the award of compensation was for a direct injury to the State arising from a violation of international law? To clarify, I am asking for cases where compensation was awarded by an international tribunal to one State for violation by another State of international law other than cases of diplomatic protection. So, a case like the Diallo case would not count?