A Common Approach to Remedies in International Courts and Tribunals

02-03

Remedy is a judicial relief which legal systems provide for the enforcement or defence of substantive rights. Most constitutive instruments of international courts and tribunals do not contain detailed rules on remedies. The rules in this regard usually develop through jurisprudence of various ICTs, which contribute to the formation of secondary rules on the legal consequences of internationally wrongful act. With proliferation of international courts and tribunals, increasing practice by states to resort to international adjudication, and the codification of ILC articles on state responsibility, it』s time to re-examine to rules of remedies to see whether there is some common law amongst the various international courts and tribunals. This essay firstly briefly examined the source of power to award remedies. It then turns to three forms of remedies available under international law. There are, however, some disagreements on how to apply these forms of remedies. The essay finally assesses the rules of remedies under WTO regime, which constitutes a lex specialis on rules of remedies.

Source of Power to Award Remedies[1]

Some statutes of some international courts and tribunals are silent on remedies, while some explicitly contain rules on remedies (such as PCIJ, ICJ, ITLOS, ECHR, IACHR, WTO). In ICJ, for example, remedies can only be awarded in disputes submitted under Art. 36(2), optional clause jurisdiction. But it may be possible remedies are awarded in cases the jurisdiction over which was established through compromis, if states specifically empower ICJ to award remedies (eg. Continental Shelf case between Tunisia and Libya and between Libya and Malta) In article 304, UNCLOS provides simply that any provisions in UNCLOS regarding responsibility and liability for damage are without prejudice to the application of existing secondary rules regarding responsibility and liability under international law. As to WTO, the DSU carries detailed and specified rules on remedies. It differs from general rules in two aspects: Firstly, the availability of remedies in WTO dispute settlement regime is not dependent on the pre-determination of an international wrongful act. Disputes under DSU may be that a member of WTO considers that benefits accruing to it are impaired by measures taken by another member. Secondly, the primary objective of remedy under WTO is not to wipe out illegal consequences of internationally wrongful act, but to ensure the measures concerned are in conformity with any covered agreements.

『Reparation』 as Remedy in International Law[2]

It was generally accepted in some early arbitrations and PCIJ that states are under obligations to make reparations for internationally wrongful act. Factory at Chorzów affirmed that 『reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.』 Reparation can take three forms: restitution, compensation and satisfaction. It is acknowledged in Factory at Chorzow that restitution has primacy over the rest. ILC also confirmed that it should be awarded as a first consideration unless it is not materially impossible. If the applicants seek for other measures of reparation other than restitution, or if the restitution measures cannot achieve full reparation, other measures of reparation are available. For injuries that are financially assessable, compensation is a widely-sought measure in international courts and tribunals; while for damages like moral injuries, applicants may seek for satisfaction. Satisfaction can take forms of『an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality』(ILC ASR)and even a declaration on the illegality of the conduct by a competent court (eg. Arrest Warrant Case.)

Although there are broad agreements on the guiding principles of remedies as a secondary rules with regard to state responsibility for internationally wrongful act, disagreements exist in may aspect. Firstly, it is doubtful whether all the three forms of reparation are available or appropriate in each individual case in different ICTs. For example, a declaratory judgment of the illegality of certain acts may be adequate in some courts (such as judgment on issues of maritime delimitation in ICJ, ITLOS) may be inadequate in other courts (pecuniary compensation rather than just a declaratory judgment may be more appropriate in ICSID cases). Secondly, difficulties exist in application of the remedies due to unsettled state of law. For example, disputes exist with regard to standard of compensation and method of valuation. Thirdly, there is some uncertainty concerning power of international courts to issue mandatory or consequential terms. Haya de la Torre seems to suggest the judgment of ICJ is not mandatory orders imposing obligations on parties to execute the judgment, while there are some recent case which suggests the opposite. There are also other controversial issues such as the availability of punitive damages in international law, the power of ICTs to make orders for costs, the power to award interest and method of calculation of interest, etc.

Forms of Reparation in Particular Disputes [3]

Restitution

Restitution is the primary form of reparation, although it might not be appropriate in every case. ICJ has awarded restitution on several occasions. Examples of restitution can be to return certain objects back to the country of origin (Temple of Preah Vihear) , to redress the situation resulting from the event in question (Tehran Hostage), cessation of the construction of a bridge (Passage through the Great Belt), and to return land seized (Wall Advisory Opinion). It is also possible to seek restitution in ITLOS which clearly recognized this by referring to Factory at Chorzow and ILC Draft Articles on State Responsibility. (M/V 『Saiga』 (No 2),) Restitution may also be available if can order for 『prompt release』 of detained vessel and its crew is sought in ITLOST under Art. 292(1) of UNCLOS. Despite of the recognition, there are few cases in ITLOS which actually resorted to institution. M/V Saiga, for example, is a case in which restitution was expressly sought but was materially impossible in the case.

Compensation

Compensation was a commonly awarded measure of reparation in many ICTs (esp. ICSID). However, ICJ only awarded compensation in one occasion (Corfu Channel) and it is the same with ITLOS (M/V 『Saiga』). Three questions need to be distinguished with regard to compensation: first, the availability of compensation as a remedy; second, the types of damage which can be compensated; and third, the method of assessing the quantum of compensation. For the first two issues, there are general agreement but for the third one, there is some differences in the way ICTs approach the question. Turning to the second question, there are essentially three types of claim for compensation identified by ICTs: (1) financially assessable damage to state interests; (2) damage to privately owned property; (3) compensation claims for personal injury. For the first type, the limited case law indicate that all financially assessable losses may be compensated. In Corfu Channel, Albania was required to make compensation for replacement of the damaged vessels in question, and costs associated with death and injuries of naval personnel (such as cost for pension, medical treatment, costs of administration, etc). For the second type, there is large amount of jurisprudence considering compensation with regard to private property. In Factory at Chorzow, PCIJ ordered an expert inquiry regarding the compensation to be awarded although the parties finally made an agreement on the amount of compensation. In M/V 『Saiga』 (No 2), the ITLOS awarded compensation with interest for reparation of the M/V 『Saiga』, losses with regard to charter hire and compensation for value of gasoil charged. For the third type, there has been no such case in ICJ but ITLOS has awarded compensation for injuries of naval staff in M/V Saiga. Despite of agreements on the availability of compensation and types of claims for compensation, disputes exist among ICTs on the standard of compensation and measures of calculating compensation. For example, in M/V Saiga, two victims cited jurisprudence of other international courts (IACHR and ECHR) to calculate the amount of compensation for moral harm caused by excessive use of force and detention, while ITLOS rejected their arguments. This case demonstrates that referring to jurisprudence on assessment of compensation of other ICTs is not destined to succeed and common practice in this regard is relatively limited. Moreover, the measure of calculation of compensation is inconsistent in a single court alone (for example, 『fair market value』 was previously accepted by ICSID tribunals as a way of assessing compensation but doubt of this persist in recent arbitrations) not to mention the differences among different ICTs.

Declaratory Judgments

ILC states that declaratory judgment is one of the most common modalities of satisfaction. This is a common form in ICJ (such as Arrest Warrant case) and is also affirmed by other ICTs (PCA tribunals, ad hoc tribunals, ITLOS, ICSID tribunals, while human rights courts sometimes restricts their judgments to declarations). It is an appropriate remedy in inter-state disputes concerning interpretation and application of treaty provisions, or location of frontiers. While private interests are involved, declaratory judgments tend not to be useful.

Mandatory or Consequential Orders

A 『mandatory』 or 『consequential』 order is one that directs the respondent state to take or abstain from some forms of specific action, such as orders for specific performance. It is suggested that mandatory orders may not be a proper judicial remedies in international law. In Factory at Chorzow, for instance, the PCIJ observed that the court does not have to consider the 『contingency of a judgment not being complied with』. The tribunals role is merely to determine the rights and obligations in question and the means of compliance is out of its scope of contemplation. Further authority can be found in Haya de la Torre, ICJ ruled that there are multiple ways to implement the judgment in question and refused to indicate the specific means to be employed. This was later indorsed in ICJ jurisprudence (Northern Cameroons, Nuclear Tests, Nicaragua, Arrest Warrant). Decisions of other ICTs can also support in this regard (eg. Marckx v. Belgium in ECHR; the power of panel and AB under DSU to make non-binding recommendations). Notwithstanding the general reluctance to make such orders, there is increasing practice in ICTs rendering such orders, such as Temple of Preah Vihear and Tehran Hostages mentioned above. In LaGrand, ICJ clearly considered that it had the power to declare that US give assurances and guarantees of non-repetition of the wrongful act in question, though it refrained from making such an order. In Arrest Warrant, ICJ held that Belgium must cancel its warrant of arrest. Despite of some differences in approach, international courts are increasingly prepared to issue such judgments. [4]

Remedies in WTO Dispute Settlement

Different from constitutive instruments of other ICTs, DSU has extensive provisions on remedies, which constituted a lex specialis. As for the availability of remedies, there are three types of claims states may make to seek for remedies: 『violation complaints』, 『non-violation complains』 and 『situation complains』. Each of them may entail different forms of remedies. WTO remedies differ from general rules primarily because WTO remedies do not depend on a pre-existing violation of obligations. As long as a state』s benefits under covered agreements are 『nullified』 or 『impaired』 by measures taken by other states, regardless of whether it』s a violation of treaty obligations or not, remedies can be sought. Another striking differences lies in that the primary remedy in WTO dispute settlement is the recommendation that a member state bring its trade measures into conformity with its obligations, which is not retrospective in nature. The other remedies under WTO dispute settlement, compensation and suspension of concessions are also forward-looking. It offers relief for harm that the complaint probably will suffer if the measures are executed. Despite of the above differences, WTO dispute settlement is to some extent influenced by the general rules of reparation. In Australia –Leather and Guatemala –Cement II, the prospective nature of WTO remedies was tested by complaints. It is suggested in the panel reports of the two cases that the obligation on states responsible for an internationally wrongful act to make reparation has some relevance in awarding of remedies in WTO dispute settlement.

Conclusion

The following conclusions can be made with regard to the question whether there are common practices among ICTs concerning remedies. Firstly, despite of absence of express provision, there is general agreements among ICTs that states responsible for internationally wrongful act are obliged to make reparation. Secondly, all international courts have power to award remedies. Thirdly, there are three forms of reparation generally available among ICTs: restitution, compensation, and satisfaction (usually in the modality of declaratory judgments). But not all the three forms are necessarily available and appropriate in various ICTs (this may depend on various of factors, such as the nature of disputes, the identify of parties, the nature of the ICTs seized of the dispute etc). Fourthly, there is less consistency in the manner the remedies are awarded. This can be seen in the approach of evaluation of compensation. Fifthly, international courts are increasingly recognizing that they have the power to issue judgments and awards in mandatory form. Finally, the remedial regime in WTO DSU is a lex specialis, differs from the general rules on reparation in several aspects, including its objectives and non-availability of retroactive remedies. Nonetheless, some GATT and WTO practice demonstrates that the general rules of remedy to some extent have some influence in this regard. All in all, there is general agreements among ICTs on the availability of the three forms of reparation as judicial relief, but there is less common practice on how the courts award the remedies , and the regime of remedies under WTO constitute a lex specialis.

[1] pp. 187-9.

[2] pp. 190-6.

[3] pp. 195-216.

[4] P. 215-6. There are some omissions regarding this point.