|The Right to Compensation: Basic Principles Under International Law
Compensation as Part of a Comprehensive Solution
to the Palestinian Refugee Problem
COLLEGE OF LAW
FOR THE INTERNATIONAL DEVELOPMENT RESEARCH CENTRE'S
WORKSHOP ON COMPENSATION FOR PALESTINIAN REFUGEES
Ottawa, July 14-15, 1999
The purpose of this background paper is to lay out
the fundamental principles and guideposts of the right
to compensation for injuries under general international
law. In effect, it is intended as an exegesis of the
phrase "principles of international law or equity"1
in paragraph 11 of UN General Assembly Resolution
194 (III), adopted December 11, 1948, upon which Palestinian
claims for refugee compensation are often based:
...and that compensation should be paid for the property
of those choosing not to return [to their homes] and
for loss of or damage to property which, under principles
of international law or in equity, should be made
good by the Governments or authorities responsible.
Such an analysis is necessary, in part, because General
Assembly resolutions are not binding in and of themselves.
While most GA resolutions are mere recommendations
made pursuant to Article 10 of the UN Charter, in
certain circumstances they can be considered persuasive
restatements of existing law or can, if repeated over
time, "achieve the effect of such binding force
through the acceleration of the custom-generating
process or through the doctrine of estoppel."2
While the specific jurisprudence pertaining to the
compensation of refugees per se is touched on only
in passing,3 the paper will discuss the law of state
responsibility -- the pre-requisite for compensation
-- and the standards for determining when compensation
is owed. It will then briefly survey recent developments
outside of the trade, commerce and investment context,
including the European and Inter-American Courts of
Human Rights and a number of other non-commercial
compensation contexts. A short glossary of relevant
terms is also appended.
The purpose of this paper is not to systematically
"apply" these principles and guidelines
to the specific case of Palestinian refugees. That
will be left for discussion during the workshop. Note
too that the bulk of international case law on compensation,
derived from such sources as the Iran-US Claims Tribunal,
the UN Compensation Commission and earlier arbitrations,
is dissimilar to the situation of Palestinian refugees
in a number of respects. Most cases typically concern
transnational corporate investment property, negotiated
commercial contracts such as oil concessions, or the
breach of bilateral commerce treaties rather than
general humanitarian or human rights law, and it involves
foreign nationals of existing states, in contrast
to the predominantly residential and agricultural
property of families and communities with such an
uncertain legal status as the Palestinians of 1948.
Nevertheless, the general law of compensation provides
a set of standards which can be used as a framework
for a negotiated resolution of the Palestinian compensation
The following section of this paper discusses the
basic principle of state responsibility for injuries
to other states and to individuals, the concept of
fault, and defenses and limitations on state responsibility.
The Legal Basis for
Compensation - State Responsibility
Claims for relief under international
law always begin with the law of state responsibility,
which is considered to consist of the "secondary
rules" that determine the legal consequences
of failure to fulfill substantive legal obligations,
which are considered the "primary rules."
(Examples of "primary" rules include the
obligation not to cause persons to become refugees
and the obligation not to use force to invade the
territory of another state.) According to the International
Law Commission (ILC)'s 1996 Draft Rules on State Responsibility,
every act by a state which is wrongful under some
"primary" rule of international law imposes
international responsibility on that state. Wrongful
acts occur when an injury is a) caused by conduct
consisting of an action or omission which is attributable
to the State under international law; and b) that
conduct constitutes a breach of an international obligation
of the State. It does not matter whether the "primary"
international obligation is found in customary law
or treaty; nor does it matter whether the same act
is considered lawful by the state's own internal law.
However, a breach only occurs "if the act was
performed at the time when the obligation was in force
for that State."4
A state that has committed such an internationally
wrongful act is obligated to a) discontinue the act
and restore the situation to the status quo ante;
b) apply remedies provided under its internal law
(if they exist) and to pay appropriate compensation
if restoration of the pre-existing status is impossible;
and c) provide guarantees that the act will not recur.5
A state to which a claim is made must negotiate in
good faith to resolve it. "[F]ailure of a state
to respond in good faith to a request for negotiation
may itself constitute a breach of an international
Injury to Nationals
and Stateless Persons
Traditionally, international law has applied only
to the relation between states. Thus, when a state
causes an injury to a private person who is an alien
(whether a natural person or a corporation), it is
deemed to be an injury to the foreign state of which
the alien is a national (or where the company is incorporated).
The injury can be to the national's human rights,
personal safety, property or other interests. When
a state, for example, expropriates the property of
foreign investors, the state of which the investors
are nationals has the option to diplomatically espouse
the alien's claim. A state's "espousal"
can take the form of negotiation, mediation, conciliation
(including by conciliation commission), arbitration,
adjudication, all of which require the respondent
state's consent, or, under limited circumstances,
nonforceful and proportional unilateral counter-measures.
The claimant state maintains control over the espoused
claim and can, in fact, waive it; payment of reparations
is made to the state, which would normally then turn
it over to the injured national.7
What happens in the case of stateless persons, such
as refugees, or members of a nation which does not
have its own state? In general, they are left without
such diplomatic protection. (This is one of the reasons
that international law prefers to avoid the condition
of statelessness.) In some situations, a state may
espouse a claim on behalf of permanent residents or
other non-nationals with which it has a territorial
nexus. In the case of refugees (stateless or not),
Luke Lee has argued that "[s]ince the United
Nations is the guardian of the interests of refugees,
the conclusion is inescapable that it has not only
the capacity to bring an international claim against
a refugee-generating country on behalf of refugees,
but even the duty to do so as a guardian."8 Moreover,
human rights law imposes obligations on all states
to protect the rights of all individuals, whether
nationals, aliens or the stateless. (Nevertheless,
actual international mechanisms for claiming remedies
under human rights law are limited in application
and scope. Regional human rights courts do not exist
for persons living outside of Europe and North and
Fault and Defenses
A relevant question is whether international law requires
that a state be found to be at fault in order to make
redress for injuries. In other words, is all "wrongful"
international conduct blame-worthy?
According to leading
jurist Ian Brownlie, international tribunals usually
follow the theory of objective responsibility: provided
that agency and causal connection ("attribution")
can be established, a breach of international law
occurs through the result alone. Even where a state's
agents have acted beyond their authority (ultra vires),
or, for that matter, in the absence of intention to
harm (dolus malus) or the presence of good faith,
it will bear responsibility for all its acts which
fail to conform to international legal standards.10
This approach may prove helpful in convincing Israel
that it can provide compensation without having to
Of course, motive and intention can be relevant when
a state argues that its action was justified by a
lawful circumstance precluding wrongfulness. Chapter
5 of the ILC's Draft Rules provides the following
possible defenses: consent; countermeasures (which
can be legitimate when the aggrieved state has itself
committed an internationally wrongful act); force
majeure and fortuitous event; self-defense; distress;
and state of necessity. The last two are perhaps the
most relevant as defenses for Israel. Wrongfulness
is precluded where a state, through its agent, "had
no other means, in a situation of extreme distress,
of saving his life or that of persons entrusted to
his care." However, this exception does not apply
when the state has contributed to the extreme distress
or if its conduct was "likely to create a comparable
or greater peril." A "state of necessity"
defense can only be invoked under even more limited
circumstances. This defense may not be invoked unless:
a) the act was the only means of safeguarding an essential
interest of the State against a grave and imminent
period; and b) the act did not seriously impair an
essential interest of the State towards which the
obligation existed. Even when these conditions are
met, wrongfulness is not precluded if the international
obligation arises out of a peremptory norm of general
international law; or the obligation is created by
a treaty which excludes the state of necessity defense;
or the state in question "has contributed to
the occurrence of the state of necessity."11
The next section of this paper discusses the remedies
that are available for violations of international
law. See the appendix to this paper for a glossary
of compensation-related terms.
Form and Standards
It has long been a general and undisputed principle
of international law, going back to Blackstone as
well as Grotius, that where there is a legal right,
there is also a legal remedy or action at law whenever
that right is invaded. This is the flipside of the
principle that states have the obligation to make
restitution for their wrongful acts and violations
of international law. Resolving issues over the nature
or extent of the reparation to be made for the breach
of an international obligation is, in fact, one of
the functions of the International Court of Justice
(ICJ). "Ordinarily, emphasis is on forms of redress
that will undo the effect of the violation."12
In the landmark 1928 Chorzow Factory Case involving
Polish expropriation of German-owned industrial property
inside Poland, the Permanent Court of International
Justice (predecessor to the ICJ) stated: "[R]eparation
must, as far as possible, wipe out all the consequences
of the illegal act and reestablish the situation which
would, in all probability, have existed if that act
had not been committed." The Court then ruled
that this can be accomplished through restitution
in kind, or if that is not possible, through just
compensation, meaning "payment of a sum corresponding
to the value which a restitution in kind would bear,"
and "the award, if need be, of damages for loss
sustained which would not be recovered by restitution
in kind or payment in place of it," such as lost
Until about 1974, this general standard, codified
in 1938 as the "Hull Formula," which called
for "prompt, adequate and effective compensation,"
predominated. In the 1970's, the "Calvo doctrine,"
under which non-industrialized states sought to immunize
themselves against alien property claims, recognizing
only "appropriate" compensation, was supported
by the UN General Assembly in its Charter of Economic
Rights and Duties of States. Since the end of the
Cold War, the Hull formula is more or less back in
favor.14 However, the ILC's 1996 Draft Rules on State
Responsibility provide three conditions in which either
full monetary reparations or restitution in kind might
be limited: 1) where reparation would "result
in depriving the population of a State of its own
means of subsistence"; 2) where in-kind restitution
would involve "a burden out of all proportion
to the benefit which the injuring State would gain
from obtaining restitution in kind instead of compensation";
and 3) where in-kind restitution would "seriously
jeopardize the political independence or economic
stability of the State which has committed the wrongful
act, whereas the injured State would not be similarly
affected if it did not obtain restitution in kind."
The ILC recognized in its own official Commentary
to these provisions that they were controversial,
involved admittedly extreme cases, and had been rejected
by some ILC members. Nevertheless, these exceptional
provisions have "nothing to do with the obligation
of cessation, including the return to the injured
State, for example, of territory wrongfully seized."15
The remainder of this paper briefly surveys some
further avenues of research into specific cases of
compensation which may make useful models for a Palestinian-Israeli
International law looks both to international and
regional institutions such as arbitration tribunals
and, where a consistent pattern emerges, the decisions
of national courts and legislatures, as sources of
customary international norms and standards. While
much has been written on the extensive case law of
the Iran-U.S. Claims Tribunal and the more recently
established UN Claims Commission (dealing with the
Iraqi invasion of Kuwait),16 other forums provide
some more directly applicable models for compensation.
Regional Human Rights
The European and Inter-American Courts of Human Rights
regularly award compensation to aggrieved individual
victims of human rights violations. In the recent
June, 1999 decision in Zubani v. Italy, the European
Court ordered compensation to four elderly Italian
nationals for unlawful municipal occupation of their
farm land. The Court factored into the amount owed
the fact that the municipality had laid a road through
a part of the applicants' property used to raise livestock,
which rendered accessdifficult to the plots ordered
returned to them.17 Construing and applying the article
on protection of property in the Council of Europe's
first Protocol to the Convention for the Protection
of Human Rights and Fundamental Freedoms, in a case
involving stockholder interests nationalized under
the 1977 British Aircraft and Shipbuilding Industries
Act, the European Court has also held that the taking
of property in the public interest without any compensation
is justifiable only in exceptional circumstances.
A fair balance must be struck between the demands
of the general interest of the community and the protection
of the individual's fundamental rights. A disproportionate
burden should not be imposed on individual owners.18
Beginning with its first contentious case, Velasquez
Rodriguez v. Honduras, the Inter-American Court has
ordered the payment of fair compensation to the next
of kin of "disappeared persons" and other
victims of gross human rights abuses, often calculated
according to the loss of earnings the victim would
have received up to the time of his possible natural
death, along with moral damages for the harmful psychological
impact on the victim's immediate family.19 To date,
only Europe and the Americas have Courts of Human
Rights with jurisdiction over individual claims --
and then, only with the consent of state parties to
the respective conventions and protocols -- though
an African Court to supplement the African Commission
on Human and People's Rights has been proposed for
consenting OAS member states.
War Reparation Cases
At least as early as the end of the Eighteenth Century,
customary international law has provided rights of
compensation to private persons during war against
the enemy state. Even before World War II, claims
commissions awarded compensation to survivors of civilians
killed during war and for destroyed property.20 The
International Criminal Tribunal for the Former Yugoslavia
provides that, after judgments of conviction, the
Trial Chamber may hold a special hearing to determine
the restitution of property, and the Tribunal's judgments
as to criminal responsibility of convicted persons
shall be considered final and binding in regard to
claims for compensation brought by victims in national
courts or other bodies.21 Other potential models include
German reparations to individual Holocaust survivors
and to the State of Israel,22 as well as recent developments
concerning Jewish assets and cultural property taken
by Swiss banks and other ostensibly "neutral"
Another avenue of comparison is the national legislation
of former Soviet bloc states which, since the fall
of the Berlin Wall, have offered restitution to both
nationals and non-nationals for property taken over
40 years ago by Communist governments as well as in
some cases, by the Nazi regime. For instance, Hungary
has awarded government vouchers constituting full
restitution, even for nominal losses of property.
Since the reunification of Germany, the government
has offered claimants either the return of their land
or its current market value in currency. Where property
cannot be returned, for instance when it has been
used for new enterprises or sold to bona fide purchasers,
the German government offers a choice of land of comparable
value, money, or shares of the new enterprise.23
Environmental and Aboriginal
National and international environmental law offers
a rich source of models of damage assessment, in which
the injured party is usually the national or international
community as a whole rather than private individuals.
In effect, the claimant is not former but future generations,
whose equitable interests in a clean and healthy environment
need to be protected now; payment of compensation
in the present is one way to discourage additional
Claims of indigenous peoples to title in native land
is, perhaps, an even more direct analogy for Palestinians.
Canada and Australia have been in the forefront of
the effort to make redress for land confiscation in
the distant past. Following the 1992 Mabo v. Queensland
judgment of the High Court of Australia, the federal
legislature adopted the 1993 Native Title Act (NTA),
which provides compensation to native title holders
whenever a validated past act of the Commonwealth
extinguished native title. For validated past acts
which did not extinguish title, the law provides compensation
when the original act was discriminatory, i.e. when
it could not have been done over non-aboriginal land,
or when it constituted an acquisition of property
on unjust terms.25
The "conclusion" is to be supplied by the
workshop participants in discussion.
Appendix: An International
Law "Compensation Glossary"
Compensation - payment
of monetary damages to one whose rights have been
violated by a breach of international law.
Damages - wrongful international
acts which should be remedied by restitution in kind
or if such is impossible, by payment of a sum corresponding
to the value which restitution in kind would have
Expropriation - either
the taking of private property by a state (or its
agent) or the transfer of the power of management
or control of a company to the state ("nationalization");
can be either lawful or unlawful. Generally, an expropriation
is unlawful when it is discriminatory, not for a public
purpose, or not accompanied by just compensation.
Indemnity - when used generally,
refers to compensation or reimbursement given to make
a person whole from a loss inflicted either by the
indemnifier itself or a third party (in which case
it is like insurance); includes consequential and
reasonable expectancy (e.g. lost profit) damages,
but not punitive or exemplary damages, which are not
usually given in international law; indemnity can
also mean a legislative act which assures a dispensation
or exemption from punishment or liability for offenses,
wrongs or acts in excess of authority.
Injury - a wrong or damage
to another, in relation to his or her person, rights,
reputation or property (common law; similar to "damages");
a delict committed maliciously or in contempt which
harms another's body, dignity or reputation (civil
Irreparable injury - an
injury that is so extensive or continuous that no
pecuniary standard exists which is adequate for its
Reparable injury - an injury
that is pecuniary in nature so that it can be fully
repaired by monetary compensation.
Reparations - the generic
term used to cover redress of an injury by a variety
of means, financial or otherwise, made by a sovereign
state; often used to refer to compensation claims
made by the victors or victims of war against the
vanquished state following the cessation of hostilities.
Compensation and restitution are two forms of reparations.
Remedies - the means by
which a right is enforced or the violation of a right
is prevented, redressed or compensated.
Restitution - remedy available
to an international claimant where property which
has been taken is returned to the original owner in
kind. It is designed to re-establish the situation
which would have existed if the wrongful act or omission
had not taken place, including by revocation of the
wrongful act, return of property wrongfully taken,
or abstention from further wrongful action.
Restitutio ad Integrum
- "restoration of the thing in whole" (Latin),
such as return of a building in its original condition.
Satisfaction - non-monetary
form of reparation for damages other than restitution
in kind when no actual damage occurred or where monetary
compensation is inadequate, such as a judicial condemnation,
punishment of guilty officials or official apology.
Unjust enrichment - equitable
doctrine that one should not be allowed to profit
or enrich oneself at another's expense, permitting
recovery where the one has received a benefit, retention
of which would be unjust.
ADAPTED FROM: James R. Fox, Dictionary of International
and Comparative Law (Oceana Publications, 1997);
Henkin, Pugh, Schachter & Smit, International
Law: Cases and Materials (West Publishing, 1993);
and Black's Law Dictionary (online edition).
law and equity are not mutually exclusive categories;
the former encompasses much of the latter. Equity
can allow for the recovery of damages where the strict
application of legal formulas is not available, under
theories of implied contract, constructive trust,
unjust enrichment and the like. On unjust enrichment
theories related to redress for expropriation of property, see e.g. Jimenez de Arechaga,
"State Responsibility for the Nationalization
of Foreign Owned Property," 11 N.Y.U. J. Intl
Law & Politics 179 (1978); Schreuer, "Unjustified
Enrichment in International Law," 22 Amer.
J. Comparative Law 281 (1974); and Oscar Schacter,
Sharing the World's Resources (1977).
T. Lee, "The Right to Compensation: Refugees
and Countries of Asylum," 80 Am. J. Intl.
Law 532, 545 (1986). Lee believes that Res. 194
has acquired such an authoritative status. Contrast
Yoav Tadmor, "The Palestinian Refugees of 1948:
The Right to Compensation and Return," 8 Temp.
Intl & Comp. Law J. 403, 413-417 (1994), who
asserts that 194 is only advisory while Resolution
181, on the partition of Palestine, may have been
binding under Article 80 of the Charter, concerning
League of Nations mandate territories. See also Sloan,
"Binding Force of a 'Resolution' of the General
Assembly of the United Nations," 25 Brit.
Y.B. Intl. Law 1 (1948), for an understanding
of this issue at the actual time of Resolution 194.
this specific topic, see Lee, "The Right to Compensation,"
supra.; Declaration of Principles of International
Law on Compensation to Refugees (adopted April
1992 by the International Law Association); and Luke
T. Lee, "The Preventive Approach to the Refugee
Problem," 28 Williamette Law Rev. 821
(1992). Note that methods and issues of the actual
valuation of property are also beyond the scope of
this paper. The international law rules on calculation
of damages, prospective profits, interest rates, incidental
expenses, etc. are, in fact, unclear. See generally
Richard Lillich, ed., The Valuation of Nationalized
Property in International Law (3 vol., 1972-1975).
1, 3, 4, 17, 18(1). Report of the International
Law Commission on the Work of its Forty-Eighth Session,
6 May - 26 July 1996 (A/51/10). (The ILC is a UN body
composed of geographically diverse legal experts.)
The state seeking redress has the burden of proving
these factors, while the respondent state has the
burden of establishing any defenses; these burdens
may shift to the party that has control over the evidence.
Thus, in the case of Palestinian refugees, the relevant
questions would be a) whether, in 1948 and 1949, the
flight of Palestinians from their homes was attributable
to the acts or omissions of the State of Israel; and
b) if so, whether the obligation not to cause persons
to become refugees was in force for Israel at that
Willem Riphagen, Fifth Report of the International
Law Commission on State Responsibility, UN Doc.
A/CN.4/380 and Corr. 1 (1984). "A State that
has violated a legal obligation to another state is
required to terminate the violation and, ordinarily,
to make reparations, including in appropriate circumstances
restitution or compensation for loss or injury."
Restatement (Third) of the Foreign Relations Law
of the United States, sec. 901 (The American Law
Institute, 1987)[hereinafter Restatement].
"For instance, if a foreign embassy has been
occupied by a mob, there is an obligation to remove
the mob and to return the embassy to its diplomatic
staff; there may also be an obligation to pay compensation
for the damage to the building and its contents, and
for the injuries and indignities suffered by the embassy
staff." Restatement sec. 901, Official
Comment d. (The ALI is a non- governmental organization
of U.S. legal experts. While the Restatement
is not an official codification, most of its provisions
are intended to reflect U.S. law.)
sec. 902, Official Comment f.
Donna E. Arzt and Igor I. Lukashuk, "Participants
in International Legal Relations," in Charlotte
Ku and Paul F. Diehl, International Law: Classic
and Contemporary Readings (Lynne Rienner Pub.,
"The Right to Compensation," supra., p.
551-552, relying on the World Court's advisory opinion,
Reparation for Injuries Suffered in the Service
of the United Nations, 1949 ICJ Rep. 174, 180
(concerning the death of Count Bernadotte). On protection
for refugees, see also Restatement sec. 711,
Reporters' Note 7. See generally the 1954 Convention
Relating to the Status of Stateless Persons.
UN Commission on Human Rights has noted that "the
question of restitution, compensation and rehabilitation
of victims of grave violations of human rights and
fundamental freedoms has received insufficient attention
and should continue to be addressed in a more systematic
and thorough way at the national and international
levels." Preamble to Resolution 1997/29. Yet
even the Commission is still in the process of investigating
this question. See its Resolution 1999/33.
Ian Brownlie, Principles of Public International
Law (2nd ed. 1973), pp. 423-428. Brownlie does
cite a few examples to the contrary where, for instance,
losses caused by acts of rebellion or by private individuals
were held not to give rise to state responsibility.
32 and 33. While it is possible to argue over each
of these conditions of distress or necessity, in this
author's opinion, regardless of who caused the refugees
to flee in 1948, it was not an "essential interest"
of the state of Israel after the 1949 Armistices to
either loot and destroy or expropriate Palestinian
property, nor to "institutionalize the blockage"
of its return to its owners. See Donna E. Arzt, Refugees
into Citizens: Palestinians and the End of the Arab-Israeli
Conflict (Council on Foreign Relations Press,
1997), p. 16. Moreover, permanent confiscation of
property is not normally needed to save lives. Note
that the Restatement proposes other possible
defenses to state responsibility: duress, impossibility,
waiver, acquiescence, and perhaps estoppel. Section
901, Official Comment a. For the official United States
response to the ILC's 1996 Draft Rules on State Responsibility,
see Marian Nash (Leich), "Contemporary Practice
of the U.S. Relating to International Law" 92
Amer. J. Intl. Law 243, 251-267 (1998).
sec. 901, Official Comment d. International tribunals
are given wide latitude to develop and shape remedies.
Id. See generally Hugo Grotius, De Jure Belli Ac
Pacis Libri Tres 12 (1625, English trans. by Francis
Kelsey, 1949); Marbury v. Madison, 5 U.S. (Cranch)
137, 163 (1803), quoting William Blackstone's Law
Commentaries; and Theo Van Boven, Study Concerning
the Right to Restitution, Compensation and Rehabilitation
for Victims of Gross Violations of Human Rights and
Fundamental Freedoms: Preliminary Report, UN Doc.
E/CN.4/Sub.2/1990/10. See Article 36(2)(d) of the
Statute of the International Court of Justice.
Factory Case (Germany v. Poland), 1928 PCIJ (Ser.
A) No. 17 (Judgment of Sept. 13, 1928).
Burns H. Weston, "The Charter of Economic Rights
and Duties of States and the Deprivation of Foreign-Owned
Wealth," in Ku and Diehl, supra; and Patrick
M. Norton, "A Law of the Future or a Law of the
Past? Modern Tribunals and the International law of
Expropriation," 85 Amer. J. Intl Law 474
42 and 43 and Commentary 8(a) and (b), Report of
the International Law Commission on the Work of its
Forty-Eighth Session, supra. It would be useful
to determine whether Israel has submitted official
responses to these particular Draft Articles.
e.g. Richard B. Lillich and Daniel Barstow Magraw,
eds., The Iran-United States Claims Tribunal: Its
Contribution to the Law of State Responsibility
(American Society of International Law, 1998); David
D. Caron and John R. Crook, eds., The Iran-United
States Claims Tribunal: Its Contribution to the Resolution
of International Claims (American Society of International
Law, 1996); George Aldrich, "What Constitutes
a Compensable Taking of Property? The Decisions of
the Iran-United States Claims Tribunal," 88 Amer.
J. Intl Law 585 (1994); Richard B. Lillich, The
United Nations Compensation
Commission (Transnational Publishers, 1995); David J. Bederman,
"The United Nations Compensation Commission and
the Tradition of International Claims Settlement,"
27 N.Y.U.J. of Intl Law & Politics 1 (1994);
and Veijo Heiskanen and Robert O'Brien, "UN Compensation
Commission Panel Sets Precedents on Government Claims,"
92 Amer. J. Intl Law 339 (1998).
(Just Satisfaction), Case of Zubani v. Italy (Art.
41), Applic. No. 14025/88, 16 June 1999.
and others v. United Kingdom (Series A, No. 102),
(1986) 8 EHRR 329. Protocol to the Convention for
the Protection of Human Rights and Fundamental Freedoms,
adopted in Paris, 20 March 1952, as amended by Protocol
No. 11 (ETS No. 155). Article 1 reads: "Every
natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shal l be deprived
of his possessions except in the public interest and
subject to the conditions provided for by law and
by the general principles of international law. The
proceeding provisions shall not, however, in any way
impair the right of a State to enforce such laws as
it deems necessary to control the use of property
in accordance with the general interest or to secure
the payment of taxes or other contributions or penalties."
e.g. Velasquez Rodriguez Case, Compensatory Damages
(Art. 63(1)), Judgment of July 21, 1989, Inter-Am.
Ct.H.R. (Ser. C) No. 7 (1990).
e.g. Ware v. Hylton, 3 U.S. (3 Dall.) 199,
279 (1796); Garcia v. United States (Decision
of the General Claims Commission, United States and
Mexico), No. 292, 3 Dec. 1926, reprinted in 21 Amer.
J. Intl Law 581 (1927); Treaty of Versailles,
June 28, 1919, 1 Bevans 43; and Benjamin Ferencz,
"Compensating Victims of the Crimes of War,"
12 Va. J. Intl Law 343 (1972).
of Procedure and Evidence of the International Tribunal
for the Former Yugoslavia, as amended, IT/32/, Rules
105 and 106.
Nicholas Balabkins, West German Reparations to
Israel (Rutgers University Press, 1971); Nana
Sagi, German Reparations (St. Martins Press,
1980); Agreement Between the Federal Republic of Germany
and Israel, 162 U.N.T.S. 205, 10 Sept. 1952.
e.g. William R. Youngblood, "Poland's Struggle
for a Restitution Policy in the 1990's," Emory
Intl Law Rev. (Fall 1995).
e.g. Peter Wetterstein, ed., Harm to the Environment:
The Right to Compensation and the Assessment of Damages
(Clarendon Press, 1997).
17 and 18 of the Native Title Act. See Daniel C.H.
Mah, "The National Native Title Tribunal: Compensation
Issues - A Discussion Paper" (April 1995), available
. Mah writes: "[C]an indigenous people claim
compensation for the loss of their spiritual connection
with their land? Established principles of valuation
under compulsory acquisition statutes allow compensation
to be paid for the 'special value' of the land to
the owner of ordinary land title. However, this special
value is usually limited to value arising from some
special feature, or the location, of the land rather
than sentimental value....[I]t is at least arguable
that failure to compensate for the loss of connection
with land would be to fail to justly compensate for
the extinguishment or suspension of native title."
Id., citing D. Brown, Land Acquisition (3rd
ed., Butterworths, 1991), p. 97; Onus v. Alcoa
of Australia Ltd. (1982) 149 CLR 27; and Hansard,
House of Representives, 16 November 1993, p. 2882.