Compensation as Part of a Comprehensive Solution to the
Palestinian Refugee Problem

WORKSHOP PAPERS

The Right to Compensation:
The Right to Compensation Basic Principles Under International Law:


A BACKGROUND PAPER
Prepared By

Donna E. Arzt
SYRACUSE UNIVERSITY
COLLEGE OF LAW
dearzt@law.syr.edu

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. (emphasis added)

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 question.

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 obligation."⁶

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 South America.)⁹

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 admit fault.
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 of Compensation

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 profits.¹³

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 settlement.

Representative Non-Commercial Case Law

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 Courts

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" Nazi allies.

Post-Communist Transitions

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 Claims

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 spoilation.²⁴
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

Conclusion

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 had.

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 law).

Irreparable injury - an injury that is so extensive or continuous that no pecuniary standard exists which is adequate for its redress.

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).

Footnotes

¹ International 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).

² Luke 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.

³ On 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).

⁴ Articles 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 time.

⁵ See 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.)

⁶ Restatement sec. 902, Official Comment f.

⁷ See 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., 1998).

⁸ Lee, "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.

⁹ The 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.

¹⁰ See 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.

¹¹ Articles 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).

¹² Restatement 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.

¹³ Chorzow Factory Case (Germany v. Poland), 1928 PCIJ (Ser. A) No. 17 (Judgment of Sept. 13, 1928).

¹⁴ See 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 (1991).

¹⁵ Articles 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.

¹⁶ See 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).

¹⁷ Judgment (Just Satisfaction), Case of Zubani v. Italy (Art. 41), Applic. No. 14025/88, 16 June 1999.

¹⁸ Lithgow 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."

¹⁹ See 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).

²⁰ See 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).

²¹ Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia, as amended, IT/32/, Rules 105 and 106.

²² See 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.

²³ See, e.g. William R. Youngblood, "Poland's Struggle for a Restitution Policy in the 1990's," Emory Intl Law Rev. (Fall 1995), available at: <http://www.law.emory.edu/students/eilr/volumes/fall95/youngblo.html>.

²⁴ See e.g. Peter Wetterstein, ed., Harm to the Environment: The Right to Compensation and the Assessment of Damages (Clarendon Press, 1997).

²⁵ Sections 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 at:   http://www.murdoch.edu.au/elaw/issues/v2n1/mah21.html . 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.

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