In my previous post on Argentina’s procedural victory over Ghana in the ARA Libertad case, I talked about how Argentina used the UNCLOS’ dispute resolution procedures to get an expedited provisional measures order from the International Tribunal of the Law of The Sea — and how, in effect, that provisional decision operated as an adjudication of the merits. Argentina’s victory was, in part, attributable to its success in convincing the Tribunal that awarding Ghana to release the ARA Libertad would not be a resolution of the case in full. In reality, however, the Tribunal’s provisional order made the underlying dispute moot, and that a decision on the merits would never be reached.
Judge Paik, in his Separate Opinion, reasoned that ordering the release of the ARA Libertad was not the same as awarding Argentina the principal relief it was seeking, because “the various forms of relief sought by Argentina in its Application instituting the Annex VII arbitration are obviously broader than those sought in the request for provisional measures.” But, as I pointed out in my last post, through the Tribunal’s provisional measures order,
Argentina did receive, in substance, all of the relief that it actually sought — because the “obviously broader” “various forms of relief” that Judge Paik makes reference to were largely superfluous demands that the arbitral tribunal would not have even had jurisdiction to grant. In fact, I suspect that Argentina was fully aware that no tribunal would ever grant the superfluous forms of relief it demanded in its original Statement of Claim — but that it deliberately through a few bogus demands into its claims anyway, so that, when it made a request for provisional relief, Argentina could argue that the “provisional” measures it was seeking were not identical to the relief it sought in its Application.
In particular, two of the remedies Argentina sought were bogus claims for relief; these requests were guaranteed to be left unawarded and unaddressed by ITLOS in its provisional ruling, guaranteeing that there would be, at least in theory, a question ‘on the merits’ to be decided by the Annex VII arbitral tribunal. As stated in Argentina’s Statement of Claim, here are the four forms of relief that Argentina was seeking to be awarded:
Thus, Argentina requests the arbitral tribunal to assert the international responsibility of Ghana, whereby such State must:
(1) immediately cease the violation of its international obligations as described in the preceding paragraph;
(2) pay to the Argentine Republic adequate compensation for all material losses caused;
(3) offer a solemn salute to the Argentine flag as satisfaction for the moral damage caused by the unlawful detention of the flagship of the Argentine Navy, ARA Fragata Libertad, preventing it from accomplishing its planned activities and ordering it to hand over the documentation and the flag locker to the Port Authority of Tema, Republic of Ghana;
(4) impose disciplinary sanctions on the officials of the Republic of Ghana directly responsible for the decisions by which such State has engaged in the violations of its aforesaid international obligations.
The first request, for the release of the ship, is restitutionary relief, which is the most fundamental form of reparation under international law. As stated in Art. 35 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, “[a] State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed.”
Restitution, through the release of ARA Libertad, was the fundamental aim of Argentina’s institution of arbitration against Ghana. It is also precisely what Argentina was awarded by the International Tribunal of the Law of the Sea in provisional measures order.
Request number two is a straight-forward request for monetary compensation, in accordance with Art. 36 of the Draft Articles. Where restitution is insufficient relief to not repair a state’s breach in full, an award of monetary compensation — equivalent to a civil damages award — may be appropriate, to “cover any financially assessable damage.” In the Tribunal’s provisional award, Argentina did not receive compensation from Ghana — and to that extent, the Tribunal is correct that Argentina did not receive the full relief it sought. But Argentina’s financial damages were relatively limited, largely consisting of the costs of flying home a few hundred Argentinian cadets. The financial cost was not the state’s primary concern, and would not, in itself, have motivated an international arbitration.
In contrast to Argentina’s first two requests, the third and fourth requests made in its Statement of Claim 3 and 4 are demands for satisfaction, as described in Art. 37 of the Draft Articles:
Article 37. Satisfaction
1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.
There is reason to think that the inclusion of these requests in Argentina’s Statement of Claim was calculated; satisfaction in general is not a favored form of relief, and the satisfaction Argentina sought was phrased in a more insulting manner than was necessary. This may be because Argentina included these requests not because they actually wanted to receive what they were asking for, but because they wanted to convince the Tribunal — and as in fact it did convince Judge Paik — that there was daylight between Argentina’s demands for provisional relief and Argentina’s demands on the merits.
Argentina’s demands for satisfaction were not legitimate requests for relief, and they are not within the jurisdiction of any Annex VII arbitral tribunal to award. Although both the request that Ghana be forced to offer a “solemn salute” to Argentina’s flag and the request that the arbitral tribunal “impose disciplinary sanctions” against individual Ghanaian officials are illegitimate requests for satisfaction, in this post, I’ll only focus on why an Annex VII arbitral tribunal could not have rightfully awarded the relief sought.
The Role of the Solemn Salute Under International Law
Argentina requested, in its Statement of Claim, that an ad hoc arbitral tribunal order Ghana, a sovereign state, to “offer a solemn salute to the Argentine flag as satisfaction for the moral damage caused by the unlawful detention of the flagship of the Argentine Navy.” Although this request seems somewhat bizarre in the modern context, the act of a sovereign offering a salute to another sovereign’s flag has a long pedigree under the law of nations. The salute’s role in diplomacy in flexible, and, depending on context, a salute can serve as tribute, as ultimata, or as apology.
In the 16th and 17th centuries, the salute to another sovereign’s flag was a regular component of both international relations and naval warfare. Strong naval powers — i.e., England — would disclaim the traiditon of mare librum, and demand that any foreign ships wishing to pass through its sea territories offer a salute to any of its ships that the foreign vessels encountered. The practical function of this exercise was to force weaker states to acknowledge their subservience to the stronger state, and to provide a way for the stronger state to continually reassert its naval supremacy. It also frequently provided states with an excuse for war.
As a salute costs nothing to give, many states would simply concede to the demand for tribute, no matter how distasteful, and would comply with the mandatory saluting requirements in exchange for being given freedom of navigation. If, however, a sovereign was unwilling to debase itself, and offer up a salute upon demand, there could be serious repercussions:
[I]n 1652 England and Holland went to war after the English government understood that the Dutch had refused to salute the British flag. When peace was made in 1654 the Dutch were compelled to undertake to salute the British flag in “British seas,” an undertaking the renewal of which was insisted on in 1667 at the end of a second Anglo-Dutch war. The third Dutch war of 1672-1674 was precipitated all but deliberately by another incident which arose over a salute. A small British yacht, the Merlin, sailing by the Dutch Admiral’s squadron, fired into the fleet because she had not been saluted. The Dutch sailors took up the attitude that, although the British right to a salute might be admissible, a petty British vessel could hardly demand it of a whole Dutch squadron. Downing, who was British minister at The Hague, envenomed the dispute by a demand for reparation. Nevertheless, at the peace of 1674 the Dutch undertook to recognise as British all those seas between Cape Finisterreand Staten, and to order even whole squadrons to salute, “content,” as Bynkershock said, “with the use and fruit of the sea and making no difficulty of ceding to another’s ambition that which was not useful to themselves.”
By the 19th century, however, mandatory saluting was no longer an acceptable practice under international law. Exchanges of salutes still took place, as a matter of maritime ceremonial tradition, but demanding that another sovereign offer up a salute as tribute was considered to be inconsistent with the post-Enlightenment conception of sovereignty and the equality of states:
A sovereign can never legitimately impose on foreign vessels entering his territorial waters, a form of salute which, from a general standpoint, may be regarded as humiliating. Such would be the case of a salute rendered by lowering the flag or of any other form of salute which might imply an act of subjection. Such also would be a salute by salvos of artillery, when there is no obligation to return them.
Although saluting, in its ritualized form, remained a part of the law of nations, its practical significance was greatly diminished:
The flag of a state is the emblem of its sovereignty, independence, and equality; of all those attributes, in fact, which constitute the state. As a consequence, any positive indignity offered to the national flag is a positive insult to the nation itself, demanding an instant and full apology; and if the apology be delayed or refused, furnishing ample grounds for reprisals or open war. As the flag is the emblem of nationality, the practice is universal, and has grown to be a part of the positive law, to offer some marks of respect to the flag of nations with which exists a state of amity. Under some circumstances these marks of respect are due of right, and their omission would be an indignity. Under: other circumstances they are rather matters of courtesy. These marks of respect are called salutes.
Today, as a matter of international law, and as enshrined in Article 2(1) of the UN Charter, all states are considered to be equal sovereigns, without regard to their actual comparative strength or power. The practice of strong states demanding salutes as tributes from weaker states fell out of practice sometime during the 18th century, and would have been considered a violation of international law from the mid-19th century onwards.
Although states could no longer impose a standing requirement for other states to salute their flag, the practice of demanding salutes, as ultimata, persisted as a semi-regular practice in international relations through the early 20th century. If one state embarrasses or harms another nation through a breach of international law, the injured state can attempt to preserve its dignity, while avoiding the appearance of weakness, by presenting its transgressor with an ultimatum: either agree to voluntarily humiliate yourself by saluting our flag, or we will declare war on you.
In theory, the practice of demanding a salute as an ultimatum could be beneficial for maintaining peaceful relations between countries. When a breach of international law occurred, it could provide the injured state with a way to refrain from an immediate declaration of war while still maintaining face — but, just as often, the practice could instead provide a sovereign who had already decided on war with a pretext for doing so.
Such was the case with the United States’ invasion of Veracruz, Mexico in 1914, during the Mexican Revolution. The United States’ naval fleet was in the region in order to protect the interests of American nationals in the area. The U.S. had other interests there as well, however; the U.S. did not recognize General Victoriano Huerta as the head of the Mexican state, and was supporting the Constitutionalists in their efforts to depose him.
Then, on April 9, 1914, eight U.S. sailors were mistakenly arrested by some overeager Mexican soldiers. Although General Huerta was prompt in releasing the sailors and issuing an apology for the incident, Admiral Mayo, the admiral in charge of operations in the region issued, was not satisfied, and issued Huerta with the following demand:
This morning an officer and squad of men of the Mexican military forces arrested and marched through the streets of Tampico a commissioned officer of the United States navy, the paymaster of the Dolphin, together with seven men comprising the crew of the whaleboat the Dolphin. At the time of this arrest the officer and men concerned were unarmed and engaged in loading cases of gasoline which had been purchased on shore. Part of the men were on the shore, but all, including the man or men in the boat, were forced to accompany armed Mexican forces.
I do not need to tell you that taking men from a boat flying the United States flag is a hostile act, not to be excused. I have already received your verbal message of regret that this even has happened and your statement that it was committed by an ignorant officer. The responsibility for hostile acts cannot be avoided by the plea of ignorance.
In view of the publicity of this occurrence, I must require that you send by suitable members of your staff formal disavowal and apology for the act, together with your assurance that the officer responsible for it will receive severe punishment. Also that you publicly hoist the United States flag in a prominent position on shore and salute it with twenty-one guns. The salute will be returned by this ship. You answer to this communication should reach me and the called for salute be fired within twenty-four hours from 6 p.m. of this date.
Mexico refused to offer the salute, as specified by Admiral Mayo, and Mexico and the United States proceeded to spend the better part of two weeks on negotiations over the specific form in which the salute would be carried out. At one point, — Mexico agreed that it would perform the salute, but only on the condition that America sign a written contract agreeing that it would then return the salute to Mexico. The U.S. declined, finding the suggestion that it could not be relied upon uphold its end of the bargain to be insulting. Huerta then requested that the two countries instead perform simultaneous salutes of one another’s flags, an offer which the U.S. also declined to accept:
General Victoriana Huerta, provisional president of Mexico, flatly refused to accede to the unconditional demands of the United States that he salute the American flag, and congress is asked by President Wilson for authority to used armed force to uphold the honor and, dignity of the nation. Negotiations with Huerta over the demand for a salute in reparation for the arrest of American bluejackets at Tampico on April 10 came to a close Sunday night at Six o’clock, the last hour given by President Wilson for a favorable response from the Mexican dictator. The final word of Huerta to Charge O’Shaughnessy was a refusal to comply unless the United States would guarantee in writing that his salute be returned. In the meantime American war fleets have been moving down both coasts on their way to Mexican waters to carry out the president’s plan for reprisals.
Huerta continued to refuse to comply with Admiral Mayo’s ultimatum. In order to defend America’s honor — while, coincidentally, also advancing the U.S.’s political interests in supporting the Constitutionalists — President Woodrow Wilson had no choice but to initiate an invasion of Veracruz, which was, also coincidentally, a strategic stronghold and supply port for Huerta. A few days after initiating this invasion, President Wilson requested permission from Congress to undertake an armed assault on the region which, by that point, was already ongoing.
Two months later, in July of 1914, Huerta was forced to resign from office, and a few months after that, the U.S. withdrew from its occupation of Veracruz. The U.S. forces left Mexico without ever receiving the salute that initially prompted the invasion.
The Corfu incident, in 1923, is another notorious examples of the salute’s use as a pretextual ultimatum. It is, incidentally, also a notorious example of the ineffectiveness of the League of Nations’, as demonstrated by the League’s complete inability to restrain the ambitions of its more expansionist members.
The Corfu incident began with the murder of the Italian general Enrico Tellini. At the time of his death, General Tellini had been in Ioannia, Greece, as part of an Italian mission sent by the League of Nations to try and settle a Greek-Albanian boundary dispute. Although General Tellini was probably killed by Greek bandits, and there was no effort of wrongdoing by any Greek officials, Italy used the event as an opportunity to demand satisfaction from Greece — in “reparation” for Greece’s failure to adequately protect Italy’s diplomatic officials. The diplomatic note Italy issued was deliberately designed to humiliate Greece, itemizing a detailed list of various diplomatic indignities that Greece would be required to perform, if it wished to avoid war with Italy. Amid demands for monetary payment and multiple forms of apologies, there was also a demand that there be “[h]onors to the Italian flag on the part of the Greek fleet,” with very specific instructions for how this salute was to be carried out.
In an effort to avoid the threatened invasion, Greece was willing to concede to a considerable portion of Italy’s demands. Greece refused to comply with all of Italy’s enumerated demands, however, declaring that doing so would “outrage the honor and violate the sovereignty of the state.” Although the concessions that Greece was willing to stipulate to included an offer to give a modified salute to the Italian colors, Greece would not provide the full salute that Italy demanded. Having received the pretext he needed as a result of the refusal, Mussolini proceeded to invade and occupy the island of Corfu.
The League of Nations then became involved with the dispute, originally with the goal of sanctioning Italy for its invasion and occupation of Corfu. But, finding itself lacking the political clout to actually enforce any order for Italy to desist with its occupation, the League of Nations quickly realized it would be better to side with Mussolini in the dispute, rather than to side with Greece and give an order that it knew Italy would openly defy. As a result, Italy’s invasion of Corfu — although widely acknowledged to be pretextual — was condoned by the League of Nations. In addition to forcing Greece to pay Italy an indemnity, the Commission appointed by the Conference of Ambassadors also complied with Italy’s more exorbitant demands, and ordered Greece to have the Grecian naval fleet salute not just an Italian warship, but a French and a British warship as well:
Vessels belonging to the fleets of the three Allied Powers, the Italian naval division leading, will arrive in the roadstead of Phaleron after eight o’clock in the morning of the funeral services;
After the vessels of the three Powers have anchored in the roadstead of Phaleron the Greek fleet will salute the Italian, British and French flags, with a salute of twenty-one guns for each flag;
The Salute will be returned gun by gun by the Allied vessels immediately after the funeral services, during which the flags of the Greek fleet and of the three Allied Powers will be flown at half-mast;
A few months later, a very similar scenario once again repeated itself in southern Europe, this time between Serbia and Bulgaria. As a result of “a servant girl’s love affairs,” two Bulgarians and a Serbian had a brawl — and, somehow, during the course of this brawl, a serbian colonel got smacked in the head with an antique pistol from the 1870s.
Naturally, Serbia then declared it would invade Bulgaria if Bulgaria did not make proper satisfaction within 48 hours. The specific “satisfaction” Serbia required consisted of five demands from Bulgaria, including a demand that 250 Bulgarian soldiers salute the Serbian flag.
The demands were deliberately intended to be “humiliating” and “galling to the national pride.” Although Bulgaria denied responsibility for the attack on the colonel, and called it a ‘trifling incident’, Bulgaria complied with the demands, finding it necessary to bow to superior force. In doing so, war between the nations was averted, at least for the time being.
Of course, forced-apologies being about as genuine as you might imagine, nations have not always found the satisfaction they have requested to be particularly, well, satisfying. Such was the result of a demand made by France against Germany in 1920, after an incident occurred in which a mild breach of security at the French embassy in Berlin resulted in “dishonor to the French flag.” France promptly demanded satisfaction from Germany in the form of a military salute to the restored French flag, as reparations for Germany’s failure to provide proper diplomatic protection to France’s embassy.
Germany initially agreed, and its government tried to arrange for the ceremony to be carried out in secrecy. Alas, it was not to be. The German company sent to give honors to the French flag appeared in formation before the French embassy, ready to perform the honors — but when the French flag was raised, the German soldiers turned and marched out, without saluting, and while singing “Deutschland Uber Alles.”
Other examples of salutes being demanded on threat of war include Germany’s demand for Haiti to provide indemnification and a salute as reparations for the arrest of a German national in 1897, Spain’s demand that Chile “humble herself to salute the Spanish flag in token of submission,” and the French demand for a salute from Peru in 1860.
It an addition to being demanded as an ultimatum, salutes can also be offered up voluntarily, by one state to another, in an attempt to make amends for an acknowledged transgression. It is similar to a diplomatic apology, though more formal in tone. In practice, salutes have been considered to be a particularly appropriate form of apology where the state’s breach of international law was accomplished through the acts of its military organs. Because salutes, when offered up voluntarily, have often succeeded in quickly and quietly resolving minor disputes between countries — and because states willing to quickly offer up a salute as an apology are, for obvious reasons, disinclined to draw further attention to the occcurence — diplomatic saluting has received less attention, and was likely more prevalent than available records suggest. Historical examples of the practice include the following:
- The Virginius Affair, in which the U.S. demanded Spain salute the American flag as a consequence of Spain’s unlawful capture of the a ship on the high seas. Spain and the U.S. entered into an agreement whereby Spain agreed that, if the seizure had been an offense to the U.S., it would agree to offer a salute. It turned out, however, that although the ship flew U.S. colors, it was actually owned by Cubans, and, consequently, the U.S. retracted its demand for a salute
- Guatemala’s salute to Great Britain (1874) following the Magee Incident:
As a proof of the desire that the Government of Guatemala entertains to preserve the best relations with that of Her Britannic Majesty, and in proof of the profound feeling of sorrow with which it has witnessed the outrage inflicted on Vice-Consul Magee, the Government will give orders to salute the British flag in the port of San Jose with 21 guns, the day that may be agreed upon with Her Majesty’s Charge d’Affaires.
- The United States’ practice in this regard, which shows that it has itself been willing to offer up salutes, as well as demand them, when the need arose to make amends to other nations for the U.S.’s unintentional or inadvertent transgressions:
The seizure of the Confederate cruiser Florida, by the Federal cruiser Wachusett, in the port of Bahia, Brazil, in October, 1864, was conceded by the United States Government to be an invasion of Brazilian territorial waters. The act was disavowed by the United States? and in a note of December 26, 1864, to Mr. Barbosa da Silva, Brazilian minister at Washington, Mr. Seward announced the proposed trial by court-martial of the captain of the Wachusett, the dismissal of the United States consul at Bahia, who advised the attack, the release of the parties on the Florida, and a salute to the Brazilian flag. Mr. Seward proceeded to mention that the Florida, while at anchor in Hampton Roads, had, by an unavoidable casualty, foundered. To fulfill the engagement of saluting the Brazilian flag, the United States Government, in 1866, sent to Bahia a United States vessel of war for the announced purpose of delivering a solemn salute to the Brazilian Mag on the spot where Brazilian neutrality had been invaded.
Jurisdiction of International Tribunals to Award Symbolic Reparations
A salute, when provided to remedy a perceived transgression of international law, is a form of satisfaction, akin to an apology or an expression of regret. Although satisfaction is one of the three recognized forms of reparation under international law, it is, as provided by the Draft Articles, the least favored of the three. Satisfaction is only appropriate relief where neither restitution nor compensation are sufficient to repair the injury caused by a breach of international law.
Although it is well established that an international tribunal can order one state to make restitution or provide compensation as a result of a breach, is satisfaction also an available remedy that can be awarded?
The answer has often been assumed to be ‘yes.’ As noted in the Rainbow Warrior arbitration,
There is a long established practice of States and international Courts and Tribunals of using satisfaction as a remedy or form of reparation (in the wide sense) for the breach of an international obligation. This practice relates particularly to the case of moral or legal damage done directly to the State, especially as opposed to the case of damage to persons involving international responsibilities.
But Rainbow Warrior may have overstated the case — the decision of the arbitrator in that case to order France to make apologies to New Zealand was an exception to, rather than a demonstration of, the general rule, and there are only a limited number of examples in which international courts have ordered one sovereign to give satisfaction to another. And to some extent, Rainbow Warrior does not itself stand for the proposition that international tribunals are in the business of ordering one sovereign to make apologies to another, as in that particular case, France had made its willingness to offer up such an apology known to the arbitrator:
New Zealand seeks an apology. France is prepared to give one. My ruling is that the Prime Minister of France should convey to the Prime Minister of New Zealand a formal and unqualified apology for the attack, contrary to international law, on the Rainbow Warrior by French service agents which took place on 10 July 1985.
France did comply with award, at least to the extent that it tendered both the ordered compensation and apology to New Zealand. (France did not comply quite so well with the provisions of the order regarding the disposition of France’s agents). The “formal apology” was conveyed on July 22, 1986, simultaneously with the exchange of the prisoners. I have been unable to locate a copy of the actual text used in that apology, however, so there is no way to confirm if the apology was in fact as unqualified as it was formal. (Then again, if the apology has never been made public, it would appear that the apology couldn’t have been that sincere. My guess is that the apology consisted of nothing more than parroting back the words of the Secretary-General’s ruling.)
I am aware of only two other examples of court-ordered apologies being made, both of which are found in arbitration awards. In The S.S. “I’m Alone” Case (Arbitration of Canada v US, 1935), the arbitrator ordered the U.S. to apologize to Canada:
The act of sinking the ship, however, by officers of the United States Coast Guard, was, as we have already indicated, an unlawful act; and the Commissioners consider that the United States ought formally to acknowledge its illegality, and to apologize to His Majesty’s Canadian Government therefor; and, further, that as a material amend in respect of the wrong the United States should pay the sum of $25,000 to His Majesty’s Canadian Government; and they recommend accordingly.
However, although the U.S. did make payment to Canada of the monetary award, it appears that the “apology” was actually more of an apologia, “occup[ying] three paragraphs describing the unlawful occupation of the rum runner and one paragraph in apology.” I haven’t been able to locate an a copy of the actual text of the January 19, 1935 note, either, but it appears that, in spite of the arbitrator’s ruling, Canada never did get its expression of remorse.
The Kellett case of 1899 also involved an arbitrator-ordered apology:
That His Siamese Majesty’s Government shall express its official regrets to the United States Government, through the latter’s representative in Bangkok, that soldiers of His Siamese Majesty’s army committed an assault upon the person of a consular official of the United States, and shall duly instruct the chief commissioner of the Monthon Laochieng, Phya Song Surady, to take such steps as will prevent a repetition of such an incident.
It would appear that the apology in this case was in fact provided by the Siamese government, in accordance with the ruling, and there is no indication that the apology was not a formal and plausibly sincere-seeming expression of regret. Incidentally, the Kellett case also involved the possibility of remedy-by-salute, as in the early stages of the dispute with Siam, the U.S. also pondered demanding a salute.
I have also seen the Arends case of the Netherlands-Venezuelan Mixed Claims Commission cited as another example of an arbitrator-mandated apology. I am not sure that description is warranted, however; the case suggests instead that Venezuela had already indicated a willingness to make an apology, and it was the sovereign’s consent to the remedy that made an apology an appropriate award. In the Maal case, immediately subsequent to Arends, that same umpire found that because the government party involved there was not willing to make expression of regrets, the proper compensation to be awarded was instead a higher monetary damages award, rather than a forced apology.
In any event, the modern trend is for international tribunals to consider a tribunal’s own judgment, in and of itself, to constitute appropriate satisfaction to compensate for any moral injury that requires a nonmaterial remedy to be repaired. This preference was in fact exprssed in the ICJ’s very first decision, the Corfu Channel case, in which the Court announced that it
[g]ives judgment that by reason of the acts of the British Navy in Albanian waters in the course of the Operation of November 12th and 13th, 1946, the United Kingdom violated the sovereignty of the People’s Republic of Albania, and that this declaration by the Court constitutes in itself appropriate satisfaction.
Judge Azavedo, in his Dissenting Opinion in Corfu Channel, took the ICJ’s first case as an opportunity to argue that the Court, as a policy matter, should refrain from making awards of moral satisfaction, and that the Court’s pronouncements alone should be the only form of satisfaction for moral injuries that court should provide. In doing so, Judge Azavedo considered Albania’s request for an award of nominal damages — specifically, that the UK be ordered to provide Albania with compensation in the form of a single franc — but found that such a monetary award was not within the Court’s jurisdiction to give in that particular case. Even where the Court did have jurisdiction to provide a remedy, however, Azavedo believed that the Court should nonetheless refrain from indulging in such symbolic awards:
[U]nder the Special Agreement a pecuniary sanction has not been asked for and cannot be granted, even symbolically. On the other hand, the Court should break away from the familiar mediaeval procedure, which is not employed nowadays even in schools, such as apologies, flag saluting, etc. All this is reminiscent of ultimata, which are becoming more and more obsolete.
There remains only one moral sanction that can be applied without disregarding the absence of a claim for the assessment of damages. The matter cannot be left to the future; for the sanction must re ipsa be found in the Judgment. This will be purely declaratory, and will state that the United Kingdom’s conduct was contrary to international law and in every way abnormal.
Within these limits, I give satisfaction to Albania and hold that the counter-claim put forward by her in the Special Agreement of March 25th, 1948, is well founded.
Judge Azavedo’s warning against ultimata seems to have been given heed. I am not aware of any case in which the ICJ has, to date, issued an order demanding that one state issue apologies, or salutes, to another. The closest it has gotten to doing so was in the Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France). There, the Court, in the findings of its judgment, did state that it was the Court’s belief that Djibouti warranted an apology from France:
It is regrettable that these procedures were not complied with by the investigating judge and that, whilst being aware of that fact, the French Ministry of Foreign Affairs did not offer apologies to the Djiboutian President, as it had done previously to Djibouti’s Ambassador when he found himself in a similar situation.
The Court has taken note of all the formal defects under French law surrounding the summons addressed to the Djiboutian Head of State on 17 May 2005 by Judge Clément; however, it considers that these do not in themselves constitute a violation by France of its international obligations regarding the immunity from criminal jurisdiction and the inviolability of foreign Heads of State. Nevertheless, as the Court has indicated above, an apology would have been due from France.
Importantly, however, even though the Court found that an apology “would have been due”, any mention of an apology was absent from the Operative Clause of the Court’s Order. So while the Court found that, under international law, France should have voluntarily offered an apology to Djibouti, the Court did not order that an apology be made. This distinction between the Court’s findings and the Court’s remedy was apparently done against the wishes of two justices, who commented in their separate opinions on the Court’s failure to make an apology part of the actual award. Judge Koroma, in his separate opinion, wrote that:
the Court should have considered whether the Head of State’s inviolability was infringed in relation to the respect he was entitled to as a Head of State; and, if the Court came to the conclusion that it was infringed, whatever form the infringement had taken — formal defects or otherwise — then the apology, as a remedy, which the Court considered due from France for the breach should have been reflected in the operative paragraph as a finding of the Court.
The findings of the Court are tantamount to determinations made by the Court and are usually expressed in the operative paragraph of the Judgment, indicating the decision of the Court, which is of significance for a party in that it shows that: the Court has reached a decision; that decision constitutes res judicata; and the party in whose favour it is made is entitled to its enforcement or implementation. It is thus especially important that the Court’s finding of a violation of the obligation should have been reflected in the operative paragraph, as this has a legal significance of its own in the structure of the Judgment.
Judge Yusuf likewise agreed:
The Court treats attacks on the immunity and inviolability of the Head of State of Djibouti as acts in the past, submitted to the Court solely for historical reasons. The witness summonses addressed to the Djiboutian Head of State in 2005 and 2007 have never been withdrawn by the French judicial authorities. Therefore, instead of saying in the reasons for the judgment that “an apology [was] due”, the Court should have included the requirement for apologies in the operative part of the judgment itself and should have asked France to withdraw both summonses….
I consider that France has infringed customary rules relating to the immunity, inviolability, honour and dignity of the Djiboutian Head of State and that the Court should have required France to offer public apologies, both in its reasons and in the operative part of the Judgment.
From the dissenting opinions, it is suggested that the Court’s decision to discuss apologies in the reasons of its Judgment, but not to include the issue of apologies in its operative clause, was a considered and deliberate choice. The Court’s practice with regard to other cases tends to confirm this, as apologies are a frequent demand made by states in their Applications submitting matters to the Court’s jurisdiction, but the Court has declined in every instance to award that form of relief. As in the Case Concerning Certain Questions, the Court has instead found that a state’s failure to apologize can itself be a violation of international law, but the Court has also found that the appropriate remedy for such a breach is not to order that an apology occur, but rather to provide the injured state with satisfaction in the form of a judicial finding noting the breach.
This is not to say that the Court has refused to order reparations for moral injuries. Take, for example, the Ahmadou Sadio Diallo case (Guinea v. DRC). Guinea, in its Application for Proceedings against the Democratic Republic of Congo, demanded the Court follow the lead of the Rainbow Warrior arbitration:
Whereas there is a constant line of international jurisprudence, running from the Alabama case of 14 September 1872, through the Russian indemnity case of 11 December 1912 to the case of British property in Spanish Morocco of 1 May 1925, which states that: “a breach of State responsibility entails a consequent obligation to make appropriate reparation”;
Whereas, therefore, the injury must be made good in the first place by an official public apology on the part of the Congolese Government to the Guinean Government for having inflicted degrading treatment upon a worthy and upstanding national of Guinea;
Whereas, in so doing, the Democratic Republic of the Congo will have given appropriate satisfaction to Guinea, just as France did when it made a public apology to New Zealand in the Rainbow Warrior case following the arbitration of 30 April 1990*;[.]
[*Guinea's application appears to be a misstatement. France's apology was not public, and its apology followed the arbitrations of 1986, not the subsequent 1990 arbitration.]
In the Diallo case, the ICJ declined to order that the DRC provide an apology to Guinea. Notably, however, the Court did find it appropriate to make an award of pecuniary damages in Guinea’s favor as compensation not merely for the monetary damages that Guinea had incurred, but specifically as compensation for the immaterial, or moral, damages that Guinea had suffered. The Diallo case is also notable in that it is in fact only the second time in the ICJ’s history in which it has rendered a judgment ordering one state to pay a specific amount of monetary compensation to another, but it is the only time I am aware of in which the Court specifically made a monetary award as compensation for a moral injury. (The request for such a remedy, however, has been made in several prior cases, including by Nicaragua, who wrote a lengthy memorial on the subject, in its case against the United Sates.)
Additionally, although Guinea’s request that the ICJ follow Rainbow Warrior and order that the DRC give satisfaction in the form of an apology, the ICJ’s decision in Diallo plainly followed the Rainbow Warrior with respect to another question regarding remedies — that is, the availability of pecuniary damages as reparations for a moral injury. In the 1990 arbitration, France initially opposed New Zealand’s request that a remedy other than satisfaction be made available for nonmaterial injuries, contending that “compensation ‘could concern only the material damage suffered by New Zealand, the moral damage being compensated by the offer of apologies’,” and that material compensation was not available as reparations for immaterial damages. The 1990 tribunal disagreed, finding that “the Secretary-General did not make any distinction, ruling instead that the French Government ‘should pay the sum of US dollars 7 million to the Government of New Zealand as compensation for all the damage it has suffered,'” and the tribunal endorsed the availability of monetary compensation to remedy purely moral injuries.
Other examples abound in which the Court has rejected an applicant’s demand that it be awarded an apology by a breaching state, and has found instead that the Court’s own orders suffice to provide any moral satisfaction that may be due:
- In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), the Court denied the Bosnia’s request that Serbia be ordered to pay symbolic compensation, and that Serbia be ordered to “provide speciﬁc guarantees and assurances that it will not repeat the wrongful acts complained of,” finding that “[t]he Court does not “ﬁnd it appropriate to give effect to the Applicant’s request for an order for symbolic compensation… The Court will however include in the operative clause of the present Judgment, by way of satisfaction, a declaration that the Respondent has failed to comply with the Court’s Orders indicating provisional measures.”
- In Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), the Court held that it “considers that the findings so reached by it constitute a form of satisfaction which will make good the moral injury complained of by the Congo.”
- In Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), the Court held that “In the circumstances of the case, the Court considers moreover that, by the very fact of the present Judgment and of the evacuation of the Cameroonian territory occupied by Nigeria, the injury suffered by Cameroon by reason of the occupation of its territory will in al1 events have been sufficiently addressed.”
Similarly, arbitration panels outside of Rainbow Warrior have also often followed the ICJ’s lead in this regard. For instance, the Eritrea-Ethiopia Claims Commission rejected a request from Eritrea that Ethiopia be ordered to apologize for the damage caused by its unlawful actions. The Commission noted that, in theory, under the Commission’s rules, such an award would be possible, but nevertheless refused to order an award of non-monetary compensation absent a show of good cause:
Ethiopia is liable for the unlawful damage inflicted upon the Stela of Matara in May 2000. Eritrea’s request that Ethiopia also be obligated to apologize for that damage is dismissed. As the Commission stated in its Decision No. 3, in principle, the appropriate remedy for valid claims should be monetary compensation, except where other remedies can be shown to be in accordance with international practice and the Commission determines that another remedy would be reasonable and appropriate. No such showing was made here.
There is one notable exception to this rule — the Inter-American Court of Human Rights, which frequently orders breaching states to offer apologies, make formal acknowledgements, declare days of remembrances, and even build memorials, in order to provide satisfaction for the moral injuries they have caused. While relevant, the Inter-American Court of Human Rights differs from tribunals such as the ICJ and the ITLOS in one very important respect: in proceedings before the IACHR, the injured party is typically a private citizen. As such, an order requiring a party to the Convention to make symbolic reparations is not an order that one sovereign make a display of subservience to another sovereign.
Jurisdiction of Annex VII Arbitral Tribunals to Award Symbolic Reparations
Although the salute has a longstanding history in international relations, Argentina’s request in the ARA Libertad case, that Ghana be ordered to offer the Argentine flag a “solemn salute,” was not an appropriate remedy under the circumstances. Satisfaction is only an appropriate remedy, even when reparations are being made without a tribunal’s instruction, as the question of satisfaction only arises “insofar as [an injury] cannot be made good by restitution or compensation.” There is no indication in the ARA Libertad case that the case is one in which a judicial award of satisfaction would be appropriate.
But it may also be argued that Argentina’s request for a “solemn salute” is not a legitimate request for relief under international law, as judicially-mandated acts of satisfaction have been dropped from the practices of states and international organizations.
There is some precedent in Argentina’s favor in which an international tribunal has entered an award requiring one state to salute another. Greece’s salute to the French, UK, and Italian flags, following the Tellini incident, was effectively upon the order of an arbitrator, in the form of a Commission instituted by the Conference of Ambassadors, even though the demand originated as an ultimata from Italy. And, to the extent that a salute is analogous to an apology, there is more recent precedent for an international tribunal making an award in the form of moral satisfaction, such as with the I’m Alone, Rainbow Warrior, and Kellett arbitrations.
But as to the question of appropriate remedies, there is little in the way of black letter law to guide an Annex VII tribunal — or, for that matter, the International Tribunal for the Law of the Sea. The only guidance provided in UNCLOS as to the Annex VII tribunal’s ability to award remedies comes from Article 10 to Annex VII: “The award of the arbitral tribunal shall be confined to the subject-matter of the dispute and state the reasons on which it is based.” Other than requiring that there be a relation between the subject of the award and subject of the dispute, no specific guidance is provided. Article 293 of UNCLOS also provides that “[a] court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention,” indicating that UNCLOS tribunals will have to go ahead and look elsewhere for procedural rules not covered by UNCLOS’ text. The instruction for UNCLOS tribunals to look elsewhere for their rules regarding remedies it repeated again in Article 304, which provides that “[t]he provisions of this Convention regarding responsibility and liability for damage are without prejudice to the application of existing rules and the development of further rules regarding responsibility and liability under international law.”
Prior caselaw from other international judicial bodies confirms that an Annex VII arbitral tribunal would have jurisdiction to consider the appropriateness of any requested relief, and, if found to be available and warranted in the specific case, to award it. This principal was stated in the Chorzów Factory case, the PCIJ held that, when it determined that a breach of international law occurred, then it inherently had the power to award a remedy for that breach: “[i]t is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.” This maxim was repeated again more recently in the LaGrand case, when the International Court of Justice asserted its competence to consider whether reparations were due, in addition to making a determination as to whether or not there was an underlying breach: “[w]here jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the Court to consider the remedies a party has requested for the breach of the obligation.”
But the practice of the ICJ, and of ITLOS, has been to decline all requests by applicants that a forced apology be awarded as satisfaction. The ICJ has also shown extreme reluctance to even order that a breaching state be made to give “assurances of non-repetition,” and has declined to do so in both the LaGrand case and the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case. The ICJ’s reluctance to do so in understandable, as doing so would open the always lurking question of an international tribunal’s ability to actually enforce the award it makes. In contrast, finding that satisfaction can be awarded through a tribunal’s declaration does much to simplify things; it permits the injured state to feel vindication in its complaint, and can be awarded without requiring that there be any form of further action, from any party, whatsoever. Recent practice would therefore tend to weigh against a rule of international law permitting international tribunals to award satisfaction in the form the “medieval procedures,” as they were described Judge Azavedo.
In the ARA Libertad case, Argentina does have a legitimate claim that it suffered nonmaterial damages. Judge Paik, in his separate opinion to the Tribunal’s Provisional Order, specifically found that a moral injury was the likely result of Ghana’s actions, and that pecuniary compensation would not be sufficient to remedy them: “the rights allegedly violated are of such nature that compensation or any material reparation may fall short of repairing harm caused to them.”
But, even more importantly, a judicially-mandated apology would not appear to afford any legitimate form of relief. The value in an apology, as satisfaction, is in the breaching state’s acknowledgment of its wrong and its willingness to take steps to ease any ‘moral injury’ or loss of honor that the injured state may have suffered. A forced apology is by definition not a sincere apology — it can have no value as a voluntary expression of remorse or regret.
What value does a judicially-mandated act of satisfaction have, then, that would lead a state to request it in their submission before an international tribunal? The value lies in the fact that such an apology is unmistakably involuntary — that the breaching state is being forced, against its wishes, to comply with the ultimata of a larger and bullying force. It is a forced display of subservience. Such an award is of a punitive nature, aimed at retribution rather than a mere return to the status quo. The general consensus of international tribunals and commentators is that punitive damages are not a recognized remedy under international law, and they are excluded as an available form of relief by omission from Article 34 of the Draft Articles. And with good cause; an award of a judicially-mandated apology, or a judicially-mandate salute, provides nothing more than a means by which an injured party can seek the forced humiliation of another sovereign, as revenge for a prior wrong. Such a remedy is not consistent with the equality of sovereigns, or the dignity of the state.
Nor, for that matter, is it consistent with Article 2(4) of the UN Charter. In the case of a decision rendered by the ICJ, for example, the only mechanism that exists in order to force a state to carry through with the mandated apology is through referral of the matter to the Security Council. A state flouting a decision of the ICJ is, at least in theory, therefore doing so in the face of the military might that the Security Council is capable of bringing to bear. This renders an apology made upon the mandate of the ICJ as an ‘apology’ akin to that of the salute given by Greece in the face of Italy’s aggression, or that of Bulgaria in the face of Serbia’s threats. Forcing a state to debase itself through apology, or else face overwhelming military firepower brought in order to force its compliance, is neither consistent with the aims of the UN in general or the “no humiliation” rule of Article 37 of the Draft Articles in particular.
For these reasons, an Annex VII arbitral tribunal likely could not, in accordance with international law, award Argentina its requested relief in submission of the ARA Libertad case. No other international tribunal could do so either, unless such awards of satisfaction have been specifically provided for — and agreed to by the ratifying parties — in that particuar tribunal’s founding agreement.